Clause 8
NHS Redress Bill [Lords]
9:00 am

John Baron (Shadow Minister, Health; Billericay, Conservative)

I beg to move amendment No. 9, in clause 8, page 5, line 1, leave out paragraph (a).

I put it to the Committee that subsection (1)(a) is unnecessary. We agree that legal advice is necessary at the end of the process when advising on the offer and any subsequent settlement or agreement, but subsection (2) already provides for that. Accordingly, subsection (1)(a) is otiose. Indeed, under the clause the Secretary of State could allow lawyers to be involved in the process from the start.

Lawyers should not be needed, because assessing liability and compensation under the redress scheme is an internal matter for the NHSLA. It is separate from the independent investigation that we envisage. It is an executive process, not a judicial one. Legal rights are not being asserted or defended. Liability is internally assessed, not independently determined. Accordingly, the question of legal representation should not arise.

As the shadow Secretary of State pointed out on Second Reading, legal aid provides the oxygen for clinical negligence litigation. It rewards lawyers for bringing speculative claims, and for complicating them and dragging them out. It is hardly surprising that that is reflected in publicly funded clinical negligence litigation, when overcomplicated and protracted cases have such a dismal success rate. The legal costs too often exceed or are disproportionate to the compensation at stake.

The fundamental weakness in making amends, as the Committee has heard, is that people blame the law when the true culprits are the lawyers—or their abuse of the legal aid system. That raises serious questions about the contribution of lawyers, and the value that they add to the compensation process. Indeed, the Secretary of State said on Second Reading:

“It lies absolutely at the heart of the redress scheme that we will be able to give quicker responses and better compensation to patients, rather than paying greater fees to lawyers. I am quite certain that lawyers will argue, as some outside the House have already, that much more legal advice should be made available all the way through the process. If we do that, however, we might as well stick with the existing situation in which people seek legal advice and go to court. Given that the redress scheme does not rule out the possibility of court action but will in many cases, I hope, replace it, it is right that the independent legal advice should come at the end of the process”.—[Official Report, 5 June 2006; Vol. 447, c. 33.]

In that, the right hon. Lady was right.

The idea of the redress scheme is to avoid replicating the problems of the litigation system. People’s legal rights will be intact under the scheme, as the scheme does not determine rights. At the end of the process an offer may be made, in which case we agree that legal advice should be available on the offer or settlement. If the offer is accepted, the legal rights are waived as part of the settlement. However, we agree that legal advice is not necessary during redress proceedings until an offer has been made. Accordingly, under the amendment, subsection (2) would stand, but subsection (1)(a) would be deleted in its entirety.

We have heard much during our debates about the value of so-called specialist lawyers. Perhaps we should step back for a moment and consider some objective measure of their performance. I refer to a letter sent by the Legal Services Commission on 7 November 2002 to a member of the public. It stated that, since August 1999, only specialist lawyers have been able to start new cases on legal aid. In 2000-01, the overall success rate in clinical negligence cases was 23 per cent. for specialist lawyers and 24 per cent. for non-specialist lawyers. The success rate of cases after investigation—after the initial filter—was 56 per cent. for specialist lawyers and 59 per cent. for non-specialist lawyers. According to a written answer dated 17 January, the overall success rate, in the last year for which figures are available, was about 23 per cent in legally aided clinical negligence cases and 56 per cent. in cases that proceeded beyond investigation.

Those figures are revealing for two reasons. First, they demonstrate that the performance of specialist lawyers about five years ago was roughly comparable with that of non-specialist lawyers. Secondly, they show that even though legal aid has been available only to specialist lawyers since 1999, their performance in excluding opportunistic and unsustainable claims has not improved at all. The Secretary of State and the shadow Health Secretary are therefore right to be wary of involving lawyers throughout the process, because they do not appear to add much value, and their involvement would make the scheme more costly.

However, there is another reason why we should be wary of involving lawyers, other than to advise on the offer at the end of the scheme. Hon. Members on both sides of the Committee want open, transparent and non-adversarial proceedings and a fact-finding process that aims to find out what went wrong and to learn the lessons from it. As we have discussed, and I know that the Minister will agree, the priority for patients is often to get an explanation and an apology, where one is due; they want to ensure that what has happened to them does not happen to other patients. If we include lawyers at the earlier stages of the redress scheme, they will assert the rights of the trust or the patient, and the process will be less open. There will be less chance of transparent proceedings from which lessons can truly be learned.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

As my hon. Friend has developed his arguments, he has reminded me of a further point, so perhaps he will forgive me for reinforcing his arguments. As those of us who have been trained in the law know, one of the essential points in training professional lawyers is that one must first establish the facts, secondly establish the law and only thirdly give advice. If the scheme is a genuine attempt to have fact finding as a priority at the front end, those involved  will not need to know the law or the legal advice until the facts have been established, and that is wholly consistent with the way in which a professional should approach these issues. I hope that that gives my hon. Friend’s arguments some reinforcement.

John Baron (Shadow Minister, Health; Billericay, Conservative)

My hon. Friend is obviously right. My worry about getting lawyers involved at an early stage—at the fact-finding or, indeed, the fault-finding stage—is that that would not encourage the open, transparent proceedings that we probably all want. We want to encourage a culture change in the NHS, but involving lawyers, who will assert rights for both sides, will not make for openness. With that in mind, I would encourage the Committee to support the amendment, and I shall press it when the time comes.

John Pugh (Shadow Minister, Health; Southport, Liberal Democrat)

I shall be brief, not simply because of events later today, but because much of the current dispute comes down to differences of philosophy and about the type of beast that we expect the Bill to be. The issues of detail that have been picked up simply reflect that fundamental difference. The Government have said, fairly expressly, that they want the Bill to remain in its current form and to be the kind of creature that it is now. I was a little surprised, therefore, when I saw amendment No. 9, which would remove a paragraph that appeared to enhance the scheme as the Government understand it. The measure would allow

“for the provision in connection with proceedings...of legal advice without charge”,

which most people would assume to be a good thing ordinarily. The official Opposition’s position is that, through the amendments in the Lords, they are making an enhanced offer. They are trying to offer us a superior Bill, which will have merits that the current Bill does not. If the Government do not accept that substantial improvement, we have to consider whether the best, in this case, is actually the enemy of the good. Would we prefer the Bill to proceed, amended in the way that the Government wish, with this paragraph taken out? If we voted on this and the paragraph were removed and the Government got their way in every other respect, would it be a good thing? I do not think that it would.

My concern is not about the free legal advice, but about what the advice covers. There are certain issues, which we shall touch on when we come to amendment No. 22, such as the instruction of medical experts, where legal advice is a moot issue and the Government may not think that a scheme should provide that. The question of a person’s qualification for legal aid if they decide to disown the redress system or to participate in it also worries me a little. I understand that no matter how one puts oneself on the redress system, one’s legal rights in court remain exactly the same. But will the entitlement to legal aid remain the same? I cannot support the Conservatives’ proposal, although I sympathise with its spirit, simply because I suspect that at the end of the day the Government will get their way and the Bill will be worse if this paragraph is taken out.

Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)

Amendment No. 9 removes the explicit power in the Bill that allows the Secretary of State to make such provision in the redress scheme as she sees fit

“for the provision in connection with the proceedings under the scheme of legal advice without charge”.

That provision allows legal advice to be made available to patients at any point under the scheme in addition to the legal advice that will be available to all patients on the offer and settlement agreement that is secured under subsection (2).

The published statement of policy on the NHS redress scheme makes clear our intention that legal advice on any offer under the scheme and the terms of any settlement agreement is to be given without charge. Furthermore, we have previously made it clear that we intend to work closely with stakeholders when drafting the secondary legislation to determine the circumstances in which it may be appropriate to offer legal advice free of charge at other stages under the scheme.

The purpose of the clause is to ensure that patients’ rights are protected. We want to ensure that patients are able to make a genuine, informed choice when presented with options. This provision seeks to do just that. Redress is about putting things right for the patient where mistakes have been made. This has to be focused on their needs. It means effectively that the scheme must not only provide fair and effective redress but be seen to do so. On a practical level, patients will continue to litigate unless they have confidence that the scheme offers an effective and fair alternative. The clause seeks to provide that guarantee.

We do not believe it appropriate in every case for legal advice to be offered without charge throughout proceedings. To do so would not meet our aim of reducing unnecessary legal costs. There will, however, be cases or types of cases in which free legal advice will be warranted at an earlier stage than when the offer is made. We will work closely with relevant organisations when drafting the secondary legislation to determine the circumstances in which it may be appropriate to offer legal advice free of charge at other stages of the scheme.

One option that will be discussed during the consultation would be for legal advice to be provided earlier in more complex cases to enable the joint instruction of an independent medical expert where appropriate. Access to legal advice is essential for two reasons: first, to obtain an independent legal opinion on the level of financial compensation offered and secondly, because it is intended that where an offer under the redress scheme is accepted, the recipient will waive their right to bring civil proceedings in respect of the same matter. However, there may be others and clause 9(1)(a) allows for that.

We believe that if the redress scheme is to offer patients a credible alternative to litigation it has to have their full trust. We therefore believe that it is appropriate for the Secretary of State to be under an obligation to provide for free legal advice in respect of offers and settlement agreements in all cases, for the scheme to provide flexibility and for the provision of legal advice earlier in the process where appropriate. Indeed, my hon. Friend the Member for Birmingham, Erdington (Mr. Simon) pressed me on that point only the other day. As the hon. Member for Southport(Dr. Pugh) says, most patients would consider the provision to be a good thing. The Government are committed to protecting patients’ rights and to ensuring that they are supported effectively through the  process of obtaining redress. This provision plays a key role in ensuring that that objective is met.

John Baron (Shadow Minister, Health; Billericay, Conservative)

May I press the Minister on his proposal that legal assistance is moved forward in the scheme? He made the point that protecting patients’ rights would help the credibility of the system. He has used a number of arguments to challenge our position that the investigation of the facts ought to be independent, but, if he does not mind my saying so, he has too often skated over the fundamental issue, so I ask him to explain exactly what his views are on that point. He suggests that lawyers be involved earlier and that that adds to the independence, but is independence essential in principle or is it to be provided through the various safeguards, one of which he has just mentioned? Or is independence all well and good in an ideal world, but not worth the trade-off with convenience in a world of limited resources?

Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)

The amendment again brings out the essential difference between the positions of the two main parties on the scheme. I have listened carefully to the hon. Gentleman throughout and it seems to me that, throughout, independence was the main thing that the Opposition were seeking to enshrine in the scheme. That was the big thing that they wanted, rather than a more technical separation of fault finding from fact finding.

As the debate has progressed, however, I have begun to think that the main, overriding objective is separating fault finding from fact finding, because there can be no other reason not to want elements of independence to be introduced into the scheme for the most complex cases, in which a patient has to make important decisions such as on the instruction of a medical expert. Although the hon. Gentleman may not like the route by which we are doing that, I am surprised that he is not welcoming the fact that we are building in more independent advice earlier in the scheme in order to protect the patient. He seems to be wedded to a technical argument about separating fault finding from fact finding. That is a surprising position to take.

John Baron (Shadow Minister, Health; Billericay, Conservative)

The point that one is trying to make from the Opposition Benches is that one can have all the independent legal advice one likes, but that does not make the process itself independent, because the independent lawyers will be asserting the rights of either the patient or the trust when it comes to the first stage. The Government have admitted that there is a de facto two-stage process. The first stage—fact finding—is undertaken by the trust. The second stage is the determining or assessing of liability and compensation by the NHS Litigation Authority. We agree that there is a two-stage process. The question is how we import independence. Simply bringing in independent lawyers to represent one side or the other does not guarantee independence. There is a fundamental difference between us, and it is on the issue of independence. I put it to the Minister that there is no better way to ensure independence than having someone at the top independently overseeing the fact-finding stage.

Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)

As I listen to the hon. Gentleman’s comments, I think that he has betrayed his fundamental misunderstanding of what we propose. The purpose of bringing in people to provide independent advice is not, as he says, to represent one side or the other. It is to do what it says on the tin—to provide independent advice and to mediate and try to find a way forward. It is wrong to say that they represent one side or the other. As I have said to the hon. Gentleman on a number of occasions, this is not an independent scheme; it is the NHS redress scheme. That is the purpose set out in the Bill. There will be an in-house process whereby the NHS can offer redress to patients. However, throughout that we are seeking to build in elements of independent advice to ensure that a fair and sound conclusion is reached. The advice will not represent one side against another, as the hon. Gentleman suggested, but will facilitate the process of resolution and mediation. That advice may come down in favour of one side or the other, but the point is that it is independent.

John Baron (Shadow Minister, Health; Billericay, Conservative)

May I get the Minister’s position clear in my own mind? I think that he said that the process is not independent, but is owned by the NHS. That is the main purpose of the scheme. It is owned by the NHS, and therefore cannot be independent.

Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)

I have said that all along. The scheme is not independent. We had a long and detailed debate on the appointment of independent patient redress investigators. We said that we favour a scheme whereby the NHS itself is encouraged to open up to mistakes that have been made in order to facilitate a culture of learning and to place an onus on seeking resolution, rather than arguing in the courts, because at the moment the system can close down and force the patient down a legal route. The scheme is trying to approach the matter differently.

I have been pressed rightly by my hon. Friend the Member for Birmingham, Erdington, and the Liberal Democrats to build elements of independence into the process so that there can be confidence that the judgment reached is fair and that the advice given to both sides was independently sourced. That is our proposed scheme. Given that I thought that the Opposition wanted independence, I am surprised that they want to restrict the ability, in a limited number of complex cases in which people’s rights are at stake, to provide independent advice at a particularly important juncture of the case. I am surprised by that.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

The Minister has said two things that I am unable to reconcile. He said that the legal advice provided for in paragraph (a) is for someone involved in a complex case, but also that that advice would not be given to one party or the other. It is vital for anyone legally qualified—therefore part of a profession, be they employed, as a court clerk is for example, or in private practice—that they do not give legal advice. They are prevented from doing so unless it is quite clear to whom it is given. Who would their client be? Would the client be the scheme, the NHS or the patient? We need that clarified, because he seems to have described a professional mediation service rather than a legal advice provision. We need clarification.

Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)

The hon. Gentleman makes a fair point. Clause 9 lays out the broader assistance that the patients can get under the scheme: professional mediation, help with form filling and so on. Of course, the legal advice is given to the patient. It will consider their position and then advise them on whether to accept an offer.

Perhaps I did not express myself particularly well. I was just challenging the way in which the hon. Member for Billericay (Mr. Baron) put his point: that the advice would favour one side or the other to create essentially an element of conflict in the process. The purpose of seeking the advice would be facilitate resolution. However, the hon. Member for Eddisbury (Mr. O'Brien) is right to press me on the point; I should make things clearer.

The advice to the patient would deal with their rights with respect to their acceptance of a certain course of action, were they to accept the appointment of a medical expert. The terms on which that expert would be appointed and the effect that the advice might have on future settlements would need to be explained carefully to the individual. I accept that point, but I was resiling from the notion that a note of conflict would be imported into the scheme, so that the emphasis would not be on resolution. The advice would come from independent legal sources—people with a background and experience in clinical negligence cases.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

This is a vital point. In a vulnerable situation, when it seems that something has gone wrong, the one thing that people need above all else is trust and confidence that there are others on their side. Therefore, clarity about whether a professional legal adviser owes a duty to their identified client, the patient, or to the scheme of redress will become vital to sustaining the credibility of that scheme. I think that the Minister is at one with me on that.

What struck me about what the Minister just said is that although there is no question that an independent medical advisor, for instance, can help in a mediation process—it is almost part of the fact-finding process—the legal advice inevitably could, although it by no means necessarily would, be adversarial. One party’s interests could well, at times, be contrary to those of another party. Otherwise we should not have much law; we certainly would not have a legal profession. I would regard that as a good thing, but it might cause difficulties.

We need to clarify to whom the duty is owed, so that the clause makes sense. Even if the Minister is not prepared to accept the amendment now, and judging by what he said he probably is not, will he reflect with his advisers before Report on whether what is suggested would help with understanding that the intention is to facilitate fact-finding and the creation of a sense of fairness, rather than to set up early on, because legal advisers will have to advise according to the law, a system with the potential to be more adversarial, contrary to the direction that he wants to go in? If he reflects on that, some better wording might emerge.

He should bear in mind, as he reflects, a point that I shall not go into now, about the tenor of the presentation of legal advice in the cases in question, particularly when it is provided free of charge. He should not forget—notwithstanding any attitude of “over my dead body”—that lawyers are often rewarded  on a contingent basis. There is a danger, therefore, that they will have an interest in finding cause, rather than in finding result.

Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)

The hon. Gentleman makes some sensible points and it is important to think the matter through carefully, which is what we intend to do. The purpose is, of course, to facilitate consensus. The point at which any party, under the redress scheme, felt that their interest was no longer being represented, would be the point at which the scheme would part company with the individual, who would go a different way. Participation in the scheme requires the consent of both parties. The scheme member has to accept that there is a valid claim—otherwise it will not permit matters to go forward under the redress scheme. The patient’s consent and acknowledgement that they are not being bulldozed towards an unacceptable conclusion is also necessary—otherwise that patient will withdraw from the scheme. The manner in which the process is carried out is all-important.

Because that is the spirit of the scheme, flexibility will be important and, to answer the point made by the hon. Member for Billericay, it is clearly not the intention to have lawyers crawling all over the scheme, to use a colloquial phrase, at every stage. The point of the scheme is partly to reduce substantially the amount that the NHS spends on legal costs. It is right, however, to have the flexibility at certain junctures for independent legal advice to be given to a patient, perhaps at their request, looking at their interests under the scheme and advising on them in the round. That is why we are creating the power in question. We do not intend that the scheme will open the door to all kinds of legal intervention, and it will be at the discretion of those running it whether to introduce legal advice at an early stage. This has been a useful exchange, and I am glad that I have had the chance to clarify the matter.

Nick Hurd (Ruislip - Northwood, Conservative)

It seems unlikely that the Government would open the door to the scheme without undertaking scenario analysis and planning to give a sense of the potential commitment. That leads me to ask the broad question of what will define success under the NHS redress scheme. In particular, what proportion of current claims—there are something like 5,000 a year—should be redirected to the scheme to qualify as a minimum level of success? What proportion of those claims does the Minister anticipate will be eligible for early-stage legal advice? Finally, he mentioned overall savings to the NHS on legal costs. What potential savings does he anticipate?

Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)

Help may be at hand in a moment. As I explained to the hon. Member for Billericay, there are variables such as the wishes of the patient and of the scheme member. At no stage is it possible to legislate for every case and whether people will want to take them forward, so the answer will partly be discovered through experience.

For the scheme to be a success, there should be a general presumption on both sides that a resolution should be reached within its confines. It would be a failure if a case were to go through the redress process,  and then not be resolved when it reaches the important end point at which decisions must be made and people must take on board failings and own up to them. If the emphasis at that point were not on finding a resolution, and if people were to dig in and part company, it would be wasteful of public resources. The process of the scheme having been undergone, a legal proceeding would be then likely. For a case to get that far there must have been an assumption of potential liability, so a patient would understandably be likely to take the case further.

I hope that I am explaining myself well, because the hon. Member for Ruislip-Northwood (Mr. Hurd) has raised an important point. There must be a high success rate of cases being resolved under the scheme, although we cannot legislate for all of them. It would be wasteful to allow the scheme to operate only up to a point. Members of the scheme will have to accept difficult decisions rather than flinch and allow people to take their cases into the legal system. I want to see a high success rate of cases being settled under the scheme.

Nick Hurd (Ruislip - Northwood, Conservative)

The Minister is slightly ahead of me. I am interested in exploring what will define success in the proportion of the 5,000 or so claims currently in the system being redirected to the NHS redress system at its start. He is talking about the situation further down the track.

Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)

An analysis of all clinical claims handled by the NHS Litigation Authority since its inception in 1995 shows that 38 per cent. were abandoned by the claimant, 43 per cent. settled out of court, 2 per cent. settled in court in favour of the patient and 0.5 per cent. settled in court in favour of the NHS. Some 16.5 per cent. remain outstanding. We want major improvement on those figures under the scheme—that is, fewer cases being abandoned by the patient, which is a deeply unsatisfactory outcome. People feel bogged down in the process and that they cannot get resolution. The fact that 43 per cent. settled out of court again shows that the process does not work particularly well. I do not want to give the hon. Gentleman a figure of 90 per cent. or 80 per cent., as it would be wrong to do so. However, if there were not a high success rate, I would be concerned that the scheme was not fulfilling its objective. The breakdown will come. As a case moves through the system, if it has been assessed as eligible and with a case to be answered, pulling away when it reached the business end of the NHS redress scheme, where decisions and offers have to be made, would not be in the spirit of the scheme and would waste public resources. The emphasis should be on resolution within the scheme, not on forcing more cases to the courts.

Graham Stuart (Beverley and Holderness, Conservative)

One reason for the NHS redress scheme is to reduce legal costs, but it is also meant to provide a fairer scheme of redress for patients who have been wronged by the health service. If the scheme is more successful along the lines laid out by the Minister, will there not be a great increase in the number of patients and cases coming forward? I have heard that maybe as many as hundreds of thousands of cases a year might  involve some form of clinical error or negligence. If the scheme is as effective as the Minister hopes in providing swift and fair justice to patients, is a large increase not likely? Could the Minister give us any idea of the impact that there might be?

Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)

Again, that is a good question. I do not have the figures directly to hand, but maybe help will come soon. We anticipate an increase in the number of cases, as we have clearly said. One of the main attractions of the scheme to me is that it opens up the possibility of redress to people who at present might not even initiate proceedings or, were proceedings initiated, would not think that they had the will and the wherewithal to see them through to the bitter end, which is often a long time down the path. I have in mind those of our constituents who are less articulate or less wealthy, and the scheme opens up the possibility of more cases coming forward. My predecessor said that we were relaxed about that, and that is the right way to put it. Part of the logic is to spend less on the wasteful costs of pursuing cases all the way when 43 per cent. are abandoned out of court, and to channel the cost of those out-of-court settlements earlier to provide a scheme that provides something for a lot more people. That is the nub of the point and the hon. Gentleman is right to raise it.

Graham Stuart (Beverley and Holderness, Conservative)

Might I press the Minister on that point? He said that he would welcome many more cases. Can he give us some idea of the quantum? If the number of cases increase tenfold, that would be a lot more people whom the scheme and managers of the trusts recognise as having a problem. Would that be a good thing? To clarify, part of the reason for the programme is to reduce legal costs. Could he be specific about whether he expects the costs to reduce in overall quantum or that a lower amount of the overall amount spent on redress in the NHS will go on them? If the Minister is right and there is, to use my hypothetical number, a tenfold increase in the number of cases, would he not accept that the legal costs to the NHS will rise greatly, even if they reduce on each individual case? That has the potential to have a serious financial impact on the NHS, so it would be appropriate if the Minister could give us a clearer view of what the Government expect.

Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)

Help has arrived, I am pleased to say. The modelling of patient survey data carried out by the Department suggests that an improved scheme of this kind might see claims rise by anything from 2,200 to 19,500 a year. I accept that that is a broad range, but the number could increase significantly. We expect between 5,800 and 16,600 cases to be covered by the scheme in year one. It is impossible to say how many will come forward, and it would be wrong to say that there will be a certain number—who is to say what will be an accurate judgment?—so we have given a range of cases, and a range of the costs that that is likely to produce.

The point that I was going to make to the hon. Member for Ruislip-Northwood was that the scheme will be reviewed after three years, at which time we will want to see how many extra cases have come forward and how much extra has been spent on legal costs. If the scheme is conducted in the intended spirit, it should  not be necessary to incur legal costs in the early stages of the process. It should be possible for such costs to be seriously reduced. That is an important aspect of the scheme.

Graham Stuart (Beverley and Holderness, Conservative)

I welcome the Minister’s explanation. I believe that he said in an earlier sitting that trusts will be expected to initiate their own investigations in cases in which they feel that something has gone wrong. I wonder again about the idea of a quantum if the NHS changes, ceases to be defensive and automatically investigates untoward incidents. Given that I have heard from other sources that there is the potential for hundreds of thousands of such cases to happen in a year—something might go wrong at some level in one in 20 of all operations in hospitals—that could be an enormous open-ended commitment. Can the Minister comment on that? How often does he anticipate trusts triggering investigations in cases that, at the moment, they would tend to close down unless the patient were particularly insistent?

Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)

In response to a parliamentary question, I made available the numbers of clinical negligence cases trust by trust. I shall make sure that the hon. Gentleman has that information, because it will probably answer his question. To answer the broader point, we are attempting to make a serious culture change. I shall not name them, but I have seen instances in the public sector in which, because of a culture of inability to own up to mistakes, cases have been put into the legal process—letting them grind, grind away and elongate—as a way of putting off an uncomfortable situation. That has often been used as a way of managing problems but it can, clearly, be very wasteful of public resources; authorities can end up paying more than they would have done otherwise. As I said to the hon. Member for Billericay, I do not think that most people are motivated by a desire to take the system to the cleaners. However, because they do not get a proper response when they initiate something, they might take the process to the end point because they think, “They may learn the lesson if I win my case; then they won’t do it to somebody else.” They have been pushed into a very adversarial process. We are trying to do something different.

I do not think that there will be hundreds of thousands of new cases. The Department’s estimates suggest that we will make a saving on legal costs of up to £7.6 million a year. Bear in mind that we are talking about cases in which the claims are for less than £20,000, so we expect there to be a saving. However, the hon. Member for Beverley and Holderness (Mr. Stuart) is right that more cases could come forward. The Department’s modelling suggests that the NHS overall could go from a £7 million saving to a £48 million cost because of the scheme. It is likely that there will be a cost, given that we expect the scheme to work in the way that we want it to. I just do not know whether that cost will be as high as has been suggested.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

I am grateful to the Minister. He is being very generous about interventions. He kindly said that he would reflect on some of the points that I raised earlier and consider whether some more felicitous wording might be thought about before Report stage. It is a staggering statistic that 43 per cent.  of cases settle out of court. When he is considering this issue with advisers, and perhaps taking advice from others who are not in the legal profession, he should perhaps consider how much that is driven by contingent fees. It is quite satisfactory, from a lawyer’s point of view, to advise a client that their case is worth a go because there is a settlement value, when they know full well that it will not sustain all the way to court. In order to make sure that the process is both cost-effective and rights-effective, the Minister might want to reflect how much is possibly falsely directed because it is worth while to have a go for a settlement.

Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)

The hon. Gentleman makes an important point, which has been raised with me by a constituent who is pursuing a long-running case in which his son died while under the care of a mental health trust. He explained to me that the case had been going for a long time, but might never get to court. What he said was new to me. He explained that often, at the end-point, there is a greater incentive to settle out of court than to take the case to court. Perhaps that is good in some ways, in that it saves the cost of court proceedings, so there will be some savings. However, it leaves the patient in an unsatisfactory position in that there are interests working against their interests at that point. Having reached that point, people want their day in court—or some do. They want to give voice to and vent the frustrations that they have felt during the process. When the case finally gets to court and they are told, “I think you should really settle out of court”, it is deeply unsatisfactory for patients all round. The hon. Gentleman is right to raise this point. If what my constituent has told me is the case, and there is good reason to think that it is, that is another unsatisfactory facet of the system. I would welcome political agreement that that should not be the case.

I want to pick up on an important point made by the hon. Member for Southport about legal aid. Obviously, if redress is not possible under the scheme, people will retain their rights to go through the courts. It will be possible for some patients in that position to apply for legal aid in the same way as now—the Legal Services Commission makes decisions on a case-by-case basis on whether to award funding, as not everyone is eligible.

In “Making Amends”, the chief medical officer recommended that the LSC should be able to take into account whether someone had used the NHS redress scheme when making a decision on an application for legal aid. We support that recommendation, as do the Department for Constitutional Affairs and the LSC, because it supports the overall aims of legal aid by ensuring that funding is awarded in the right cases and that people are expected to explore other ways of getting redress before turning to the courts. There will be no blanket ban on legal aid for clinical negligence cases, and decisions will continue to be made on a case-by-case basis. It is reasonable for the guardians of the funds to consider whether the redress scheme was used and what conclusion it reached.

John Pugh (Shadow Minister, Health; Southport, Liberal Democrat)

The Minister is confirming what I thought. If somebody has no confidence in the NHS redress scheme and decides that they wish to go to court because of what they have heard about the scheme, and they require legal aid, their situation is technically worse, in legal terms, is it not?

Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)

I do not believe so, because they will have gone through the NHS redress process and benefited considerably from doing so, through the disclosure of information and the investigation of the facts. If there is a genuine grievance, the process will apply as it does now. Deserving cases will be taken forward, and there is no bar to that happening. However, given that we want a test of whether a case is meritorious or has potential to go forward, it is entirely reasonable for those making the decisions to consider what happened under the NHS redress scheme.

John Pugh (Shadow Minister, Health; Southport, Liberal Democrat)

If there were a complaints procedure, as there currently is in most hospitals, but somebody decided to sidestep it in order to take a case to court and then sought legal aid, would those considering the case for legal aid ask them to go back and consider the hospital’s complaints procedure first, before moving forward?

Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)

I might have to write to the hon. Gentleman on some of the details, but I understand that, under the principles of the current system, people will want to see evidence that attempts have been made at resolution before an application for legal aid is made. It is for the applicant to explain how they felt the system either did not represent their interests or was not fair to their case, which would then be relevant information for the awarders of legal aid to consider. I will come back with more detail for the hon. Gentleman on that, but the point of principle is that there should be no blanket ban on people applying for legal aid; indeed, quite the opposite.

John Baron (Shadow Minister, Health; Billericay, Conservative)

Before the Minister concludes his remarks, may I return to an earlier exchange with my hon. Friend the Member for Eddisbury? The more we involve lawyers in the scheme, the more we replicate the court system, which the redress system is designed to replace. The Minister has agreed that the redress scheme does not determine rights, so why does he think that those rights need to be protected by lawyers?

Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)

As the hon. Gentleman has heard me say, we do not intend to replicate the current process via a Government scheme. It would be very odd to enshrine what is bad about the current system in a formal scheme. The purpose of the clause is to give the scheme member and the Litigation Authority the flexibility to move the scheme on in a particular case, and a mechanism that allows them to do that.

My point about rights is that the scheme is not judge and jury. A judge deals with somebody’s rights and dispenses with them, in the sense that he decides whether those rights are invoked and whether people can claim them. That is what happens in a legal process. However, we are saying that if the offer of redress is not accepted at the end of the NHS redress scheme, the legal right is not dispensed with. Making the scheme judge and jury would mean that the wall would come down and people would be left with nowhere else to go. However, they do have somewhere else to go.

John Baron (Shadow Minister, Health; Billericay, Conservative)

I take that point, but if the redress scheme does not determine rights—the Minister has just agreed with that—why do they need to be protected by lawyers?

Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)

The scheme is an attempt to make a reasonable offer. It is an out-of-court, fast-track settlement system, not a legal process. We considered whether to apply a different test for eligibility, but to give clarity it was felt that the test in the end should be liability in tort. Therefore, to give clarity at the end of the scheme—whether or not the offer being made is comparable with what would have been achieved in the courts—there is a need to offer independent legal advice. As I said earlier, the aim is to import into the scheme an element of independent authority, so that people can move forward with confidence. The scheme is not designed to replicate the unfairnesses and weaknesses of the current system. It is to provide greater flexibility and confidence that the result that the scheme comes up with is a good one and one that people should accept. If the scheme did not have certainty at the end point, it might be doomed to failure, in that word would get out that people should not go down the NHS redress scheme route, because they would not get full redress under it. A guarantee of proper redress is needed, and this measure is intended to give patients confidence in that regard.

This has been quite a good debate. I am grateful to Opposition Members for the points that they have made. They have helped me to explain more of the Government’s intentions. I am sure that we shall return to these matters on Report. I do not believe that more felicitous wording, to use the words of the hon. Member for Eddisbury, is needed, but I do not set my face against that. I believe that the Bill as it stands is good. It gives us the flexibility to deal with cases properly but, as I said, I am sure that we shall return to these matters on Report, and I will reflect on them before then. In saying that, I ask the hon. Member for Billericay to withdraw the amendment.

John Pugh (Shadow Minister, Health; Southport, Liberal Democrat)

I beg to move amendment No. 23, in clause 8, page 5, line 9, at end insert—

‘(c) the joint instruction by those seeking redress and the scheme authorities of medical experts.'.

This would be a fairly innocuous change. Clause 8(1) already provides for the possibility of legal advice  being provided during the proceedings and a medical expert’s services being commissioned. The Minister has confirmed that medical experts, where instructed, would be jointly instructed. It is imperative for any meaningful joint instruction of a medical expert that the patient has specialist legal representation. It would not be reasonable to expect a lay person to instruct a medical expert on such complex issues.

The proposal is in line with the general cultural tone that the Government have tried to set. I am referring to allowing the NHS to own the scheme and to make whatever changes it sees fit to instil confidence in the scheme. The mechanism as envisaged would apply only to cases that had not already been resolved proactively by the scheme and cases in which patients felt that redress should be offered but the scheme authority did not agree.

Based on information provided by the NHS and by the patient’s adviser, the medical expert would assess eligibility for redress, and the scheme authority would follow the findings of the medical expert. This would introduce an element of independence into the scheme and, more important, independence over the issue of eligibility. Without the availability of this mechanism, dissatisfied patients are more likely to go to the courts and the resulting costs are more likely to be a great deal higher.—[Interruption.] I do not know what electronic gadgets hon. Members have on them that make strange noises unexpectedly. Normally, when one proposes amendments such as these, the Government suggest that, as they would be very expensive—

Anne Begg (Aberdeen South, Labour)

Order. I will suspend the Committee while we find out what is making the noise.

John Pugh (Shadow Minister, Health; Southport, Liberal Democrat)

Normally, the Government say that such amendments would be horrendously expensive to implement, and they do the exotic modelling that they seem so good at, which adds appreciable cost to it.

It is nice that in this case it is not a purely hypothetical amendment. What is being proposed reflects very much the resolve schemes that are currently being piloted and the speedy resolution scheme in Wales. It is perfectly possible to quantify their effects and to see that in many cases they save litigation costs.

However, if the empirical argument for the pilots was not good enough, there does not seem a great deal that the NHS can lose if the amendment is accepted. If the Government are correct, the NHS will recognise its own errors and offer suitable redress anyway. Unmeritorious cases are likely to be screened out first by the specialist advice and certainly by the lawyers, because under the resolve schemes, they are paid a relatively modest fee only if they are successful. If the medical report is not favourable, there is no compensation to the patient or fee for the solicitor.

Given that background of experience and the fact that the proposal is not out of kilter with the thrust of the Government’s suggestions, there should be no principal objection to the amendment.

Siôn Simon (Birmingham, Erdington, Labour)

I understand that the Bill already includes Government amendments made in the other place which are similar to those we are discussing, which provide for the possibility of making the suggested type of arrangement. I am not sure whether this amendment is the best way of introducing what I would like to see, which is a slight strengthening of the Bill, so that if this stage of the proceedings is reached without the mainstream scheme having produced a resolution, the presumption would be to proceed to a resolve or speedy resolution-type joint instruction. I have spoken to the Minister about the matter outside the Committee and I hope that between now and Report some wording can be found for an amendment that will give the Bill slightly more strength.

John Baron (Shadow Minister, Health; Billericay, Conservative)

I can see exactly where the amendment is coming from and I have some sympathy with it, but it would expand the role of lawyers by involving them in the instruction of medical experts. I have a problem with that, because it brings us back to the involvement of lawyers. I would argue that the amendment is inappropriate as the intention of the Bill, in essence, is that there should be an internal offer-making process. Its purpose is to avoid legal costs rather than attract them. The amendment would add to the complication and replicate the court system, which was referred to in a debate on an earlier clause, again raising the general issue of involving lawyers. I suggest to the hon. Gentleman that if we truly want an open, transparent and non-adversarial system, the best way of accomplishing that is by keeping the lawyers out of the scheme until we get to the end, when the offer of compensation is made.

It is also not clear from the amendment whether such experts are to consider issues such as liability, causation, condition and prognosis. We shall therefore not support it.

Andy Burnham (Minister of State (Delivery and Quality), Department of Health; Leigh, Labour)

To use the words of the hon. Member for Southport, the amendment is not necessarily out of kilter with the Bill, but nor is it necessary, because the Bill as drafted achieves precisely the aim that I believe he seeks. The amendment would insert a new subsection (2)(c), to provide that individuals must have legal advice when seeking jointly to instruct a medical expert in conjunction with the scheme authority.

First, the amendment is not appropriate, as the clause is concerned only with the provision of legal advice to individuals to whom an offer under the scheme is made. That is, the clause covers what must be provided to patients to whom offers are made. The joint instruction of a medical expert would usually be undertaken to inform decisions on eligibility or quantum, and would thus naturally occur before the making of an offer. The amendment is concerned with the provision of legal advice at an earlier stage, referring specifically to “those seeking redress”. An offer will not have been made to people seeking redress. The amendment therefore confuses the existing provisions and the important requirement for legal advice contained in subsection (2).

Secondly, the amendment is unnecessary because there is an existing power in subsection (2)(a) to enable  legal advice to be made available to people where there is a need for it at an earlier stage, as my hon. Friend the Member for Birmingham, Erdington said, such as where there is the joint instruction of medical experts. We have stated our intention with regard to independent medical experts in paragraphs 60 and 61 of our statement of policy on the NHS redress scheme for the Bill to provide flexibility for the provision of services that may help to reach an agreement to settle. It is intended that further consultation with stakeholders will take place to identify which services might be appropriate and effective for such cases. Options might include mediation services or the services of a jointly instructed independent medical expert. If in determining the facts of a case, the scheme member or the scheme authority considers that evidence from an independent medical expert is necessary, it is intended that they will also seek to ascertain the wishes of the patient to reach agreement on an acceptable person.

We accept the principle, which will be appropriate in some cases, for a jointly instructed medical expert to be engaged and that legal advice early in the process might be appropriate, as we discussed previously. That would enable the patient to be fully informed and involved in the joint instruction of such an expert. We will consult further following the passage of the Bill to determine the detail of when and how such services should be engaged. However, the Bill as drafted already allows for that to happen, and the amendment confuses the advice given at the point at which an offer is made with advice provided earlier in the scheme in perhaps more complex cases.

The hon. Member for Southport is not out of kilter with our intentions. In fact, he is very much in step with what we seek to do. I hope to assure him that there is enough in the Bill to give him confidence that legal advice will be made available where appropriate to those who need that help. However, it would not be right to accept the amendment, as it confuses the two issues. With those assurances, and having said that I accept the spirit of what the hon. Gentleman is trying to achieve, I hope that he will see fit to withdraw the amendment.

John Pugh (Shadow Minister, Health; Southport, Liberal Democrat)

The official Opposition’s position appears to be that they have a clear idea of how the process should take place and that, until a certain stage, lawyers are simply not in the frame at all. The Minister’s view is that lawyers might or might not be in the frame at various points, but that the Bill already caters for the kind of contingencies that are visualised. He has not resolved the fundamental problem of what will be done, when there is joint instruction of medical experts, to guide somebody who has no experience of the process and is working with an NHS organisation that has every experience of it. There is a problem to be solved, and we shall find out whether the Bill will eventually succeed in doing so.

I beg to ask leave to withdraw the amendment.