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.