Clause 6
NHS Redress Bill [Lords]
6:00 pm
John Baron (Shadow Minister, Health; Billericay, Conservative)
I ask the Minister to consider the proposals more carefully. It is simple: at the end of the fact-finding stage, the patients would have a choice of options open to them. There is no confusion about that. If they felt that they wanted to accept the offer proposed under the redress scheme through the NHSLA, they would be at liberty to do so. Alternatively, they may seek to negotiate a mediated settlement, or enter into a resolve-type scheme. That would be up to them. The point is that different cases might require different approaches and procedures. Choice and flexibility should be available.
Moreover, the fact-finding investigation that we propose could provide the basis for settlement and assessment of liability for any proposed claim. We propose that a Mackenzie-type friend should be available to provide support and guidance for any intending claimant.
The Bill as currently drafted, particularly clauses 6 and 12, more accurately reflects patients’ priorities. As we all know, research has shown that when something has gone wrong, patients often want only an explanation, an apology and an assurance that lessons have been learnt for the benefit of others. That point has been made a number of times. Compensation does not rank very high, and the open, independent fact-finding investigation that we propose reflects those priorities. Patient safety is promoted by ensuring that lessons learnt are not lost, which is terribly important. The Government’s focus on compensation does not reflect patient priorities, however, and could subvert the purpose of the investigation. It also means that the importance of the explanation and of any lessons learnt risks being relegated.
On spurious claims, I would argue that the original Bill would have provided a demand-led, open-ended, cost-free and risk-free scheme for claiming compensation. That would have proved unnecessarily costly—there is no downside in someone having a go under the Government’s proposals—and it would have been unnecessarily wasteful. The money would be better spent on patient care.
In addition, the Government state in the regulatory impact assessment that
“the vast majority of opportunistic claims will be easily rejected”.
The Government will struggle to provide evidence for that. The success rates in clinical negligence litigation are modest, and experience shows that spurious claims are not easily rejected. Indeed, claims without merit may be compensated because it can be cheaper to settle a claim than contest it.
Likewise, the Government’s original redress scheme, under which the claimant would have been entitled to free legal assistance to help him pursue his claim against the NHS, provided every incentive for people to pursue opportunistic cases. I mentioned to the Minister on Second Reading that the Government are concerned about the matter; he will no doubt be aware that last year another Minister talked of introducing conditional fee arrangements as a way of ensuring that only claims with merit were taken forward. However, that idea was shelved.
The Government say that their costings suggestthat our scheme would cost the taxpayer a maximum of £41 million more than if the Bill was left in its original form. That figure is totally spurious. There are all sorts of holes in that claim. For example, their estimate of additional cases has a ten-fold range from 2,200 to 19,000. I would argue that the cost is not additional but inevitable, as there would have to be an investigation, whether by the NHSLA or by independent investigators. Indeed, it could be argued that our scheme, as presently envisaged, could result in cost savings. For example, there would be no need to pay a lawyer to oversee and give advice on an offer. It would not be required under our scheme.
I return to the point that if we simplify the scheme and confine it to fact finding, and not have that additional stage and the expense of determining liability, it would be difficult for the Government to argue that our scheme would somehow be more expensive than what they originally proposed.