Clause 10 — Scheme members

Orders of the Day – in the House of Commons at 5:00 pm on 13th July 2006.

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Amendments made: No. 16, in page 5, line 29, at beginning insert 'Subject to subsection (2A),'.

No. 17, in page 6, line 16, leave out paragraph (j).

No. 18, in page 6, line 17, at end insert—

'(2A) A scheme must require a member of the scheme to prepare and publish an annual report about cases involving the member that are dealt with under the scheme and the lessons to be learnt from them.'.— [Andy Burnham.]

Order for Third Reading read.

Photo of Andy Burnham Andy Burnham Minister of State (Department of Health) (Delivery and Quality) 5:14 pm, 13th July 2006

I beg to move, That the Bill be now read the Third time.

I am pleased to be able to send the Bill back to another place, and I hope that their lordships will give it their blessing. Although there remain some differences between ourselves and Opposition Members that we have discussed today, there is a good measure of consensus on the Bill. There is a belief that this is a good Bill that will change for the better the lives of patients who have been harmed during the course of their NHS health care. I am pleased with the Bill and firmly believe that it has benefited from the scrutiny that it has received. During its passage through this House, we have given it a thorough examination. The Government have listened and responded to points raised in debate, and we have amended the Bill accordingly.

Importantly, following debate in another place, the Bill was amended to enable the scope of the redress scheme to be enlarged. The scheme may now extend to services over and above hospital services. That addressed concerns that the scheme would be incapable of adapting to the increasing diversity of NHS health care provision, as the NHS moves towards the greater provision of what have traditionally been secondary care services in primary care environments.

Following debate in Committee, we accepted that redress will now ordinarily include not only an offer of compensation, an explanation and an apology, but the giving of a report on the action that has been or will be taken to prevent similar cases from arising. I say again that that is what our constituents overwhelmingly want when they come to us with complaints about their NHS treatment. They want to ensure that people in their locality do not go through a similar experience; they want things to change for the better. We have taken on board the fact that patients often want to know what measures have been or will be taken to ensure that the mistake does not happen again.

We have also accepted that the scheme must now provide for an investigation report to be prepared and given to an individual on request. That was in response to the persuasive arguments that providing patients with investigation reports will better ensure an open and credible investigation. We believe that that will provide additional reassurance to individuals that their cases will be properly investigated, but of course if an individual believes that the investigation by the scheme member falls below the acceptable standard, the ombudsman may ultimately provide an independent review of any complaint.

Furthermore, the scheme must now require members to publish an annual report about cases dealt with under the scheme and lessons to be learned. We have taken it on board that there should be a guarantee that annual reports on lessons to be learned will be prepared and published.

Additionally, we have accepted the point, made eloquently today by my hon. Friend Mr. Simon, that there should be enshrined in the Bill the principle of the desirability of resolution under the scheme. That is something to which members of the scheme must have regard in carrying out their duties under it. I am sure that the Simon amendment will have a positive effect in creating the open learning culture in our NHS that I believe Members in all parts of the House would like to see the Bill encourage. I am grateful to him for tabling it.

We have clarified that the free legal advice that may be provided under the scheme will be provided to the individual seeking redress, and we have inserted a new provision to make it clear, that if the scheme provides for the services of medical experts, those experts will be jointly instructed by the scheme authority and the individual seeking redress.

I firmly believe that these changes significantly improve the Bill and provide greater reassurance that the scheme established under the powers in the Bill will provide what patients want. As I have said, it is those people who are less articulate and less able to see a case through to the bitter end who may benefit the most from the scheme. In cases where harm has occurred, the NHS will take up the case, investigate it and offer an apology, an explanation and, if necessary, redress. That is clearly in the interests of patients and entirely consistent with the further reforms that the Government are introducing to create an NHS centred around the needs of the individual patient. The Bill will further strengthen the NHS in that regard.

I thank hon. Members for their contributions today and in Committee. I was pleased to give Sandra Gidley her first success in Parliament. It was a good Committee and, despite differences on the issue of independent investigation, all Members contributed positively and the Bill is better as a result. I particularly thank my hon. Friend the Member for Birmingham, Erdington, who contributed constructively throughout the proceedings, and who has improved the Bill. I thank my predecessor, my right hon. Friend Jane Kennedy, who did so much work to prepare and introduce a Bill that is excellent in every respect.

I thank you, Mr. Deputy Speaker, as well as our Chairmen in Committee and the excellent team of officials in the Department of Health who provided support throughout the Bill's passage. The scheme is excellent, and it will improve the national health service, so I commend it to the House.

Photo of John Baron John Baron Shadow Minister (Health) 5:20 pm, 13th July 2006

It is with mixed feelings that I rise to speak on Third Reading. We had hoped to support the Bill, which has the worthy aim of providing an alternative to going to court for NHS patients seeking redress, but despite some lively and learned debates, both on the Floor of the House and in Committee, it is significantly weaker than the measure that was brought to the House from another place.

We thank you for supervising our debates and for your customary patience and guidance, Mr. Deputy Speaker. The principles underlying the Bill were at least tested and clarified during its passage through the Commons; I accept what the Minister said on that point, to a certain extent. I thank the Clerks for their advice on amendments and procedure, which was extremely helpful. I pay tribute to my hon. Friend Mr. O'Brien, who served as Conservative Whip in Committee. He gave us the benefit of his legal training on a number of points, and I am grateful to him.

The hon. Members for Romsey (Sandra Gidley) and for Wyre Forest (Dr. Taylor), helped to ensure that our attempts to improve the Bill were pursued on cross-party lines. I am grateful for their support, which built on the amicable partnership established by noble Friends in another place. I, too, thank all Members for their contributions, both in the House and in Committee. I commend the Minister on guiding his first health Bill through the House, although trying to pin him down on some of the issues has been a game of cat and mouse. However, we can save that subject for another day.

The overall objective of the Bill—to provide an alternative to going to court by creating a redress scheme—has been widely welcomed. As we know, clinical negligence litigation is complex, costly and basically unfair. Most people do not qualify for legal aid, yet most cases are legal aid-funded. Most clinical negligence cases fail because legal aid is the fuel for unmeritorious claims. A scheme established under clause 1 could widen access to redress and offer patients what they say they want most: a proper and honest investigation into what went wrong, an explanation and, when appropriate, an apology—there is no difference between us on that. Under clause 3, an offer of compensation might be appropriate, but financial redress usually comes far down the list of patient priorities, as a number of Members have said.

The Minister will know of my great disappointment with the Bill in its current form. I do not believe that the fact-finding stage of the investigation will inspire confidence in patients, because the investigation will not be independent. What is more, the objectivity of the fact-finding investigation is likely to be subverted by the involvement of lawyers under clause 8. Many features of the current disastrous system for dealing with clinical negligence have been imported into the redress scheme, and overall the Bill will not succeed in shifting the culture of the NHS towards one of greater openness and transparency that we all want.

Clause 6 is the offending article, because it would allow the NHS to act as both judge and jury in investigations by the trusts. We have consistently argued that someone independent of the trust should conduct the investigation. Patients go to court because they want compensation and an independent investigation into what went wrong during their treatment. In seeking to provide an alternative to litigation, we should have regard to that basic need.

Clause 6 is flawed because it does not address such a need. Instead, it allows for the investigation to be carried out by the trust under investigation. That will not inspire confidence in patients and without that confidence, the Bill is likely to fail. The Minister is aware of this complaint, which has been raised by many hon. Members and by many patient groups. However, he seems to be more concerned with reassuring NHS staff than he is with reassuring NHS patients. He has insisted that under the scheme an investigation of facts should not be independent of the trust. He has argued that trusts should have ownership of the process in order to bring about a cultural shift towards greater openness and transparency, but to most people that is entirely contradictory.

After all, what could be more open and transparent than inviting an outsider—somebody independent—in to consider all the facts? As we have heard, it is a basic principle of natural justice that no man or woman should be a judge in their own case. The same goes for investigation of cases of possible clinical negligence. Because patients understand this principle, our pragmatic complaint against the Bill is that clause 6 will not satisfy those seeking redress. It will not provide an independent exposition of the facts.

The Opposition have similar reservations about clause 8 which, as amended, will import into the scheme the very feature of litigation that has fostered a culture of finger-pointing and blame—that is, lawyers seeking to assert or defend rights. Lawyers are costly but add limited value to a fact-finding investigation. They have no place in the scheme because individual rights are not being contested. Liability is assessed, rather than determined. They are likely to soak up resources originally intended for patient care, with every incentive to push claims beyond their merits.

Lawyers need to be involved only where legal rights are being determined—that is, in relation to an offer of settlement. Specialist legal representation under clause 8 will not guarantee the independence of the investigation. It will merely encourage confusion between fact-finding and fault-finding within the scheme. Accusations of blame will contaminate the objective consideration of facts. That will lead to a more closed and defensive culture among NHS staff. Important lessons will not be learned.

Again, the Bill works against the stated aims of the Government. It contradicts the opinion expressed by the Secretary of State on Second Reading that lawyers should be kept out of the early stages of the investigation. It also flies in the face of the recommendation of Sir Liam Donaldson, who argued for a move away from the adversarial culture associated with tort.

My deepest frustration with the Bill is that it adds almost nothing to what can be done already. It is unnecessary, in many respects. NHS trusts already have the power to investigate themselves where cases of possible clinical negligence are identified. The Litigation Authority already has the power to make an assessment of NHS liability and offer compensation accordingly. The Bill simply formalises these existing powers. One of the few new things that it provides is free legal advice. That sounds good, but it could be a costly mistake, as experience of legally aided clinical negligence litigation suggests.

As amended, the Bill provides for a report on the investigation to be made available to patients, but it then goes on to establish reasons why the report can be withheld in some cases, although I appreciate the Minister's attempt at clarification on the matter. That was revealing, for it shows how the Government's priorities are focused on the interests of the NHS Litigation Authority, rather than on the needs of patients, in some respects.

In conclusion, we were happy to vote for the Bill on Second Reading, but since then we believe the Government have greatly undermined its potential. The whole direction of travel has been towards a scheme which leaves the trust acting as judge and jury in its own case while simultaneously importing the bad features of clinical negligence litigation. Having damaged the Bill, the Government do not deserve our support. For this reason and with great disappointment, I shall ask my Conservative colleagues to vote against Third Reading.

Photo of Sandra Gidley Sandra Gidley Shadow Minister, Health 5:29 pm, 13th July 2006

I rise to speak on Third Reading with mixed feelings, because I felt at many stages during the Bill's progress that there was a lot of genuine consensus based on honesty and openness, on trying to ensure that patients could have a means of redress, and on facilitating that in as many ways as possible. Unfortunately, we have reached a point where there is a fundamental difference between Members on either side of the House on how we achieve those ends.

The Committee stage of the Bill was unusually short, which was a first for me. I thank Mr. Baron for his co-operation, the Committee Clerk for his forbearance, and the Chairs. I thank my hon. Friend Dr. Pugh, who supported me in Committee. I also thank the Minister. It is somewhat unusual to put forward arguments and find them genuinely listened to and accepted. I pay great tribute to him for that.

Photo of Sandra Gidley Sandra Gidley Shadow Minister, Health

Well, I think that we are sometimes too quick to criticise and not to give credit where it is due. I am hoping to start a new trend, although I do not think that I will succeed. The amendments that the Minister accepted were welcome because they have strengthened what the patient can expect under the Bill.

The Bill was better when it came from the other place, which is why we were happy to support it on Second Reading. Sadly, the principles of independent investigation have in effect been removed. It is a struggle to balance the importance of that against the importance of all the good things in the Bill. A big part of me does not want to vote against the Bill, because it is a step forward, but losing the fundamental principle of an independent investigation will lead patients to not have the faith in the Bill that they otherwise could and should. It is with some regret, but to underline the importance of the strength of feeling on the matter of independence, that Liberal Democrats will vote alongside the Conservatives.

Photo of Siôn Simon Siôn Simon Labour, Birmingham, Erdington 5:32 pm, 13th July 2006

I am conscious that the Whips want to get home for their tea, so I will resist the temptation to dwell on what Opposition Members have said about legal advice, save to say that the whole tone of their remarks was so ill-judged as to be irresponsible and dangerous, and stems from a fundamental lack of understanding of what the Bill is about and a failure to understand the subtleties and complexities of clinical negligence and surrounding issues.

Photo of Siôn Simon Siôn Simon Labour, Birmingham, Erdington

No. Hardly anybody gave way to me in Committee or this afternoon, so I will just make my brief remarks and sit down.

I spoke more than once on Second Reading and in Committee about different ways in which the Bill could have been dealt with from the beginning and different ways in which it could have been improved throughout. Most fundamentally, if I had designed the Bill, I would not have based it on the rather limiting test of liability in tort, but tried to develop a more modern, flexible and patient-centred avoidability test. For me, that is the key remaining weakness, although there is no reason why such issues should not be considered in future. My hon. Friend the Minister said that the operation of the Bill and the scheme will be reviewed. I urge him to examine those matters in the future.

On the whole, the scheme and the Bill are good. It could make a genuine difference to people's lives at times of sickness, and to their relations with the NHS when it lets them down and they try to deal with that. I am pleased with and proud of the way in which the Bill has developed and changed. I sincerely recommend it to patients and patient consumer organisations.

My hon. Friend the Minister has provided a masterclass in listening government. He has trodden carefully and chosen wisely. He has done that with tolerance and good humour and won grudging plaudits from some Opposition Members. He has my wholehearted admiration and thanks. Until today, albeit on occasions, most Opposition Members had made a good fist of it, and my thanks and congratulations go to them.

The Bill was basically good all along. It is now immeasurably better for having been through Parliament. One cannot say either of those things about many measures. Having been involved with a Bill that satisfies both criteria, we should count ourselves lucky and commend it to our constituents and concerned organisations.

Photo of Richard Taylor Richard Taylor Independent, Wyre Forest 5:36 pm, 13th July 2006

I shall not keep the Whips from their tea for more than a few moments, but I cannot resist telling the Minister that he is in danger of making me change one of my after-dinner speeches. My limited experience of Standing Committees has been uniformly depressing and frustrating. When I served on a Committee a long time ago, a senior Member whispered in my ear that he had tabled 600 amendments and not one was accepted. Yet an amendment to the Bill has been accepted. That is absolutely brilliant and I commend the Minister for that. He will be known as a listening Minister, and I hope that that will not be perceived as a sign of weakness and that he will continue to listen and take points.

Having said that, I still have two genuine worries. Sadly, I do not believe that we conveyed clearly what we meant by independence. I hope that the involvement of legal representation in the fact-finding part of the investigation will not increase the complexity of the process, make it adversarial or increase the stress levels for patients, relatives and staff. The medical profession abominate the involvement of the legal profession, as I am sure hon. Members realise.

I hope that, in time, advantages will be perceived in aligning the redress scheme more closely with the NHS complaints procedure, as "Making Amends" suggested.

Question put, That the Bill be now read the Third time:—

The House divided: Ayes 253, Noes 160.

Division number 287 Orders of the Day — Clause 10 — Scheme members

Aye: 253 MPs

No: 160 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly agreed to.

Bill read the Third time, and passed, with amendments.