Clause 19
NHS Redress Bill [Lords]
10:15 am
John Baron (Shadow Minister, Health; Billericay, Conservative)
I thank the hon. Gentleman for answering that point, but introducing lawyers—at the end of the day, they have to represent one side or the other—regardless of how independent they may be and whatever independent expertise they may have, does not make the process independent. If we are to ensure that this process has credibility in the eyes of patients, that issue of independence is terribly important.
Both the Minister and the Secretary of State have conceded that there is a practical and logical distinction between fact-finding and fault-finding for the purposes of the scheme. First, the facts must be investigated at trust level. Secondly, the case must be passed to the NHSLA for consideration of liability and compensation. Therefore, there is bound to be a two-stage process—the Minister has acknowledged that that exists; whether it be the redress scheme, as envisaged by the Bill as amended or the redress scheme as we proposed initially—as we have consistently argued. The only issue is whether the investigation of facts ought to be independent.
The Minister has deployed a number of arguments against our simple proposal. He has stated that independence is imported simply by involving free legal advice in relation to an offer or settlement, but as I suggested to the hon. Member for Birmingham, Erdington, that is not the same thing as an independent scheme. Participation of independent lawyers in a process does not transform a non-independent process into an independent one—no matter how much one argues that.
The Minister has also suggested that free, independent medical advice imports some element of independence. That is an empty assurance, because expert advice should in any case be independent or it is not worth the paper that it is written on. If it is not independent, it is not expert opinion but advocacy, and that cannot be right.
The Minister has suggested that independence is imported through access to the courts. The Government are defining the merit of the redress scheme by the occasion of its failure—when people resort to court action—even though the scheme is supposed to provide a genuine alternative to litigation. As for complaints to the health service ombudsman and review by the Healthcare Commission, the availability of such remedies to maladministration and procedural matters is not a substitute for re-examining substantive matters.
The Minister has suggested that an independent fact-finding process would be adversarial, accusatory or finger-pointing. He has consistently made the point that an independent fact-finding stage somehow imports an adversarial review of the facts, but that makes no sense at all. There is a basic legal distinction between an adversarial process and an inquisitorial one. We have referred to the Inquiries Act 2005 and to the coroners system, not because we view the redress scheme working in exactly the same way, but rather because they provide a conceptual model for what we propose. Fundamentally, they are independent inquisitorial processes which are concerned with the establishment of fact rather than fault. There is no sense at all in which such investigation would reinforce a blame culture in the NHS.
Fundamentally, they are independent inquisitorial processes which are concerned with the establishment of fact rather than fault. There is no sense at all in which such investigation would reinforce a blame culture in the NHS.