moved Amendment No. 1:
Before Clause 1, insert the following new clause—
"METHODS OF REDRESS
The ways in which redress may be sought are through—
(a) the National Health Service Litigation Authority,
(b) a specified dispute resolution service independent of the health service in England or Wales as defined under section 6(2A) and (2B),
(c) civil proceedings, and
(d) a redress scheme as defined in this Act."
My Lords, it is some considerable time since Members of this House considered this matter in Grand Committee. The intervening time has been used extremely wisely—the noble Earl, Lord Howe, and I have had the opportunity to meet a number of the professional bodies such as the NHS Litigation Authority, ACHCEW and others. They have generously spent time explaining to us a great deal of the background to the Bill—I believe that the Minister knows that we have had that information. I think he would agree that that process will turn out to be beneficial to the whole House as we move on to the next stage of the Bill.
At the outset of our proceedings, I apologise for the absence of my colleague and noble friend Lady Neuberger, who noble Lords will know has done a great deal of work on this matter. My noble friend is abroad fulfilling a commitment she had undertaken before she became a Member of your Lordships' House. It is a matter of considerable regret to her that she is not with us, and to me, given her knowledge and expertise on this subject—as will become evident throughout the afternoon.
It is correct at the beginning of our discussions to go back to where we left off at the end of Grand Committee proceedings. Throughout Grand Committee, we returned time and again to our central concern about the Bill: the lack of independence in the process. I put on record my thanks to the noble Lord, Lord Warner, for two lengthy letters that he sent to me and to the noble Earl, Lord Howe, in which he addressed in great detail a number of concerns that we had raised. However, the central point about which we were at odds with the Government—the independence of the redress scheme—was not addressed entirely satisfactorily in those letters. That is why we have tabled a number of amendments that we will discuss in some detail this afternoon, which set out an alternative way in which the redress scheme could be made to work with greater independence, which we believe is crucial to the integrity of the scheme and the esteem in which patients will hold it.
Those arguments are principally captured in Amendments Nos. 22, 23, 26 and 42. In essence, as I and the noble Earl, Lord Howe, have set out in detail, we take on board some of the criticisms that the Government have made of our earlier proposals and ensure that there is a two-stage process for people seeking redress under the scheme. The first part of that is an independent finding of fact. We will set out later how that should be done. Once a report that covers that finding of fact is made available, someone who wants to take the matter further has a number of options.
The reason for moving the new clause now is to set out those different options—the different means of redress that would be available to anyone who had received a report of a finding of fact that there had been an adverse treatment of them by the NHS. To spell it out, those different means of redress could be the NHS Litigation Authority; a dispute resolution service; the right to go to court, which they retain; or a redress scheme as defined in the Bill.
In proposing the new clause, I make it absolutely clear that although we have reservations—indeed, we disagree—about the extent to which the Government propose in the Bill that the NHS Litigation Authority be involved in the scheme, we do not suggest that it should not be. There is a role for it to play, as there is for a Resolve-type scheme for someone, once they have had that finding of fact. So the new clause sets out the beginning of the argument that we shall make for the rest of this afternoon. I beg to move.
My Lords, whether or not the amendment is strictly necessary to the Bill, it seems to me to have its heart in exactly the right place. I have no hesitation in supporting a very great deal of what the noble Baroness said. The new clause has a number of things to recommend it, not least its value as a declaratory statement prefacing what follows. I absolutely agree that patients need to be told at the outset of the grievance process that there is more than one way for them to proceed to seek redress and that the NHS redress scheme, envisaged in the Bill, is but one avenue that they can choose.
But there is another dimension to this. We will discuss in our debate on a later group of amendments, which I shall not anticipate now, although the noble Baroness has foreshadowed them very helpfully, a key bone of contention between this side of the House and the Government—the need to separate the two halves of the redress process into its functional constituent parts, and to treat them as distinct.
What will happen initially is that the hospital whose actions have given rise to the application will carry out a factual investigation. It will examine what was done, by whom, and why. In my very firm opinion, this fact-finding investigation should remain just that. It should steer clear of attempting to lay blame or of ascribing legal liability. All that should be for later. It should confine itself to a factual explanation, and I shall say more about that later.
Once the hospital has done this, there is a very strong argument for the patient to be brought right back into the frame. The factual explanation should be presented to him with an apology, where appropriate, together with a clear statement of what lessons have been learnt by the trust to prevent similar errors happening in the future. It will then be possible for the patient to take stock. One option might be to take the matter no further. Another might be to ask the NHSLA to examine fault and legal liability under the Government's redress scheme. Yet another would be to seek a mediated settlement through a Resolve-type process. And another might be to go to court.
One of the things that has consistently troubled me about the Government's model for redress is that once an application has been made to the redress scheme, and scrutiny of the case commences, the process continues inexorably to its conclusion through investigation, summarising evidence, proposing remedial treatment, assessing fault, and arriving at an offer of financial compensation until finally the NHSLA presents the results as a sort of comprehensive redress package to the patient.
I do not think that that all-in-one process is desirable, for reasons I will come on to later. But I also believe it is not necessary, because in very many cases all the aggrieved patient wants is an explanation, an apology, and a real sense that lessons have been learnt. The money, for a lot of people, is very often secondary. But where the money is not secondary, I believe the patient should be able to choose how he wants to proceed on the basis of the factual investigation.
It is clearly for the noble Baroness to decide how far she wants to press the amendment, and what importance she attaches to it in the context of the rest of the Bill. The Minister will probably say that, in substance, it is unnecessary. However, I hope he will take on board both the rationale and the strength of feeling that lies behind it.
My Lords, I understand the strength of feeling and the rationale, although I do not necessarily accept the rationale behind the new clause, as I will explain. We have had a good rehearsal of the issues in and around independent investigation, and I will set out our views on that when we come to the amendments that are more relevant to that issue.
I want to explain why we believe that there are no good reasons for including this new clause in the Bill. The purpose of a Bill of this kind should, of course, be explained, but it should be explained alongside the legislation, not in it. Explanatory Notes have been published alongside the Bill, which make it clear that the scheme is a mechanism for enabling redress to be provided without the need to go to court. We have also published a statement of policy. Again, this makes it clear that the scheme will provide an alternative to litigation. Paragraph 14 states:
"The NHS Redress Bill does not make any fundamental amendments to the existing legal system but augments it by providing patients with the option of an additional mechanism for obtaining redress".
We therefore believe that the purpose of the Bill—that the redress scheme is another way of seeking redress—is fully explained.
The problem with "explanatory text" such as that set out in the amendment is that it is not clear whether it is explanatory or has new substantive effect. Such clauses can, paradoxically, easily cause more confusion than they were intended to solve. For that reason they should be avoided. If there is no doubt or uncertainty, extra words should not be added to legislation, even when the words are intended to be helpful. The amendment would include an express reference to the right to bring civil proceedings; but that may lead to doubt about whether there is a similar right to bring civil proceedings in other contexts and under other enactments when there is no such stated right.
Overall, as I have said, such a clause would not assist people, but cause confusion. The clause would not provide patients with any additional certainty about how redress could be sought in their particular circumstances. Redress may be sought via the redress scheme or by issuing civil proceedings. I believe that it causes confusion to suggest that redress may be sought through the NHS Litigation Authority or through a specified independent disputes resolution service.
The NHS Litigation Authority manages claims against the NHS by administering the clinical negligence scheme for trusts; it manages claims where civil proceedings have been initiated; if there is no right to bring civil proceedings, the NHS Litigation Authority will not administer the claim. The amendment seems to suggest that redress via the NHS Litigation Authority or via a dispute resolution service are two alternative routes for seeking redress, even though those routes depend on the right to bring civil proceedings. There are a number of other such reasons why we think the amendment causes confusion. I am very happy to set those out in more detail in writing to noble Lords rather than detain the House further.
I am not clear, for example, whether the amendment is intended to create a new specified disputes resolution procedure independent of the health service in England and Wales. It could be interpreted in that way. Setting up a new independent specified dispute resolution service would require wide consultation; it again raises questions in terms of costs and administration, none of which has been addressed. The inclusion of this allegedly explanatory clause at the beginning of the Bill would therefore add complication and confusion.
I suggest that we do not proceed with this proposed new clause. We will have our debate about investigation and independent investigation later, but in the mean time I have to say that we consider the amendment highly inappropriate.
My Lords, I welcome the supportive comments of the noble Earl, Lord Howe. He rightly characterised our amendment as an attempt to put patients back into the middle of the process.
I listened carefully to the Minister and his caution about including explanatory text in legislation. The more this Government come up with Bills that are set—almost entirely sometimes—in terms of regulatory powers, the more this side of the House will seek clearer explanations in legislation. However, I take on board what he said about some elements where there is a lack of clarity. I would very much welcome a letter from him setting out in detail his criticism of the proposed text.
At this stage, therefore, I am happy to take the amendment away. However, I do not resile for one moment from the general point of the amendment: the fact-finding process should be independent, and a person who feels they have a case should have a number of alternative routes that are clearly set out and made known to them. We have sought to address those deficiencies in the Bill, perhaps not perfectly in this text. We will return to them in some detail on later amendments. I beg leave to withdraw the amendment.
My Lords, during Committee a number of noble Lords raised concerns that the scheme was incapable of adapting to the increasing diversity of NHS healthcare provision. In particular, concerns were raised that the scheme should be able to cover services falling within the grey areas between primary and secondary care, especially as the NHS moves towards greater provision of what have traditionally been secondary care services in primary care environments. Since that debate, the Government have published a White Paper addressing some of the items on the health agenda.
I have taken on board noble Lords' concerns that the scheme should be able to adapt to increasing diversity of service provision and the move towards providing hospital services in the community setting. This group of amendments enables the scheme to list, in secondary legislation, services over and above hospital services that will be covered by the scheme. This will allow flexibility to bring those services falling in the grey areas between primary and secondary care within the scope of the scheme. It will also allow flexibility to adapt the scope of the scheme in the future, in light of changing methods of service provision and delivery.
We consider it appropriate to set out in secondary legislation the details of which services, over and above hospital services, should be designated as qualifying services for the purposes of the scheme. The intention is that the power will be used to cover, for example, services of a kind usually provided in a hospital, which happen not to be so provided, such as pathology laboratory services. These can be provided in hospital or free-standing units. Another example would be services that are currently normally provided in a hospital, but which may in future be more frequently provided outside the hospital setting; an example would be palliative care. A third example would be those services that fall in the grey areas between primary and secondary care. This might describe, for example, ambulance services, which increasingly take on a wider role in the services they provide.
It is appropriate that these services be set out in secondary legislation, due to the changing nature of service provision in the NHS and the potential for further services to be moved out of the hospital setting in the future, which is certainly the aspiration reflected in the White Paper. Flexibility is desired to ensure that the scope of the NHS redress scheme can be more easily adjusted in the light of changes to NHS service provision. A supplementary memorandum was submitted to the Delegated Powers and Regulatory Reform Committee on
I remain convinced that primary care should remain excluded from the scope of the scheme; that is why we object to Amendments Nos. 5 to 7. To put our objections on the record once more, it may be helpful if I deal with that now, by explaining why we did not include it in this amendment. As discussed in Committee, extending the Bill to include primary care wholesale would be problematic for a number of reasons. Primary care professionals cover their liability through private insurance arrangements, rather than NHS indemnity arrangements. Further consultation would be needed to develop a scheme that would effectively in primary care have the confidence of primary care professionals and insurers. The redress scheme has been costed only for NHS clinical work covered by the Clinical Negligence Scheme for Trusts. Following Committee, the cost of including primary care within the Bill has been modelled by departmental economists. Their modelling suggests that it would be up to an extra £56 million per year.
Amendment No. 4 therefore provides for primary medical services, primary dental services and general ophthalmic services to be specifically excluded from the new powers in Clause 1. That avoids the problems involved in extending the scheme to cover primary care wholesale. Because "primary medical services" and "primary dental services" are not defined terms for the purposes of the National Health Service Act 1977, Amendment No. 4 provides for the possibility of prescribing in regulations particular services that are or are not primary medical services or primary dental services for the purposes of Clause 1. The intention is to ensure a consistent approach when specifying services to be covered by the scheme. Where a certain service is generally provided in a hospital, but may on occasion be provided in an alternative setting—for example, a primary care facility—it is intended that this power could be used to enable the service to be covered by the scheme regardless of where it is provided. It remains our intention that the scheme will be reviewed three years after implementation with a view to considering whether to expand its scope to cover primary care, which would require further primary legislation.
Because "hospital" appears only in Clause 1, Amendment No. 9 takes the definition from Clause 18 and places it in Clause 1. It has no policy implications. Amendment No. 51 is a purely technical amendment, which prevents duplication of the interpretation by removing the reference to "hospital" from Clause 18. I beg to move.
My Lords, I shall speak to Amendments Nos. 5 to 7. In Grand Committee, my noble friend Lady Neuberger and I listened very carefully to what the Minister had to say on which services would or would not be covered by this legislation. I have also studied with great care the Minister's letter dated
Noble Lords have listened to various Ministers talking about all sorts of proposals, including the suggestion that consultants be placed in GP practices and the development of practices with special interests. They may even know that there is a unit within the Department of Health which is working specifically on the transfer of NHS staff into other settings and, I believe, is attending to matters such as what happens to staff who are TUPE-ed from the NHS to other organisations.
All that suggests the rapid transfer of services which are currently provided within general hospital settings to other places. Therefore, during the next three years, or however long it will be before this scheme is implemented and reviewed, how will people know whether the services which they have received in a primary care setting which have been adverse are within the scope of this redress scheme or not?
Why is the scheme such a threat to primary care services? We are talking now not just about GPs, who have their own insurance schemes to which they have to subscribe. Why is it not in their interests as primary care employees and practitioners to have this scheme, the basis of which is to avoid costly and lengthy litigation? It is a phrase that we have not heard for a very long time from the Benches opposite, but the Government were once committed to joined-up government. This seems to be its very opposite. Nothing that the Minister said, either in his explanation of the government amendment or in his letter, has shed any light on which services will or will not be covered by the scheme. He talked about services which are normally provided in a hospital setting but may occasionally be transferred to a community setting. Where, for example, will podiatry services for people with diabetes be—a service which is at the moment carried out within a general hospital setting but which is very rapidly likely to be transferred to community services? Will it be covered or not? I do not think that the Minister has come up with a convincing answer yet as to why there should be such a widespread exemption.
My Lords, I take that as an invitation to have another go. As I said in my letter and in my opening remarks, I acknowledged that we could not be absolutely certain precisely which and at what time services would be taken out of a normal hospital setting and made available in a community setting. A good example of this is emergency care practitioners in ambulance services. Different ambulance services at the moment have different ranges of emergency care practitioners doing different duties. The location from which forms of healthcare are delivered is changing quite rapidly, not just in this country but in all countries. In the White Paper, for example, there are six projects in particular specialties—urology is one, ENT is another—where we will look for new clinical pathways for people. We will work with the professions to gauge the safety and feasibility of taking more of the work in these specialties traditionally done in a hospital into a community setting.
Given that we know the direction of travel, we think it sensible in this Bill to take provisions to put in secondary legislation, and to communicate to patients which services are to be covered by the scheme. I tried to explain clearly—both in Committee and today—why we did not extend this scheme to primary care. At the moment this scheme is intended to cover hospital-type care only. Primary care would be excluded from the scope of the scheme. Costing of the scheme was made on that basis. I gave in my speech the extra costing of extending this Bill to primary care, even if we could speedily do it. On the estimates available to me, they are of the order of £56 million. However, we have the complexity caused by the fact that GPs and other primary care practitioners have a totally different professional indemnity system from the NHS hospital indemnity system. We cannot simply translate that system into the terms of this Bill. To do that, it would need to be looked at again and there would need to be wide consultations with the primary care interests.
In the mean time, we do not want to hold up the Bill until all those consultations in the primary care field have been completed. We do not know where they will take us, so in our view it is better to get on with the redress scheme being provided by the Bill, but to make it flexible enough to deal with a range of services that we know are likely to end up being provided outside the hospital setting in the coming years.
moved Amendment No. 3:
Page 1, line 9, leave out "in a hospital (in England or elsewhere)"
On Question, amendment agreed to.
moved Amendment No. 4:
Page 2, line 3, at end insert—
"(4A) For the purposes of subsection (2), services are qualifying services if—
(a) they are provided in a hospital (in England or elsewhere), or
(b) they are of such other description (including a description involving provision outside England) as the Secretary of State may specify by regulations.
(4B) Regulations under subsection (4A)(b) may not specify services of any of the following descriptions—
(a) primary dental services,
(b) primary medical services,
(c) services provided under section 38 of the National Health Service Act 1977 (c. 49) (general ophthalmic services),
(d) services provided under section 41 of that Act (arrangements for pharmaceutical services) or by virtue of section 41A of that Act (arrangements for additional pharmaceutical services), and
(e) services of a kind which may be provided under section 41 of that Act, or by virtue of section 41A of that Act, which are provided under Schedule 8A to that Act (local pharmaceutical services schemes) or section 28 of the Health and Social Care Act 2001 (c. 15) (local pharmaceutical services pilot schemes).
(4C) The references in subsection (4B) to primary dental services and primary medical services are to primary dental services and primary medical services under Part 1 of the National Health Service Act 1977 (c. 49), except that the Secretary of State may by regulations provide that services of a description specified in the regulations are not to be regarded as primary dental services or primary medical services for the purposes of that subsection.
(4D) Regulations under subsection (4A)(b) or (4C) may, in particular, describe services by reference to the manner or circumstances in which they are provided."
[Amendments Nos. 5 to 7, as amendments to Amendment No. 4, not moved.]
On Question, Amendment No. 4 agreed to.
My Lords, concerns were raised in Committee that the Bill does not mention explicitly the making of an apology as obligatory under the scheme. In Clause 3(2), it currently provides that the scheme must provide for,
"(a) the making of an offer of compensation in satisfaction of any right to bring civil proceedings in respect of the liability concerned, and
(b) the giving of an explanation, except in specified circumstances".
I offered to reconsider the drafting here.
A 2002 MORI survey commissioned for Making Amends found that the main response wanted by 34 per cent of people affected by medical injury was an apology or explanation. In that light and from the points made by noble Lords in Committee, I consider it appropriate to provide in the Bill that in cases to which the scheme applies, it must provide for the giving of an apology in addition to the giving of an explanation and the making of an offer of compensation. Amendments Nos. 11 and 13 bring this into effect.
Amendment No. 10 inserts the words "redress ordinarily to comprise" into Clause 3(2), while Amendment No. 14 removes the words "except in specified circumstances" and replaces them with,
"but may specify circumstances in which one or more of those forms of redress is not required".
I hope that this makes what we intend clear: that all three forms of redress will usually be required to be offered. This is the expectation. There may be exceptions, but ordinarily an apology, an explanation and compensation will be provided. I hope that this meets the previously expressed concerns of noble Lords over how often exceptions would occur.
It is intended that the power provided by Amendment No. 14 to specify circumstances in which one or more forms of redress are not required will be used sparingly. However, there will be cases in which it may be appropriate to make use of the power. It is intended that the cases in which exceptions may be appropriate will be set out in secondary legislation on the scheme following full consultation with stakeholders. For example, there may be cases in which the patient makes it clear that they do not wish to receive financial compensation. As the noble Earl, Lord Howe, pointed out in Committee, it may be inappropriate to make offers of compensation in such circumstances. On other occasions it may be wrong to offer an explanation—for example, in cases where someone is going through the redress scheme following the death of a relative. There may be issues of clinical confidentiality about which the patient's relative is unaware and which it may be inappropriate to divulge. There are a number of these possible exceptional circumstances for which we have tried to provide and which we will specify in secondary legislation. I beg to move.
My Lords, perhaps I may start by welcoming Amendment No. 13 in response to a concern raised by me and others in Grand Committee, which the noble Lord was good enough to acknowledge both at the time and in his subsequent very helpful letter. For many people who feel that they have been badly treated in hospital, what they are looking for above anything else is an explanation of what happened and an apology for the mistake. It is therefore very gratifying that the Government have felt able to agree to our suggestion that the giving of an apology should feature as an integral part of the redress process in the Bill.
We all appreciate that an apology will not be warranted in all cases. Sometimes a grievance will be investigated and the finding will be that everything possible was done for the patient, both correctly and in a timely fashion, but that the outcome, through no one's error, was not what had been hoped for. In a case like that, an apology would be inappropriate, but the patient would still be entitled to an explanation of what had happened and why. That is why, while welcoming Amendments Nos. 10 and 13, I must voice a mild degree of concern about Amendment No. 14, although that concern has been softened somewhat by the comments that the Minister has just made.
As I have said, there may be circumstances where an apology is not required, and where compensation is not required. But I suggest that in just about every case where proceedings have commenced and an investigation is being carried out, the patient or his representative will expect and be entitled to an explanation. The wording of Amendment No. 14 throws up the possibility of widespread exceptions to that principle. I hope that that is incorrect and that the Minister can reassure me that it is not the Government's intention to discourage the giving of an explanation in any other than very exceptional circumstances of the kind he outlined.
My Lords, I am happy to give that assurance. It is certainly not our intention to do that; it would defeat the objectives of the scheme. One of those objectives is that people should learn from their mistakes, and part of that learning process is explaining to people what has gone wrong and why it happened.
My Lords, in moving this amendment, I return to an issue that I raised in Grand Committee—that of lessons learnt. We have already spoken about the need for an aggrieved patient to receive an explanation and, where appropriate, an apology, but there is a third thing most patients want when they seek redress: a clear sense, when the investigation is complete, that appropriate lessons have been learnt, to prevent similar mistakes from happening to other people. The Government's Amendment No. 36 is welcome. It speaks of the requirement for members of the scheme to publish an annual report about cases brought under the redress scheme and the lessons to be learnt from them.
I am not sure that goes quite far enough, however. Receiving an annual report with cases anonymised is not quite the same thing as being presented with an action plan flowing from your own particular case, in which, let us say, the chief executive of a trust or the head of a clinical department writes you a personal letter setting out exactly what has been or is being done to improve procedures, training or whatever is necessary, in response to the facts uncovered by the investigation of your case. When genuine lessons have been taken on board by the hospital, that is what the patient will want and should have, whenever it is appropriate and relevant. I hope therefore that the Minister will not dismiss my amendment, which attempts to address a central issue for patients in such circumstances. I beg to move.
My Lords, in Committee, as the noble Earl, Lord Howe, has said, a number of noble Lords raised concerns that lessons learnt under the scheme were not to be made public. The redress scheme has a number of aims, among them the desire to create a cultural shift within the NHS towards a greater willingness to learn from mistakes and to improve the quality of service offered to patients in the future. Throughout consideration of this Bill, there has been no difference between any of us regarding that purpose.
Clause 10(2)(h) enables the scheme to impose a new duty on scheme members, to charge,
"a specified person with responsibility for overseeing the carrying out of", the scheme by the scheme member and,
"advising the member about lessons to be learnt from cases involving the member that are dealt with under the scheme".
However, we have listened to the concerns of the noble Lords about demonstrating a more public commitment to ensuring that lessons have been learnt and acted upon. Amendment No. 36 enables the scheme to require scheme members,
"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".
The annual report is intended to demonstrate to patients within a scheme member's locality that lessons are being learnt from the redress scheme and that the scheme is being used effectively to improve local delivery of services. Guidance on best practice will set out how best to ensure patient and clinician anonymity when preparing and publishing these reports. To support the close links between the NHS complaints procedure and the redress scheme, it will be open to scheme members to combine the annual report on the redress scheme with their annual report on complaints.
Amendment No. 37 would provide that the annual report must also include details of the nature and incorporation of the lessons learnt. I believe that the drafting of Amendment No. 36 makes it clear that the nature of the lessons learnt is to be covered. This aspect of Amendment No. 37 is unnecessary. Similarly, it is not necessary to stipulate that the report must detail how lessons learnt have been incorporated. This is implied by the duty.
This amendment would introduce too much detail into the Bill, as it seeks to cover areas best dealt with as good practice guidance. Provision is already in place to ensure that learning from mistakes is taken forward and incorporated. The Bill already provides, at Clause 10(2)(h), for the appointment of a person with responsibility for ensuring learning from mistakes within the organisation. This person's responsibility will be to ensure that lessons learnt are incorporated and that a culture of learning is established within the organisation concerned. I support Amendment No. 36 and suggest that Amendment No. 37 be not moved.
My Lords, I apologise. I wondered whether the Minister might deal with Amendment No. 38, which is about the need to ensure that individuals who have had cause to seek redress should be informed. From what he has said, I understand that there is an intention to make sure that general information is made available about lessons learnt. However, there is nothing to make it absolutely clear that that would get back to the individual concerned, who is perhaps the person who needs and wishes to have such information the most.
My Lords, I am sorry. I got tangled up in my amendment numbers. I am grateful to the noble Earl, Lord Howe, for coming to my rescue. I apologise. I did have some more things to say. I am happy to delight the House with further and better particulars.
The noble Baroness mentioned Amendment No. 38, which I had not thought to pre-empt until she had spoken to it. The amendment provides for the annual report to be submitted to the Healthcare Commission. It also provides that copies of the report will be made available to all who have sought redress during the period covered by the report. We suggest that this level of detail is not appropriate to be set out on the face of the Bill. Government Amendment No. 36 provides for the report to be published. It is clear that this information will be available to the public, including the Healthcare Commission and patients whose cases have been considered under the scheme. It is not for the Bill to seek to determine how best to assist the Healthcare Commission in its operations. It is appropriate for the Healthcare Commission itself to determine the types of information that it requires and subsequently to make it clear that it requires that information. That is the way it behaves in all sorts of other areas—it requests information to enable it to discharge its duties and responsibilities.
With regard to the proposal that copies of the report be made available to each individual who has sought redress under the scheme, that is already provided for in the requirement that the report will be published and therefore will be available to the public. The method by which each scheme member publishes its report is a matter for local discretion subject to good practice guidance rather than primary legislation. We envisage, however, that guidance may advise that reports be available to all patients within a scheme member's locality to demonstrate that lessons are being learnt from the redress scheme and that the scheme is being used effectively to improve local delivery of services.
We also do not support Amendment No. 12, which I should have spoken to earlier. This amendment is inappropriate as it would commit scheme members to providing such a report on all cases falling under the scheme. However, there will be cases where an error truly is a mistake arising from circumstances that are unlikely to occur again. In other cases, it may not be possible to identify an immediate cause or an obvious solution to prevent a similar error from occurring. In those cases, an explanation and an apology will already be offered and a report on action to be taken to reduce the risk of the error being repeated would be inappropriate and meaningless. At worst, it could exacerbate an already emotive situation. However, I accept that patients harmed during their healthcare often wish to be reassured that similar incidents are unlikely to occur again. That is why we propose Amendment No. 36, which amends Clause 10 to require scheme members to publish an annual report. Those are my reasons for not accepting the non-government amendments.
My Lords, I thank the Minister for his reply. I am, of course, a little disappointed with his reaction to Amendment No. 12. It seems to me that government Amendment No. 36, although very welcome in itself, provides for a process that is a little impersonal and after the event, if I can put it that way. We all subscribe to the aspiration that there will be a culture of learning instilled into the NHS by virtue of this scheme. There is no argument between us on that. However, I thought that there was merit in the suggestion that where appropriate—I underline the words "where appropriate"—the patient himself should receive, as soon as possible after the investigation, a short personalised report indicating what action had been taken in the hospital for the benefit of future patients. While the noble Lord is right to say that that would not be applicable in every case, the Government's Amendment No. 14, which we have just debated, would allow for exceptions to be made in appropriate circumstances, so I would not have thought that the reasons that the Minister gave were necessarily all that compelling. Nevertheless, I note that he is resistant to this idea and I will not press it. However, this has been a useful debate. I beg leave to withdraw the amendment.
moved Amendments Nos. 13 and 14:
Page 2, line 26, at end insert "and
( ) the giving of an apology,"
Page 2, leave out line 27 and insert "but may specify circumstances in which one or more of those forms of redress is not required."
On Question, amendments agreed to.
My Lords, in moving Amendment No. 15, I shall speak also to Amendment No. 17. The Minister has told us that the intention for the NHS redress scheme is that it should not compensate people at a lesser level than they would have been compensated at if they had pursued their remedies through civil litigation. If the Government really mean that, it is illogical for them to reserve the statutory right to set upper limits of financial compensation. The amount of compensation offered should be assessed on the basis of the actual loss, plus damage sustained, as well as pain and suffering, just as it would be in a case that was litigated. That principle applies not only to the overall amount of compensation but to any individual head of claim.
I fully acknowledge that the scheme is intended to address those claims that fall into the lower end of the value range. The Minister, in his letter of
My answer to that is that there is a difference between trying to set an upper ceiling on the size of claims intended to be dealt with by the scheme and the desirability of sticking rigidly to that upper ceiling if, during an investigation, it becomes apparent that the claim is worth more than the amount of the ceiling chosen. If a claim is found to be worth slightly more than £20,000 it would seem ridiculous to miss the opportunity to resolve that claim for that rather bureaucratic reason. If that were to happen, there is only one realistic option for the patient, which is to incur the expense and the additional stress of going to court. That is in no one's interests, and it argues for some flexibility to be built into the nominal upper limit.
In his letter, the Minister expressed the view that there would not be any advantage to the NHSLA knowingly offering less compensation than would be received through the courts because, following legal advice, the offer would be rejected and renegotiated. If the offer were at or near £20,000, and the patient's legal advice was that it ought to be worth more, the patient might nevertheless be persuaded to take a pragmatic view and accept the offer, because not to do so would incur untold additional anxiety and delay. The existence of a strictly enforced upper ceiling on claims points up very graphically the trade-off at play in the scheme between ease of operation and natural justice. I would like to persuade the Minister—although I know that I will not—that in this sense as in a number of others natural justice is a regrettable casualty of this scheme and that we should therefore do all we can to minimise its loss. One way to do that, in my respectful view, would be to abandon the idea of a strict upper limit on total settlements and on individual heads of claim. At the margin, fixed financial ceilings will distort decision making and deny patients the full extent of the redress that they would otherwise have received. I beg to move.
My Lords, it is intended that the redress scheme will provide for financial compensation to be offered, and Clause 3(4) sets out some of the parameters of such financial compensation. It allows the scheme to specify upper financial limits for compensation. As drafted, this may be an upper limit on the total amount of financial compensation that may be included in an offer under the scheme, or an upper limit on the amount of financial compensation that may be included in an offer in respect of a particular matter, or both of these. If no total upper limit is specified then an upper limit on compensation for pain and suffering must be specified.
That is the starting point. It is our stated intention that financial compensation offered under the scheme will be broadly equivalent to the level of compensation that would be provided in a successful claim before a court. The noble Earl, Lord Howe, acknowledged that as one of the considerations that would be taken into account by the NHS Litigation Authority in making an offer.
In Committee, a number of noble Lords raised concerns that patients might not receive financial payments equivalent to those they might expect from the courts. Concerns were also raised that if limits were imposed on particular elements of a claim, more people would be driven to the courts rather than encouraged to use the scheme. As I stated in Committee, it is not currently intended to use the power in Clause 3(4)(d) which allows upper limits on individual heads of damages. We do not intend to impose caps on the level of special damages that may be offered under the scheme. I said I was willing to consider removing it.
Amendment No. 16 removes the power in Clause 3(4)(d) to specify an upper limit in respect of individual heads of damages, other than a single overall upper limit in respect of damages for pain and suffering. The effect of the amendment would be to allow the scheme to provide either for an overall upper financial limit, or an upper limit on the amount of damages for pain and suffering only.
This amendment will prevent the scheme from providing for a double cap. It will not be possible to have an overall cap on the total amount of financial compensation and a second cap on the amount that may be offered in respect of a particular matter. The scheme will not be able to specify any other limit on what may be included in an offer of financial compensation. No caps on special damages will be possible. The intention is that the scheme will provide for offers of financial compensation to be broadly equivalent to the level of compensation that would be provided in a successful claim before a court.
I remain aware of noble Lords' concerns over the appropriateness of setting an upper financial limit for claims under the redress scheme. I understand the arguments that the noble Earl, Lord Howe, has offered on Amendments Nos. 15 and 17, which would remove the power for the scheme to set any upper financial limit. I was very pleased that his expectations of my response were extremely low. I do not wish to disappoint him. However, we believe it is vital to the successful operation of the scheme that such a limit is set. Concentrating on the lower-value claims will do the most to reduce disproportionate legal costs.
I remind noble Lords that we arrived at the figure of £20,000 as the upper limit on the amount of financial compensation that may be included in an offer under the scheme after examining existing legal claims. The number of low-value cases settled by the NHS Litigation Authority in 2002–03 and 2003–04 was 4,090 and 5,690 cases respectively. That shows that legal costs in those cases were disproportionately high for cases where the level of settlement was up to £20,000. Cases settled where the award of damages was above £20,000 show a significant reduction in the proportion of legal costs to damages. That is why we settled on the £20,000 limit.
Setting an upper limit supports the scheme's aim of offering a swift response to the more straightforward and therefore lower-value cases and allows scheme resources to be focused on cases where such an approach would be of most benefit to patients. It is felt that complex cases should continue to be dealt with outside the scheme. As I have stated, it is intended that offers made under the scheme will be broadly equivalent to an offer made under a successful claim before a court. Where a case is felt to fall just above the £20,000 threshold, it may be appropriate for that case to be referred to the Clinical Negligence Scheme for Trusts, and resolved outside the scheme.
We have undertaken to review the working of the scheme after three years, with a view to considering whether it would be appropriate to order the limit, or apply a limit on the pain and suffering element only. We have not ruled out change, but we must start somewhere. It is most appropriate to start with the ceiling of £20,000. Because provision is made to settle that limit in secondary legislation, it will be easy to adjust that limit without coming back to Parliament for amendment to primary legislation. That is why we disagree with the noble Earl, Lord Howe, although I acknowledge the eloquence with which he advocated his case.
My Lords, the Minister is very kind and I thank him for his reply. I should make clear that I have no quarrel with the concept of what one might call an indicative limit. We all agree that the lower value cases should fall within the ambit of this scheme. But the existence of a strictly enforced ceiling will prove a barrier to access to justice for many people. You can easily imagine that, at the start of an investigation, the NHSLA and indeed the patient will believe that the claim falls squarely within the financial ceiling laid down. As the investigation proceeds, however, it may become apparent that the claim is in fact worth rather more than £20,000. If it is going to be worth only a little bit more than £20,000, then it would seem perverse to abandon the process altogether when, without much extra work, an offer could quite easily be made.
I note what the Minister said about the clinical negligence scheme for trusts. That may prove a satisfactory safety valve for the type of cases that I have outlined. In the end, however, we come down to the "suck it and see" approach that the noble Lord outlined towards the end of his reply. It remains to be seen how this scheme will operate in practice. I have indicated that a bit of flexibility at the outset would not be amiss, but the Government have resisted that view. I can do no more than to sound a warning and, like the Minister, hope that I am wrong. I beg leave to withdraw the amendment.
moved Amendment No. 16:
Page 2, line 40, leave out from beginning to end of line 3 on page 3 and insert—
"(5) A scheme that provides for financial compensation to be offered—
(a) may specify an upper limit on the amount of financial compensation that may be included in an offer under the scheme;
(b) if it does not specify a limit under paragraph (a), must specify an upper limit on the amount of financial compensation that may be included in such an offer in respect of pain and suffering;
(c) may not specify any other limit on what may be included in such an offer by way of financial compensation."
On Question, amendment agreed to.
[Amendment No. 17 not moved.]
Clause 4 [Commencement of proceedings under scheme]:
My Lords, in this group of amendments—and, indeed, the next—we return to issues on which my noble friends Lady Neuberger and Lady Tonge and I probed the Government in Grand Committee. They all seek clarity about who may commence proceedings under the scheme, and how that might be done.
I return to these matters because, while the Minister set out his response in a letter with some clarity, he has not sought to make the Bill itself any clearer. Most of the people who, unfortunately for them, have to commence proceedings will not see the Minister's letter, but they will see the Bill. I am a great believer in having information in the right place, so that it is easily accessible.
Amendment No. 18 seeks to make clear that this is not an unending process, and that it should be known that redress can be only a one-time act—it is not something to which they can return on the same matter.
Amendment No. 20 makes provision for commencement of a scheme by a member if asked to do so by an individual. In his letter of
"I would like to take this opportunity to reassure you that it is fully intended that individuals will be able to apply to the scheme directly and thus initiate proceedings under the scheme".
I would like to take the opportunity to invite the Minister to make that clear in the Bill, where his intentions will be paid a great deal more heed. In doing so, it would not—as the Minister goes on to suggest in his letter—give the impression that it is only an application-based scheme. That was one of his reasons for not doing so before.
The amendments that we discussed previously about openness and the need for reporting in no way undermined what the Minister spoke about at great length, with which we agree. That is that the measure should bring about a change of culture within the NHS. It should be something that NHS staff and organisations feel free to initiate for the benefit of patients. I do not believe that stating in the Bill that an individual may trigger the scheme in any way undermines that.
Finally, Amendment No. 21 seeks to deal with an issue that has been raised again by the Law Society. In his letter to me and the noble Earl, Lord Howe, the noble Lord said that he did not wish to have such a provision because he thought that limiting the power to bring proceedings under the scheme to the individual who had been harmed would be too narrowing. I understand why he wishes to do that, but this amendment is here to seek from the Government a response to a slightly different but related matter, which is how it would be possible to prevent an individual, who is not the individual who has directly been harmed, from deciding that a case should go through the redress scheme—rather than by any of the other avenues that may be open, such as litigation—and thereby making the individual take an easy and quick route that may not be most beneficial to them. That is the loophole that the amendment is seeking to probe. In the Minister's full letter to us he did not address that matter, which is why I tabled the amendment. I beg to move.
My Lords, I listened carefully to the noble Baroness's advocacy of the three amendments. I am afraid that we oppose Amendment No. 18 on the grounds that it may be appropriate to provide for other circumstances in which proceedings under the scheme may not be commenced. The amendment would remove any flexibility. The only circumstances in which proceedings could not be commenced would be where an offer had previously been rejected. There may be other circumstances in which it may be appropriate that proceedings may not be commenced; for example, when it is obvious from the outset that a case would fall well over the financial limit for compensation under the scheme. Another example might be where an offer under the scheme in respect of the same injury had already been accepted.
We intend to consult stakeholders further when drawing up the secondary legislation, and we will consult about the circumstances in which proceedings may not be commenced. We would wish to retain flexibility to make appropriate provision for other such circumstances following those discussions. When the scheme is first established, the regulation and scheme will be subject to affirmative resolution procedure and there will be an opportunity for full parliamentary scrutiny of the use of the power.
Amendment No. 20, in contrast, seeks to place a provision in the Bill that proceedings must be commenced where the patient wishes to seek redress under the scheme. The Bill has powers which will enable the scheme to specify who can commence proceedings. It is our firm intention that individuals will be able to apply to the scheme directly. The details of who may make applications will be covered in the scheme itself, so will be part of the secondary legislation on which we shall again consult stakeholders.
However, we intend that patients will be able to apply directly to the scheme. Where an application is made, it is intended that the scheme will require the relevant scheme member to investigate and to send the case to the scheme authority for a decision on eligibility. Where a case is eligible under the scheme, the scheme member will then make an appropriate offer of redress, but it will be appropriate only where the case falls within the scheme. There may be a small number of cases in which it may be appropriate for proceedings not to be commenced. For example, where it is clear, again at the outset, that the case would far exceed the financial limit of the scheme, it may be appropriate for the case to be referred directly to the clinical negligence scheme for trusts to avoid delay.
The noble Baroness raised points on Amendment No. 21. In our opinion, this amendment overlooks an important aim of the scheme. Scheme members should identify cases that potentially fall within the scheme and activate the scheme without waiting for the patient to approach them. It is intended that the scheme will bring about an active approach with scheme members taking steps to identify qualifying cases. However, Clause 4(2)(f) has powers to enable the scheme to provide for the notification of the commencement of proceedings. It is intended that, if the scheme is activated by a scheme member rather than by a patient, the scheme will provide that the scheme member should notify the patient that proceedings have been commenced. Patients in those circumstances would not be kept in the dark.
If the patient does not want his case to proceed, the powers in Clause 6(2)(f) enable the scheme to make provision about the termination of the proceedings. If the patient stated that he did not want his case to proceed, we intend that the scheme member will be required to terminate the proceedings.
The answer to the noble Baroness's question is that the issue will be covered in secondary legislation. Those are our grounds for objecting to these amendments.
My Lords, I thank the Minister for the clarity he has added, which is now on the record. I did not find all his answers compelling and I do not believe that there is yet sufficient clarity about the power of individuals to trigger this scheme.
I take entirely his optimistic view that scheme members, principally trusts, will be only too ready and willing actively to trigger things on behalf of people whom they feel come within it. What if they do not? That is the still-unanswered question. What is the power of an individual and how will he know that he has the power to trigger this scheme? I did not find the Minister's answer that there may be other circumstances, or indeed that there may be circumstances when it was not appropriate to commence this scheme, compelling for not setting out the simple fact that this scheme is available for individuals to trigger. When this comes to work in practice, just like in complaints procedures now, there has to be an understanding of where it fits within the range of different ways of addressing the question of redress.
I welcome what light the Minister has shed on the matter, but suggest that there is more yet to come. At this stage, I beg leave to withdraw the amendment.
My Lords, this amendment is on a similar thing, and the Minister touched on the duty of scheme members to inform a patient when a mistake has been made. I note what he said about the provisions that already exist within this clause on the notification of commencement proceedings under the scheme. That is slightly different from what is being asked for in the amendment—that there be a duty on scheme members to inform a patient when a mistake has been made.
Here we return to the main part of Making Amends which has not made it into this Bill, namely the duty of candour, which the Chief Medical Officer said should form any part of a redress scheme. We talked about that at considerable length in Committee. We on these Benches have not yet been convinced by the Government on it. The proposals put forward in the clause do not necessarily add up to what we are asking for. Quite simply, an individual should be informed when a mistake has been made, whether or not the redress scheme is activated. If the Minister goes by the answers that he gave to the previous group of amendments, there can be all sorts of reasons why somebody would not be told—for example, the adverse incident that had happened to them was not considered to be eligible within the terms of the redress scheme. They would not be informed of the mistake. For those reasons, I beg to move.
My Lords, the noble Baroness will not be surprised to discover that we do not support this amendment. We think it unnecessary in the light of the existing powers that we have taken in Clauses 4 and 5. I set out many of the reasons in previous areas, and will not detain the House much longer on this issue. I am happy to set out the arguments again for her in writing, in the hope that it will reassure her.
We discussed the duty of candour in Committee, and the noble Baroness has drawn our attention to it again. Just to remind the House, both the GMC and the Nursing and Midwifery Council are independent, self-regulatory bodies and, after consultation with key stakeholders, it was not considered appropriate for the Government to require either body strictly to enforce an additional duty of candour. We did not lightly cast aside the proposals in Making Amends. We consulted very carefully on that issue and what I have just described is the outcome of those consultations.
My Lords, I thank the Minister for that response. However, having listened carefully to him, I think his response still points up a somewhat odd omission from the whole scheme. He talked to us at considerable length about new openness within the NHS—a willingness to listen and to learn from mistakes. However, the duty of candour has not been taken on—I noted what the Minister said. Not to include a simple duty to inform a patient that mistakes have been made seems to me a fundamental missing link in the proposals. I will take the matter away and consider it. I beg leave to withdraw the amendment.
My Lords, I shall speak also to the other amendments in this group. The aim of the Bill is to provide us with a model for a system that will enable aggrieved patients to seek redress—in all senses of that word—if they feel they have received negligent treatment in an NHS hospital. If there is one glaring fault in that model, to my mind, it is this. Let us imagine that a patient has been treated in hospital and something has gone wrong with the treatment. He makes an application under the scheme. The body tasked with investigating the facts of what went wrong is the hospital itself. The scheme authority, tasked with overseeing the process of investigation, assessing the degree of fault and setting the quantum of compensation, is the NHS Litigation Authority—a body very experienced in that area of work, but one which, when all is said and done, is part of the NHS.
The NHS is therefore being asked to act as judge, jury and assessor of compensation for its own misdeeds. Is that a system that is inherently fair to the patient? I do not think so. Is it a system in which patients are likely to have confidence? I suggest not. From the patient's point of view, the redress scheme may offer a cheap and speedy means of settlement, but it is hardly objective or independent. We must address that failing.
Putting myself into the shoes of an aggrieved patient, I would want one thing above all—some assurance that the initial process of fact-finding by the hospital was not a purely in-house exercise. There needs to be some independent oversight of the investigation by someone both sufficiently knowledgeable and with the necessary degree of standing in the eyes of the public.
In Grand Committee, it was suggested that the Healthcare Commission, not the NHSLA, should act as the scheme authority and, in so doing, provide the required element of independence. The Minister told us that there were two things wrong with that idea. One was that the Healthcare Commission has a conflict of interests, bearing in mind its current role as the point of reference for second-tier complaints in the NHS. The other was that it would damage local accountability. In his subsequent letter, for which I thank him, he added that it would also prove an inexpensive way forward. I am not sure that I fully accept the first two reasons but, in fairness to the Minister, it would be wrong not to take on board the third one.
Since Grand Committee, I have given this issue a lot of thought. It seems to me that there is a solution which would meet the requirements that I have set out without falling foul of the Minister's objections in relation to the Healthcare Commission—a panel of patient redress investigators approved, but not appointed, by the Healthcare Commission, whose job would be to oversee the fact-finding part of the redress process.
It is perfectly possible to imagine one individual serving several hospital trusts in this capacity. There would be no need for there to be one per trust. The trusts concerned would be responsible for investigating the facts of what went wrong, but the person actually signing off the report would be the redress investigator—a person who, albeit paid by the trust, would nevertheless not be seen as part of either the medical staff or the trust management. The Healthcare Commission's prior approval, or kite marking, of that person would confer a special independent status on him or her.
There is a model for what I propose, and it is a familiar one—that of the coroner. The coroner is a Crown servant whose job is to investigate the facts of a death whose circumstances are not straightforward. If the death takes place in a hospital, the hospital will collate the factual details of what went wrong, but it is up to the coroner to arrive at a verdict of how, when and where the deceased came by his death. He does not and must not pronounce on any issue relating to fault or legal liability. He cannot grant remedies or reward damages.
By means of a process that is inquisitorial, the coroner inquires into the facts of what happened, hears the evidence, summarises that evidence, and finally arrives at a verdict which comprises a finding of fact about the circumstances of the death. Where he believes that action should be taken to prevent the recurrence of similar fatalities, he may report accordingly.
There is a key feature of the coroner's inquest, which I have just emphasised—the separation of fact-finding from fault-finding. In Grand Committee, I proposed that the Bill omit any reference whatever to fault-finding and stick solely to the key process of fact-finding. I still believe that that would be the best model to follow. It is not necessary or appropriate for the Bill to do more. However, I am realistic enough to know that I am not going to achieve that outcome so, failing that, the key must be to ensure that the fact-finding part of the redress scheme is not muddied by the separate process of determining fault and assessing a quantum of compensation—the role that the Government want the NHSLA to undertake.
That is why I propose in the amendments that the NHSLA should have no jurisdiction over the fact-finding part of the redress scheme. It should stand back. The jurisdiction should instead lie with the patient redress investigator. At the end of the factual investigation, the patient would receive from the hospital and the investigator an explanation of what went wrong and, where appropriate, an apology. After that, so long as the patient wishes it, but not of course otherwise, the NHSLA would take over as the scheme authority. It would determine liability, if any, and make an offer of financial compensation to the patient. The patient could then take that offer or leave it as he chose.
I genuinely believe that this variant of the government scheme will give us a better result. The main thing it will achieve is the necessary element of independence and thus consumer confidence. But there are, I suggest, other benefits. It avoids what in Grand Committee I rather rudely called the functional incoherence of the Government scheme. The model provided by the coroner's court tells us that you need an impartial investigation of the facts before you even begin to decide whether there is a legal case to answer. Therefore, you should not have, overseeing a fact-finding investigation where full disclosure should apply, a body whose job is also to perform the in-house role of assessing fault and offering compensation under the rules of legal privilege. You should not have overseeing fact-finding a body that would suffer from the clearest possible conflict of interests as both a part of the internal machinery of the NHS and an authority supposedly tasked with being fair and impartial to patients.
One of the main aims of the NHSLA at present is to defend the NHS against unwarranted claims and to minimise costs that otherwise could be devoted to patient care. It does that with considerable success. It is, I am afraid, beyond me how we are supposed to believe that it can continue to perform that function in a manner that is at the same time independent. I believe that the alternative model that I have outlined overcomes all those difficulties. I beg to move.
My Lords, I shall speak principally to Amendment No. 42 in this group. As I said earlier, in the long period since Committee, the noble Earl, Lord Howe, the noble Baroness, Lady Neuberger, and I had the welcome opportunity to talk to a number of the organisations involved in such work and potentially involved in a new form of redress scheme. It is no secret that we met them; we had very useful meetings. Over that period, a number of different people, including the noble Earl, Lord Howe, and I, coming from the slightly different positions that we set out in Grand Committee, brought points of principle into our discussions with those responsible for making these and similar schemes work.
The proposal contains an admirable blend of principle and pragmatism. We have attempted, first, as the noble Earl, Lord Howe, said, to introduce independence to the fact-finding process, which is the first stage of the two-stage process that the noble Baroness, Lady Neuberger, talked about in Grand Committee. Secondly, we have taken into account the very strong case made by the Minister in Grand Committee that a new organisation should not be created to run the redress scheme. It would be expensive and would remove from scheme members their responsibility in part for the scheme and their responsibility to develop a learning culture. We are not talking about setting up a separate organisation.
We have also taken into account the pleas of my noble friend Lady Tonge, who, from her many years of sterling work in the NHS, was resolutely opposed to anything that could be seen as the basis for building an entire new NHS department—as is the NHS's wont. The noble Earl, Lord Howe, has set out the ways in which we see the people involved being approved by the Healthcare Commission. We see their work as being monitored to ensure that it meets certain standards. That falls clearly within the remit of the Healthcare Commission as it stands; it would not be sucked into individual cases at a local level. Our proposal is a way of guaranteeing—and constantly monitoring—a service of suitable quality and sufficient independence to guarantee the integrity of the process for the NHS and patients themselves.
Perhaps the most compelling part of the proposal is that findings of fact would have an integrity that is crucial to the secondary process, not of assessing liability, but of making clear the lessons that must be learnt, and by whom. It is therefore the most important aspect of what we are discussing.
My Lords, in this set of amendments we come to what is probably the major remaining area of contention between us in this Bill. I continue to have some sympathy, believe it or not, with some of the arguments put forward from the Benches opposite. I am particularly glad to learn of the Liberal Democrats' wish to join us in our conversion to avoiding unnecessary bureaucracy in the NHS; we are making progress. I would like to set out some of our objections to this particular set of amendments, although, if noble Lords will bear with me, I may have some comfort to offer towards the end of my remarks.
First, there is the question of whether the scheme should be limited, at the beginning, to a fact-finding investigation. The noble Earl, Lord Howe, has plugged away at this with great persistence from the beginning. We consider it an integral and important part of the scheme that the investigation of an incident is combined, where appropriate, with the resolution of the case through an offer of redress. We do not really accept the kind of division that the noble Earl has in mind. Under the Bill as it stands, the scheme presents an alternative to civil proceedings for those claims that fall within it. The NHS redress scheme is intended to provide a mechanism for swift resolution of low monetary value claims in tort, without the need to go to court.
Limiting the scheme, in the way proposed, to a fact-finding investigation at the outset, with some degree of separation from the rest of the scheme, would prevent the scheme from offering a real alternative to court action. It would create a partial scheme, rather than a complete scheme. This is not what patients want, as it would not allow for the provision of true redress in all cases. Of course redress involves investigation and explanation—we do not disagree with that—but in some cases it also necessarily involves financial compensation. As we have envisaged the scheme, it delivers clear benefits for patients, providing a real alternative to litigation in cases of low monetary value that fall within it. It addresses some of the problems of delay and risk around legal costs, which can arise in taking a case through the courts. That is where we start from—a different position from that of the noble Earl, Lord Howe, although I respect the arguments that he has put forward.
I turn now, more particularly, to Amendment No. 42. This appears to envisage the appointment of a single patient redress investigator to conduct an investigation in a case under the scheme. There are a number of reasons why this would not be appropriate. A single investigator for each case would have to perform multiple and, it could be said, conflicting roles. A person suitably skilled in investigation techniques does not necessarily possess the skills to determine how to prevent errors from occurring in the future. This approach could prevent the effective use of a mix of skills within a scheme member's organisation. It might, for example, be more appropriate for certain aspects of the investigation, such as determining the clinical facts, to be handled by clinicians, with some aspects, such as patient liaison, to be handled by PALS staff and other aspects to be determined by specialists, such as jointly instructed medical experts. I give those as examples of the kinds of skills that may be necessary to get to the bottom of a particular incident.
Scheme members, through a combination of staff working, for example, in the areas of complaints, PALS and risk management, may already possess a group of staff with combined experience in all those areas. Importantly, these staff are an integral part of the organisation and are therefore better able to link these processes together and to contribute to the learning process for that organisation, which we all agree, I think, is important for the benefit of the NHS.
To be cost-effective, it is important that the investigation of cases under the scheme makes full use of the skills and expertise already in place on the ground. Departmental economists have estimated that independent investigation of all cases may cost as much as an extra £41 million per year. I am very happy to supply noble Lords with the basis of that calculation, because I would expect a degree of scepticism about my producing that figure from the top of my head. It would be preferable, and more cost- effective, for an appointed person to take an overview of the investigation, utilising expertise and resources already available within the organisation. With this more flexible approach, the investigator could co-ordinate different elements of the investigation undertaken by a range of people, rather than the scheme member having to employ one person, and a separate person, with all the necessary skills.
We are also opposed to Amendment No. 42 because we do not believe that it would be appropriate for the Healthcare Commission to maintain and publish a list of approved investigators and to have responsibility for overseeing the carrying out of their functions. We have consulted the Healthcare Commission on this potential role. It does not believe that the validation and accreditation of NHS investigators falls within its remit. It is already proposed that consideration of the effectiveness of the operation of the NHS redress scheme, including investigations carried out under the scheme, will be included as part of the Healthcare Commission's annual review of the provision of healthcare by and for NHS bodies. I do not believe that a separate review of the carrying out of the functions of a redress scheme investigator would be appropriate, as it would lead to duplication of effort by a body which already has a wide range of functions and a heavy workload.
Crucially, Amendment No. 42 raises significant unanswered questions about how the proposal would work in practice. It is not clear from the amendment by whom the patient redress investigator would be appointed, by whom he would be employed, or to whom he would be accountable. Is it envisaged, for example, that the scheme member will employ the investigator and pay his salary, but that the employee will be answerable to the Healthcare Commission? The wording could be interpreted in that way. Usual employment practice is for an employee to be accountable to his employer. Or is the intention that the investigators are independent of the scheme member? Are the investigators to be appointed by the Secretary of State? I suspect that that is not in the noble Earl's mind. As I have said, if the investigators are intended to be independent of the scheme member, there are clear cost implications. I repeat: the cost of independent investigation of all cases under the scheme has been modelled by Department of Health economists, who estimate it to be up to an extra £41 million per year.
We further believe that Amendment No. 42 is inappropriate because it duplicates powers already established in the Bill. The amendment sets out that secondary legislation may make provision with regard to how the investigation should be carried out. But we already have the power in Clause 6(2)(a) to enable the scheme to make provision about the investigation of cases under the scheme. It is intended that the scheme will provide as to how investigations are to be carried out in secondary legislation, following consultation with stakeholders.
That is the bad news. I shall now turn to more positive responses to what I think is the underlying thinking behind this group of amendments. We sympathise with the idea that there should be a specified person overseeing—I use the word "overseeing" deliberately—the investigation of each case under the scheme. That person should have responsibility for co-ordinating an investigation report to be submitted to the scheme authority, which may inform the decision on eligibility for the scheme. I am therefore willing to take this away and table an amendment at Third Reading to enable the Secretary of State to require scheme members to charge a specified person with responsibility for overseeing the investigation of cases under the scheme. The amendment would provide that secondary legislation may set out the prescribed qualifications and/or experience that this specified person would need.
This person would be given the task of overseeing the carrying out of investigations under the scheme, ensuring that appropriate information is collected and provided to the scheme authority, in order to inform the decision on both liability and quantum. The person would be employed by the scheme member and the responsibilities might be conferred on an already existing member of staff. The person would have to act reasonably when carrying out their responsibilities, or a complaint of maladministration could be made under the redress scheme complaints procedure. Should complaints of maladministration be referred to the Health Service Commissioner, there would be an independent overview by the commissioner. The Health Service Commissioner could investigate complaints about maladministration in connection with the investigation of cases under the scheme, and report on her findings.
To promote learning from mistakes and to ensure that effective links between cases under the scheme and improvements to clinical governance procedures are made, I believe that it would be preferable to take this amendment forward, building on the requirements set out in clause 10(2)(h). Clause 10(2)(h) already allows the scheme to impose a duty on scheme members, requiring them to charge a specified person with responsibility for overseeing the carrying out of specified functions under the Act and advising the member about lessons to be learnt from cases that are dealt with under the scheme. I suggest that this person will be better placed to undertake the function of overseeing investigations under the scheme, as it is envisaged that the person will be part of the management team of the scheme member.
By combining the functions, this person will be better able to make links between cases under the scheme, learning from mistakes and ensuring that action is taken to prevent recurrence. They will understand the scheme member's procedures and be better placed to determine the appropriate action to be taken and how to monitor it. It is important that they should have the status and influence to ensure that action is taken in the future, which is one of the key aspects of the scheme and of what patients who have suffered adverse incidents want for the future.
Furthermore, if scheme members are required to charge a specified person with responsibility for overseeing the carrying out of investigations, the role of that person will be subject to an independent overview by the Health Service Commissioner should a complaint of maladministration be referred to her. I believe that this will provide a sufficient check on the performance of the role and provide a good deal of reassurance to noble Lords, given the concerns that they have expressed. I hope that willingness to take forward an amendment on those lines will be convincing to the Benches opposite.
My Lords, I have listened with great care to the Minister but, as he may have anticipated, he has not managed to convince me. The amendment is in the name of the noble Earl, Lord Howe, and he will decide what to do. I have to say that, from these Benches, what he outlined seems insufficiently independent of the organisations under investigation and would not, in the way that he described it, be subject to sufficient scrutiny by the Healthcare Commission. I believe that the proposal put forward by these Benches is much more appropriate. The noble Lord has outlined a souped-up complaints officer, but in my view that is insufficient for the purposes of the scheme.
My Lords, I am grateful to the Minister for his reply. Perhaps I may preface my remarks by saying that there is an error in Amendment No. 42. It should refer to the Commission for Healthcare Audit and Inspection; the name has not been printed correctly.
I recognise that the Minister has made a good deal of effort to move at least in part in my direction and I thank him for the obvious thought that he has devoted to these issues. However, he is right to say that we start from different positions. His scepticism about the role of patient redress investigators was overdone. He expressed the view that the investigators would not have the necessary skill mix to do their job properly. All I can say is that—to take the well tried model of the coroner—no one would argue that coroners do not have the necessary skill mix to do their job, and very much the same kind of skills are required for patient redress investigators.
The Minister's proposed solution, which I have listened to very carefully, suffers from one principal shortcoming. The question I ask myself is this: how could a member of staff from within the trust command the necessary degree of confidence with the public? He simply will not have the element of independence I referred to earlier. The Minister's offer builds upon the provisions of Clause 10(2)(h), as he said, but because it does so and because the individual concerned would be part of the management team, we are not looking at a sufficiently radical solution to the difficulty here.
There is a major matter of principle. It is that there should be independence in the process and a separation of functions. There is very considerable judicial authority for the need to separate fact-finding from fault-finding. During the Recess, I had the pleasure of reading a number of transcripts of recent judgments in the Court of Appeal which underline this principle time and again. It is a key principle of international jurisprudence.
My Lords, I hesitate to do this, but I think that I know where this is going. I would like to be sure that the Benches opposite accept that, if they press the amendment, they will add costs of £41 million to this Bill.
My Lords, I had hoped the Minister would not say that, because I do not accept it. For the life of me I cannot imagine how the appointment of a number of patient redress investigators could conceivably cost £41 million a year. In my view, a sum of a very much lower order would be involved. I suspect that the modelling carried out by the department related to the original proposal put forward by a number of noble Lords, which suggested that, over and above the investigative process undertaken by the hospital trust, there should be another layer of investigators. That, the Minister was right to say, would have created considerable bureaucratic cost. But I do not envisage that this fairly small band of investigators will be expensive to the health service, certainly not to that order of money.
As I have said, we are looking at a major matter of principle here. I take my steer from the Liberal Democrat Benches as well in proposing that we test the opinion of the House on this.
In Grand Committee we discussed at considerable length what was meant by the scheme being a speedy and efficient means of enabling somebody who has had an adverse incident with the NHS to achieve redress. The Minister has set out in his full and helpful letters more of the Government's thinking on the matter. However, the amendment has been tabled because one matter is still outstanding. Unless there are specified time limits under the scheme there could be a tendency for matters to drift. From our discussions in Grand Committee it is clear that none of us wishes that to happen. We wish this to be a speedy and yet satisfactory process for patients and for the trusts themselves. In Grand Committee the Minister commented that that could be achieved by acknowledging the importance of each stage of the process under the scheme being governed by time limits. He explained that provision was made for that in Clause 4(2)(c). He added that, should it become apparent after consultation with stakeholders that an overall time limit for the conclusion of proceedings under the scheme would be appropriate, the general power set out in Clause 6(1) would be sufficient to allow the Government to introduce such a time limit.
However, Clause 4(2)(c) as drafted does not provide for time limits for proceedings to be concluded although it specifies that the scheme may make provision for time limits to be commenced. That implies that a specific period of time may be stipulated for people who wish to avail themselves of the scheme to start proceedings, and that failure to do so within that time may mean that they lose the right to do so. However, the Bill does not make clear that there should be a requirement for proceedings under the scheme to be not only commenced within a given time but also concluded within a time limit. If the scheme is to operate in such a way, there is a good case for making that clear in the Bill. I beg to move.
My Lords, Amendment No. 24 provides that the scheme may make provision to require proceedings,
"to be conducted within a fixed period of time".
We have made clear that the redress scheme is intended to help to resolve cases swiftly and to ensure that redress is provided to the patient as quickly as possible. We agree on that.
Experience from the NHS complaints procedure tells us that setting a rigid time limit for responding to complainants may have perverse incentives. In some cases, a case that might be more quickly resolved is not resolved until the time limit, while other cases are poorly dealt with within the time limit when a little more time may have provided a more satisfactory outcome. There may be cases that, for good reason, take longer to deal with; and it is more important to get the decision right than to meet a target. In many of those cases, the patient will understand if he is involved in the discussions and kept apprised of the situation.
The major problem with introducing an overall time limit for a procedure that may, in some cases, be quite complex is that it is in danger of becoming meaningless. For simple cases, it will be unchallenging; while for complex cases it runs the risk that cases will not be properly dealt with simply to meet an overall time limit. To be effective, any time limit should have regard to the time taken by the scheme member and scheme authority to resolve the case. This amendment will not measure that effectively. Under our proposals, it is intended that patients will be given a reasonable amount of time in which to consider an offer of financial compensation. That will enable them to obtain legal advice on the offer and settlement. But an overall time limit will not take into account the time taken by the scheme member and the scheme authority as against the time taken by the patient. In other words, a case that, overall, appears to have been dealt with more quickly than a similar case may, in practice, have taken longer when one considers only the involvement of the scheme member and/or the scheme authority. We would certainly not want patients to be put under any undue pressure simply to enable proceedings to be completed within a fixed period of time.
However, I accept that an important aim of the scheme is to facilitate the resolution of cases in a swift manner, ensuring that redress is provided to the patient as quickly as possible. Therefore, it is more appropriate for there to be time limits for some of the stages within the overall process. Those limits should be set only after full consultation with stakeholders, to ensure that practical, appropriate and effective limits are set throughout. There may even be a case for providing an exemption for cases meeting certain criteria relating, for example, to complexity. Those will be set out in the scheme. I appreciate that the amendment seeks to ensure that cases under the scheme are dealt with quickly. However, a single, overall time limit for proceedings under the scheme may unnecessarily constrain the system in a manner that is not to the advantage of the patient.
My Lords, I thank the Minister for that reply. The amendment does not bear on one party rather than the other. Having a time limit would be a good stimulus for both sides to resolve the matter quickly and not to indulge in game playing and delaying. The Healthcare Commission will evaluate that when it reviews the operation of individual NHS organisations. If that is found to be the case, there is a case for making it open from the start. However, I have listened to what the Minister said. I hope that when the guidance on good practice on the scheme comes out the Government will, for example, look at the average length of time taken by the NHS Litigation Authority to resolve cases at present and come up with some guidelines both for individuals and for trusts—that would be advantageous. For the moment, I beg leave to withdraw the amendment.
moved Amendment No. 25:
Page 3, line 40, at end insert "; and
( ) the disclosure of all information and evidence, including all medical evidence, obtained during the investigation into any incident or relied upon in making a decision as to whether or not an offer of settlement is to be made (or both),"
My Lords, we return again to the issue of candour, which remains a matter of concern. This proposal comes from the Law Society and is an attempt to ensure that all information and evidence obtained during an investigation should be forthcoming to all the parties. That is key to the scheme working effectively. It is also important, given the decision that your Lordships' House has just taken, for impartiality of investigation that there is a requirement for openness in the disclosure of evidence and information, which will enable redress to be forthcoming quickly. I beg to move.
My Lords, a serious anomaly thrown up by the Government's redress scheme is the confusion that it causes on disclosure and privileged legal information. The NHSLA will be tasked not only with the gathering of factual case evidence about what was done, by whom and why—under the Government's proposals, at any rate—but also with the logically quite distinct exercise of considering whether the facts of the case give rise to a legal liability in tort and, if so, whether an offer of financial compensation is appropriate. It would be wrong to call the second half of the process judicial or even quasi-judicial. It is an in-house consideration of the NHS's liability resulting, sometimes, in an offer. As such it is barely susceptible to judicial review. Ordinarily, the substance of in-house deliberations of this kind would be treated as privileged information, as would the legal advice underpinning it. Normally any offer of settlement under the redress scheme would be without prejudice.
When an offer of redress is accepted, clearly the matter is dealt with and the file is closed. However, when it is rejected, what will be the position of the NHSLA? Will it try to claim privilege under the redress procedures in respect of any subsequent litigation? If offers under the scheme are to be made without prejudice, that suggests that the NHSLA would want to preserve its position on liability. Indeed, there is little point in the offer being without prejudice if the proceedings leading up to it are not privileged.
Yet, at the same time, we are told by the Government that they wish the redress process to be as open as possible. In his letter of
The Government have got themselves into this confusion by conflating, unnecessarily in my view, the two logically distinct halves of the redress process: fact finding, where open disclosure should operate under the rules of natural justice, and fault finding, where the rules of legal professional privilege set in. Earlier I referred to the functional incoherence of the Government's scheme and this is one rather obvious aspect of it. It leads to irrational results. If you separate functions in a logical way, that removes conflicts of interest.
I support this amendment, not least because it forces the Government's hand. If they want the redress process to be open and to mean what they say about freedom of information, this amendment is the way to achieve it.
My Lords, I do not for one moment believe that the Government's position is incoherent. It is a fact of life which people have to face that in legal and other processes there is already a lot of legislation, custom and practice about disclosure. One cannot simply overturn that position in relation to particular issues in this Bill. We have tried to have regard to the practicalities and realities of that alternative legislation and practice in framing this legislation.
The noble Earl, Lord Howe, referred to my letter of
It is intended that the scheme may provide for the investigation of cases under the scheme to produce an investigation report, and we intend to consider further, in consultation with stakeholders, whether the investigation report should be made available to the patient or individual eligible for redress, subject to any restrictions surrounding data protection. We cannot wish away the existence of other legislation on the statute book.
However, this amendment is drafted very widely indeed, referring to,
"all information . . . obtained during the investigation . . . or relied upon".
It is, however, appropriate that there may be an element of non-disclosure, as documents which are covered by legal professional privilege—for example, confidential communications for the purpose of obtaining legal advice and assistance—will be privileged, in accordance with the general rules of legal professional privilege; again, this is a practical state of existing practice and law. These general rules should apply.
There may be situations where it is not appropriate for personal information to be disclosed. For example, where an application has been made to the scheme by a dependant following the death of a relative, it may not be appropriate for the medical records of the patient to be disclosed to the surviving relative where the deceased patient wished for their medical records to remain private and confidential. These are reasonable expectations, which have to be respected. However, these issues are best dealt with by applying the existing law on disclosure. We therefore oppose the amendment.
My Lords, I thank the Minister for his reply. If the existing law on disclosure worked, then both the NHS complaints procedure and those cases which go through the NHSLA would certainly not take as long as they currently do. There is clearly a deficit of information. I should like to believe that in due course, when this scheme has been in operation for some time and trusts have got into that famous "learning culture" that the Minister spoke of, such measures would be unnecessary. As things stand, however, I am not hopeful that that will the case for quite some time.
However, I have listened to what the Minister has said and I therefore beg leave to withdraw the amendment.
moved Amendment No. 26A:
Page 3, line 40, at end insert—
"(2A) A scheme may make provision for access to an independent medico-legal expert agreeable both to the scheme authority and the person involved in the case which has been the subject of a report by the Patient Redress Investigator.
(2B) Both the scheme authority and the person involved in the case shall agree to be bound by the findings of the independent medico-legal expert."
My Lords, we return to another key area of discussion on the Bill. During Grand Committee my noble friend Lady Neuberger in particular talked about the importance of the Resolve-type schemes that had been piloted and the ways in which those pilot schemes had demonstrated the value of having easy and swift access to medical and legal advice at an early stage, to ensure that people who had an adverse incident within the NHS could obtain redress swiftly and—crucially—without recourse to the courts. I said earlier that we would be discussing an important matter on which the House has made its views known—having an independent first stage during which facts could be established. I also talked about the need to ensure that, once such a report had been made, there be means by which an individual can be given advice in order to know whether it is appropriate for them either to be part of the redress scheme or to take their case to court. It is important that it is medico-legal advice; that is, given by someone who has not just an understanding of the law but sufficient understanding of medical and clinical issues, a matter to which the Minister referred earlier.
Throughout the debates it has concerned me that it has been unclear exactly how people would obtain such specialist advice. On these matters, the Minister again spoke at length in the letters that he sent to me and the noble Earl, Lord Howe. He talked about the role of ICAS. What he had to say was not sufficient for the type of work about which we are talking. Let us be clear about ICAS; ICAS officers are employed by trusts. They are engaged in a process termed advocacy, which is specifically not the giving of advice. Advocacy is enabling an individual to make their thoughts known. It is different from an individual having recourse to independent medico-legal advice.
It is therefore important that we make the provision, so that we can ensure that people are not left adrift. That addresses one of the points of criticism that the Minister made of Amendment No. 42, in that it was incomplete. This measure should be seen clearly in conjunction with the work of the patient redress investigators. It is short of what the noble Earl, Lord Howe, spoke of on previous occasions as a McKenzie friend—having someone throughout to give advice—but it is the necessary service that an individual would need to be able to determine where their case should go next. Having such a provision in the Bill is important. I therefore beg to move.
My Lords, I am in tune with the spirit of Amendments Nos. 26A and 33. The former raises the prospect of the reintroduction of the Resolve dispute resolution scheme which, to all who had anything to do with it, was a successful experiment in mediating claims for redress, and greatly improved access to justice by common consent. I agreed with a great deal of what the noble Baroness had to say.
However, it is important to stress one point. What the amendment refers to as the findings of the medico-legal expert should not be taken as implying that the expert would be tasked with determining liability. That is a judicial function. What experts do in essence is advise in a non-partial way on the facts and arguments at issue. That may sound like a pedantic point, but in the context of the debate it is important.
To my mind Amendment No. 33 is also important, because anyone who wishes to have properly informed advice about an offer made under the scheme will want to know that the person giving the advice is appropriately qualified in both a legal and a medical sense. However, perhaps I could anticipate the Minister's remarks in support of his own amendments by asking him a question. Solicitors will be asked to give advice to clients about the adequacy or otherwise of financial offers they may have received from the NHSLA. Is he absolutely satisfied that that activity would accord with the solicitor's professional code of practice? Is it something that solicitors feel able to do freely? To advise on the quantum of an offer requires them at the least to be in possession of sufficient information, but they will not have that information because, as we have heard, the internal deliberations in the NHSLA will be subject to legal professional privilege. Will solicitors therefore be placed in a difficult if not invidious position?
My Lords, I must first apologise for any confusion that has been caused by a minor drafting error in the list of government amendments that was sent out to your Lordships with my noble friend's letter of
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. In Committee, noble Lords expressed concern that Clause 8(1) gives the Secretary of State discretion over the circumstances in which legal advice is to be provided without charge under the redress scheme. I gave an undertaking to noble Lords to reconsider the drafting.
If the redress scheme is to offer patients a credible alternative to litigation, it has to have the full trust of patients going through the scheme. Amendments Nos. 29, 32 and 34 strengthen the Bill by including a new subsection (1A) in Clause 8 which provides that the scheme must—not may—make such provision as the Secretary of State considers will ensure that all persons making a claim under the scheme will have access to free legal advice in relation to offers and settlement agreements.
The Secretary of State will be under an obligation to provide for free legal advice in respect of offers and settlement agreements in all cases. I hope that this will provide reassurance that the scheme will not require the waiver of rights by those harmed during NHS care, unless those people are fully aware of the consequences and consent to that waiver. In Committee, concerns were also raised over when a jointly instructed independent medical expert may be involved in the process.
When considering Clause 8(1), I also took the opportunity to review the drafting of Clause 8(1)(b), which enables the provision of services,
"designed to help in reaching an agreement to settle".
We would not wish there to be any restriction on the stage at which such services may be provided, and hence this restriction has been removed by Amendment No 31. Amendment No. 30, by inserting the words,
"in connection with proceedings under the scheme", enables the scheme to provide for appropriate services at any stage of the scheme. This will enable the scheme to provide for services which are intended to help determine questions of liability, such as, where appropriate, the services of a jointly instructed medical expert to assist with questions about whether a case falls within the scope of the scheme. It will also enable the scheme to provide for services intended to help determine the appropriate level of compensation to be offered, such as, where appropriate, the services of a jointly instructed medical expert to assist with questions about the extent of an injury, and future consequences to the patient as a result of that injury.
Amendment No. 31 makes clear that the Secretary of State may make provision for a range of services in connection with proceedings under the scheme, including in particular the commissioning of services from medical experts. We intend to work closely with stakeholders when drafting the secondary legislation to determine the circumstances in which it may be appropriate to commission an independent medical expert.
Amendment No. 26 would insert into Clause 6 a power for the scheme to make provision for access to an agreed independent "medico-legal expert". I consider this to be inappropriate. First, it is not clear what exactly is meant by the term, although the explanation given by the noble Baroness, Lady Barker, has thrown some light on that. If it is envisaged that patients will have access to a medical expert with legal qualifications, there are clear cost and resource implications. Such expertise may not be appropriate for the type of more straightforward, lower-value cases that will be dealt with under the scheme.
Secondly, we have existing powers to provide both expert medical and legal advice. Clause 8 specifically provides for both legal advice and access to other services, including the services of medical experts. It is envisaged that the services of jointly instructed independent medical experts may be engaged to assist in determining questions of eligibility for the scheme and the appropriate level of compensation to be offered.
As regards legal advice, it is intended that the achievement of quality mark status will be used as the standard for the legal advice given at the point at which an offer is made under the scheme, and that the system of giving advice would be similar to current practice for litigated cases—that is, the work may be undertaken by or will be supervised by the panel solicitor. It is intended that these measures will ensure that patients have access to an appropriate level of specialised advice.
The government amendments to Clause 8(1)(b) provide a broad power to allow for the provision of services throughout the process. That is a satisfactory solution that will allow appropriate services to be used in appropriate cases. In many cases, settlement will be reached without the need for other services. We would expect the patient to be consulted throughout.
Importantly, Amendment No. 26 would also require the scheme authority and the patient to be bound by the findings of the independent medico-legal expert. It seems that the amendment seeks to enable this expert to determine liability. This confuses the investigation process and the decision-making process. There will be cases where an independent expert medical opinion is necessary. The scheme makes provision for that. The opinion of the expert will, of course, be highly persuasive. However, he or she is not there to pre-empt the decision of the scheme authority, but to add to the knowledge of how the incident arose. The amendment would take the assessment of eligibility under the scheme out of the hands of the scheme authority, so I think that this amendment raises many questions about who these medico-legal experts—who it is actually envisaged will be determining eligibility—would be.
The amendment would seek to incorporate into the redress scheme a form of independent dispute resolution, which would be inappropriate and have huge cost implications. I firmly believe the scheme authority has to be responsible for making decisions about eligibility under the scheme. The scheme authority will make decisions according to the law of tort and after considering appropriate expert evidence, if necessary. The NHSLA, as the proposed scheme authority, is best placed to make these decisions. That is its area of expertise. The redress scheme is intended to be an out-of-court settlement scheme. If an offer is not made under the scheme or is rejected, the patient retains his right to seek redress though the courts. The scheme is not intended to determine rights and bind patients.
There is a further safeguard. Clause 14 introduces a complaints mechanism for cases of alleged maladministration. Ultimately, these cases may go to the Health Service Commissioner. Any decision made by the scheme authority on eligibility or quantum which does not take into account the facts, or unreasonably overrides an expert medical opinion, may be expected to fall within the scope of this power. This safeguard is sufficient to ensure that the evidence provided by independent medical experts is appropriately taken into account when decisions are made under the scheme.
Amendment No. 33 would provide that legal advice on the offer and settlement under the redress scheme would specifically be specialist medico-legal advice. This amendment provides no flexibility. It suggests that specialist medico-legal advice will be necessary in all cases falling under the redress scheme. I am opposed to this, as I do not believe that it would be cost-effective for independent medico-legal advice, or indeed independent medical expert advice, to be obtained with regard to every case under the scheme—for example, in some cases it will be clear that there is liability without the need for an independent medical expert opinion. This scheme is for cases of lower monetary value. In some cases the patient will simply require legal advice on the offer and settlement agreement. The amendment restricts flexibility and has the potential to lead to additional unnecessary costs. I therefore oppose both Amendments Nos. 26 and 33.
My Lords, I thank the Minister for her very full and considered answer. I listened to what she said very closely. The issue we still have between us is on the importance of ensuring that people have quick and easy access, not to legal advice but to specialist legal advice. She will know, because she took part in our debates in Committee, that the success of the Resolve pilot and the speedy resolution scheme—and one of the key things that made them attractive to people as an alternative to going down the route of litigation, which remains open to most people—was that they would have easy access to people with that particular background.
The comments made in Committee by the noble Lord, Lord Warner, about the Community Legal Service quality mark have been, to some extent, reiterated by the noble Baroness. He pointed out that the CLS quality mark applies to organisations such as legal practices and not to individuals. Therefore I am not convinced that what the noble Baroness has said makes the scheme as it stands sufficiently attractive to persuade people that it is a more beneficial route for them because it will not just be quick but will also have within it that specialist knowledge.
The noble Baroness questioned who these people would be. We have left that matter open, not least because this is a specialist field, but because it is possible that practitioners or people who currently work in it could come within the overall ambit of the scheme. I do not accept many of her arguments. If we do not in some way get the Resolve-type pilots back into this scheme, then the crucial thing that was good about them—the learning that came from having all that legal advice and people there working together—will be lost, and not just to patients. It will also be lost to trusts. It is important to test the opinion of the House on this matter.
moved Amendment No. 27:
Page 3, line 43, at end insert—
"( ) A scheme must provide that where a settlement agreement relates to a child or an incapacitated adult (as defined by Part 21.1(2) of the Civil Procedure Rules 1998 (S.I. 1998/3132)) and includes the payment of financial compensation, the agreement is subject to the approval of the court."
My Lords, we return to an amendment that I tabled in Grand Committee which, in common with a similar amendment tabled by the Liberal Democrats, covered the issue of children and incapacitated adults who are offered a settlement of the claim under the redress scheme. My contention was and is that there should be a specific requirement in the Bill that any such settlement agreement offered to a child or incapacitated adult should be approved by the court before it is concluded. Indeed, where appropriate, it should be for the court to invest and manage any funds on behalf of that person.
In Grand Committee, the Minister said that he had no quarrel with the intention behind the amendment and that it was the Government's intention to incorporate the substance of the amendment into the scheme. I welcome that assurance. However, we are dealing here with a fundamental legal principle. Any child or adult who is unable to deal with his or her own legal affairs and has assets of value is protected from unscrupulous adults who may use those assets for their own benefit. The amendment is designed to ensure that such people have exactly the same protection under the redress scheme. That is not an onerous obligation. The procedures employed by the courts for dealing with such applications are designed to operate with the minimum of formal requirements.
I believe that no issue of principle divides us on this, but the noble Baroness may like to note that when I met the Law Society, it was adamant that, in its view, this was an issue of such importance as to warrant being written into the Bill, not simply regulations. From a body of the standing of the Law Society, I take that message to heart and I therefore beg to move.
My Lords, as I understand Amendment No. 27, it would place explicitly in the Bill the need for settlement agreements in respect of a child or incapacitated adult to be subject to the approval of a court of law. We believe that the amendments are unnecessary. Clause 6(2)(e) enables the scheme to make provision for settlement agreements under the scheme to be subject in cases of a specified description to approval by record. I reiterate what I said in Committee: it is our firm, stated intention that the scheme will specify that awards made to children and incapacitated adults will require approval by record to ensure that accepting the offer is in the patient's best interests.
We agree on that point with the noble Earl, but the amendment would remove the flexibility for the scheme to adapt to ensure that settlement agreements made in other circumstances could be made subject to court approval, should that be necessary in future, following further consultation with stakeholders. We do not object to the principle of cases relating to children and mentally incapacitated adults being subject to the approval of the court. We believe that the amendment would restrict the ability to send other types of cases to the courts, where that was deemed appropriate.
moved Amendment No. 28:
Page 4, line 5, leave out subsection (1) and insert—
"(1) A scheme must make provision for the period during which a liability is the subject of proceedings under the scheme to be disregarded for the purposes of calculating whether any relevant limitation period has expired.
(1A) In subsection (1), the reference to any relevant limitation period is to any period of time for the bringing of civil proceedings in respect of the liability which is prescribed by or under the Limitation Act 1980 (c. 58) or any other enactment."
My Lords, in Committee, it was suggested that the drafting of Clause 7 was difficult to understand. Parliamentary counsel was invited to reconsider the drafting and a revised wording has been provided in the amendment. There is no policy change behind the amendment. It is simply intended to clarify the policy in the Bill. I hope that new subsection (1) now makes it clear that the clause requires the scheme to provide for the period of time during which a case is being dealt with under the scheme to be disregarded for the purposes of calculating whether any time limit for bringing court proceedings has expired. For limitation purposes, time ceases to run while a case is being considered under the redress scheme.
We accept that, when the redress scheme has been triggered, the processes will take time to complete. It is right, therefore, that patients' rights to pursue court proceedings are maintained while their case is being considered under the scheme. There should be no reduction in the time left available to them to bring court proceedings just because their case has been considered under the NHS redress scheme. Patients must not be put under pressure to complete proceedings under the scheme because of the existing time limits for bringing court proceedings.
Noble Lords may recall that Section 11 of the Limitation Act 1980 provides that court proceedings founded in tort for damages in respect of personal injury cannot generally be brought more than three years from the date on which the cause of action accrued—or, if later, the date on which the person became aware of the cause of action.
That provision will ensure that a patient is not prejudiced by or prevented from litigating as a result of waiting for the result of an investigation under the redress scheme—for example, where he or she is dissatisfied with an offer made under the scheme and therefore subsequently wants to bring court proceedings. It effectively stops the clock regarding any time limit for bringing court proceedings in respect of the same incident for as long as the case is being considered under the redress scheme.
It was also suggested that a specific amendment to the Limitation Act 1980 is required to ensure that the limitation period does not run while there are proceedings under the scheme. That has been considered, but we are satisfied that no such amendment is required. It is not necessary for the modification of the relevant time limits in the Limitation Act to appear in the Limitation Act itself. Although Part II of that Act contains a number of provisions extending or excluding the ordinary time limits, it is unnecessary for all such extensions and exclusions to appear there.
Clause 7 now clearly enables the scheme to affect the operation of the Limitation Act, enabling it to modify the limitation period in relation to liabilities that are the subject of proceedings under the redress scheme. New subsection (1A) makes explicit that the scheme can amend the Limitation Act, as there is now express reference to the Act. Under existing subsection (2), which remains unaltered by the amendment, the scheme may define when a case is considered to be the subject of proceedings under the scheme, so that it is absolutely clear when the clock stops running for the purposes of calculating the period of time to be disregarded. I beg to move.
My Lords, I believe that it was Members on these Benches who made the point about lack of clarity in the original wording of Clause 7. The government amendment makes the matter somewhat clearer, and I am grateful for the Minister's explanation of the Limitation Act 1980. It may not be quite as clear as one would have liked, but I imagine from what he has said that it will be made clearer in plain user language when the guidance is published. So I thank him for his clarification.
moved Amendments Nos. 29 to 31:
Page 4, line 11, at beginning insert "Subject to subsection (1A),"
Page 4, line 14, leave out "of" and insert "in connection with proceedings under the scheme of other"
Page 4, line 14, leave out "designed to help in reaching an agreement to settle" and insert ", including the services of medical experts"
On Question, amendments agreed to.
moved Amendment No. 32:
Page 4, line 15, at end insert—
"(1A) A scheme must make such provision as the Secretary of State considers appropriate in order to secure that individuals to whom an offer under the scheme is made have access to legal advice without charge in relation to—
(a) the offer, and
(b) any settlement agreement."
On Question, amendment agreed to.
[Amendment No. 33, as an amendment to Amendment No. 32, not moved.]
My Lords, my purpose in tabling this amendment is not to baffle the Minister but to flag up a matter which we debated briefly in Grand Committee; namely, who, or which body, will hold the list of solicitors authorised under the redress scheme to provide legal advice? In Grand Committee, the Minister indicated the Government's intention to entrust this role to the Legal Services Commission because this was the best way, in his view, of guaranteeing to patients that they would receive advice and services of an appropriate standard.
I feel that I must challenge that rationale. The LSC is, of course, a highly respectable non-departmental public body. However, its role is not to accredit solicitors who have experience in the clinical negligence field. In fact, it can hardly be said to accredit solicitors in any sense at all other than by reference to their employment and management procedures and to their experience in legal aid. The list held by the Legal Services Commission is in fact a list of practitioners who hold a legal aid franchise. That list is rather different from the list that I think most of us want, which is a list of clinical negligence specialists. Not all clinical negligence specialists have a franchise with the Legal Services Commission. If the Government follow through their intention to give the LSC this responsibility, they will be doing one thing—restricting unnecessarily the pool of available solicitors qualified in the field. That, I suggest, would be a retrograde step.
I mentioned in Grand Committee that currently there are two recognised lists of clinical negligence lawyers: one is held by the Law Society; the other by AvMA—Action against Medical Accidents. What is wrong with the idea of entrusting these two bodies with the joint responsibility of holding the list? I beg to move.
My Lords, Amendment No. 35 is intended to enable a list of approved providers of legal advice to be held by more than one person specified in secondary legislation, as the noble Earl has explained. In fact, we believe that the amendment is not necessary to achieve this effect because, as a result of the Interpretation Act, references such as "a specified person" in Clause 8(2) are also taken to include a reference to more than one specified person. It would therefore be open to the Secretary of State under the Bill as currently drafted to specify more than one person to prepare the list of those who could provide legal advice in relation to the scheme, if that was what was required.
My Lords, I accept that the amendment is, strictly speaking, unnecessary. It was designed as a device by which I could present an argument to the Minister about the Legal Services Commission and perhaps the alternative model that I had in mind. However, I see that my remarks fell on stony ground. I would just like to seed the thought in the Minister's mind that when the Government consult on this issue, they take into account the points that I have made. I have nothing against the Legal Services Commission; I simply do not think that its role lends itself to the kind of outcome that we all want. I understand that the Government may need a little persuading. I hope, however, that they will reflect on the matter. In the mean time, I beg leave to withdraw the amendment.
moved Amendment No. 36:
Page 5, line 21, at end insert—
"( ) require a member of the scheme to prepare and publish an annual report about such cases and the lessons to be learnt from them."
On Question, amendment agreed to.
[Amendments Nos. 37 and 38, as amendments to Amendment No. 36, not moved.]
Clause 11 [Scheme authority]:
My Lords, I return briefly to the subject of how the lessons which have to be learnt and the redress scheme which will be operated by individual NHS bodies will be reviewed. The purpose of the amendments is to ensure that the Healthcare Commission has the power to monitor the scheme and to produce an annual review, and that the commission's work will reflect on the independence and the dissemination of training, performance and best practice in individual trusts.
This is yet another way of trying to get to the heart of all this, in that lessons will not be learnt and good practice in developing the culture of learning in the NHS will not happen unless there is a reason for individual trusts to do so. We believe that incorporating that into a review will set up the learning culture which the Minister has referred to before. I beg to move.
My Lords, Amendment No. 40 seeks to extend the functions of the scheme authority, enabling the scheme to provide that the scheme authority shall not only monitor the carrying out of functions under the scheme by scheme members but provide an annual review of those members.
As noble Lords will be aware, I have taken on board concerns expressed in Committee about the need for an independent check on performance in the operation of the redress scheme. I have proposed that consideration of the effectiveness of the operation of the NHS redress scheme, including investigations carried out under it, be included as part of the Healthcare Commission's annual review of the provision of healthcare by and for NHS bodies. The Healthcare Commission currently carries out an annual review of the provision of healthcare, under powers contained in Section 50 of the Health and Social Care (Community Health and Standards) Act 2003. It takes into account the statement of standards set by the Secretary of State; those core standards are set out in Standards for Better Health. The intention is that when Standards for Better Health is reviewed, the Secretary of State will include a new standard relating to redress.
Similarly, the Healthcare Commission devises and publishes criteria against which annual reviews are carried out. It is intended that the Healthcare Commission would also include new criteria against which the operation of the scheme would be reviewed. Following each annual review, the Healthcare Commission awards a performance rating. The intention is that that will provide an independent overview of the redress scheme process. One element of the annual review would be the provision of the redress scheme.
Amendment No. 40 is therefore unnecessary on two counts. First, the Bill contains powers to provide for the scheme authority to monitor the carrying out of functions by scheme members under the scheme. Secondly, if there is to be an annual overview of performance in the operation of the redress scheme, for reasons of consistency and coherence it would be most appropriate for the Healthcare Commission, rather than the scheme authority, to undertake that role. I am puzzled by the amendment, given that I thought we had gone a long way to ensure that there would be independent overview of the redress scheme's performance—clearly we did not go far enough in the mind of some noble Lords.
Amendment No. 41 provides, first, that the scheme authority may have functions to ensure its independence from the bodies that have liabilities under the scheme and, secondly, that the scheme authority may have functions in relation to improving performance within NHS trusts and issuing guidance on best practice and training. The amendment seems to enable the scheme to provide that the scheme authority should ensure independence from, in effect, scheme members. I am unclear what the amendment does in that respect. Under the Bill, the scheme authority will be a specified special health authority. Its role will be defined by the Secretary of State. Although it would involve close working with scheme members, it would certainly be independent of those members.
I agree that it is appropriate for scheme members to be given assistance to improve their performance under the redress scheme and that scheme members should be given guidance on best practice and training. However, the broad power in Clause 11(2)(c) enables the scheme to provide that the scheme authority shall provide advice or other guidance about specified matters—that could include advice on how to improve performance and on best practice. Clause 10(2)(d) requires scheme members to have regard to any advice or guidance issued by the scheme authority. We therefore have existing powers to achieve this effect.
We also propose to give the Healthcare Commission a specific role regarding the provision of training to scheme members on the operation of the redress scheme. The Healthcare Commission is well placed to do that because it already carries out training on the handling of complaints at local level. It is intended that training on the operation of the redress scheme will emphasise links between handling complaints and handling redress cases, and will cover good practice.
The Healthcare Commission, as opposed to the scheme authority, would be well placed to undertake that role. We are satisfied that the Healthcare Commission can take on both these proposed new roles—the provision of an annual review and training about the scheme—without the need to confer any new functions on it. As I said in my letter of
My Lords, I thank the Minister for that response, which helped to clarify that the important functions of dissemination of guidance on good practice and training have not been overlooked in the rather open wording of the Bill. I should have said earlier that we welcomed the Minister's remarks in his letter about the Healthcare Commission. We believe that the more the Healthcare Commission is involved in monitoring the redress scheme in particular trusts, the better. It would be an added layer of vigilance over the scheme that was perhaps not obvious previously. I have listened to the Minister's remarks and beg leave to withdraw the amendment.
moved Amendment No. 42:
After Clause 11, insert the following new clause—
"PATIENT REDRESS INVESTIGATORS
(1) The Secretary of State shall by order make provision for the appointment of suitably qualified patient redress investigators who shall have conduct of the investigation of the facts of cases in accordance with section 6(2)(a).
(2) A patient redress investigator shall—
(a) conduct the investigation of the facts of a case in accordance with the rules of natural justice; and
(b) produce a report on the principal findings of his investigation and on any lessons to be learnt in accordance with section 10(2)(h).
(3) A report produced under subsection (2) may provide the basis for the giving of any explanation in accordance with section 3(2)(b) and any assessment of liability in tort in accordance with section 6(2)(b).
(4) The Secretary of State shall by order set out the procedures for the investigation of cases in accordance with section 6(2)(a), prescribing such duties and conferring such powers on patient redress investigators as he may consider appropriate for the effective discharge of their functions.
(5) The Commission for Health Audit and Inspection shall maintain and publish a list of patient redress investigators, and shall have responsibility for overseeing the carrying out of the functions of such investigators."
My Lords, I spoke to this amendment earlier with Amendment No. 22, which the House agreed to. I mentioned then that there was a mistake in proposed subsection (5), which should refer to the Commission for Healthcare Audit and Inspection and not to what is printed. Subject to that small alteration, I beg to move.
My Lords, Clause 12(1) disapplies the common law duties of confidentiality in relation to the disclosure of information required by the scheme to the scheme authority. On further reflection, we now consider that unnecessary.
Since Committee, officials have discussed disclosure in more detail with the NHSLA, which handles the clinical negligence scheme for trusts. We now consider that, under the redress scheme, it is right for patient consent to be sought before any information covered by the common law duties of confidentiality is disclosed to the scheme authority. Where a patient refuses to give consent, it may not be possible to proceed with the case. It is intended that that will be made clear to patients when the initial request to disclose information to the scheme authority is made. Subsection (1) of Clause 12, which Amendment No. 43 deletes, is therefore unnecessary.
Amendment No. 43 also deletes subsection (2). Following further discussions with the Department for Constitutional Affairs, we are now of the opinion that Clause 12(2) duplicates the provisions of the Data Protection Act 1998. Subsection (2) provides that a person may not be required to disclose information to the scheme authority in relation to which he is under a duty of non-disclosure under the Data Protection Act. We consider the clause unnecessary and believe it should be omitted. The duties of non-disclosure under the Data Protection Act will apply in any event. I beg to move.
My Lords, in Committee noble Lords raised concerns that no explicit provision was made for misdirected complaints to be appropriately redirected by either the scheme member or the scheme authority.
Many patients find the complaints processes relating to their NHS care difficult to understand and to navigate. Often, the complaint is initially directed to their healthcare provider. Patients and carers involved with the NHS redress scheme may, mistakenly, believe that all complaints, whether arising out of their care or out of the handling of their case under the redress scheme, should go to the scheme member or the scheme authority. However, that may not always be appropriate. We therefore understand that, through no fault of the complainant, confusion may arise.
Amendment Nos. 44 to 47 together introduce a power to put in place arrangements to ensure that complaints made under the redress scheme complaints procedure, but raising matters that fall under another statutory complaints procedure, are referred directly to the appropriate body. To refer complaints in this manner is a matter of good practice. The amendments mean not only that patients using the scheme will not be responsible for finding the appropriate body to which to refer their complaint if it is misdirected through the redress scheme complaints procedure, but that their complaints will not be unnecessarily delayed. The possibility that some adjustment of the appropriate procedure may be necessary to allow complaints to be redirected, without the patient having to take action, has also been provided for.
The intention behind Amendment No. 48 is to ensure that personal data gathered under the redress scheme complaints procedure can be exempt from certain provisions of the Data Protection Act 1998—namely, the subject information provisions. This exemption will, in any case, apply only to the extent to which the application of those provisions would be likely to prejudice the proper discharge of the function of considering the complaint. The subject information provisions of the Data Protection Act allow for individuals, except in certain defined circumstances, to seek and obtain information held on them by others.
Section 31 of the Data Protection Act provides an exemption from these provisions by reference to a number of different categories of regulatory function. Section 31(6) exempts personal data processed for the purpose of considering a complaint, including complaints about healthcare under the Health and Social Care (Community Health and Standards) Act 2003. Amendment No. 48 therefore makes a scheme member or scheme authority considering a complaint under the redress scheme complaints procedure also exempt from the subject information provisions, to the extent to which applying those provisions would be likely to prejudice the proper discharge of their function of considering the complaint.
As already mentioned, under the existing NHS complaints procedure, personal data gathered for the purposes of considering a complaint may not be disclosed to the complainant to the extent to which this would prejudice the proper consideration of the complaint. For reasons of consistency, we believe that a similar exemption should apply to the redress scheme complaints procedure. I beg to move.
My Lords, I thank the noble Baroness, Lady Royall of Blaisdon, for her response on Amendments Nos. 44 and 45. I raised in Committee the point about complaints being directed from the redress scheme towards complaints schemes and about ensuring that the process by which that was done was fair to individuals. The noble Baroness gave a very technical presentation of the subject information provisions of the Data Protection Act. It would be grossly unfair to ask her, without notice, to explain exactly what she means, but subject information provisions are extremely important, particularly in relation to health and social care information. I would therefore very much welcome it if she would write to me to explain precisely what the provisions are. I believe that the noble Baroness is talking about information on a person that may refer to other individuals. I ask her to write to me in some detail about that before the Bill reaches the next stage.
moved Amendments Nos. 45 to 48:
Page 7, line 12, leave out "established by or under any enactment"
Page 7, line 15, leave out paragraph (b).
Page 7, line 18, at end insert—
"(8) The regulations may, in relation to complaints in connection with a scheme which are made or purport to be made under the regulations, make provision for securing—
(a) that any matters raised in such complaints which fall to be considered under other statutory complaints procedures are referred to the body or other person operating the appropriate procedures;
(b) that any such matters are treated as if they had been raised in a complaint made under the appropriate procedures.
(9) In subsections (7) and (8), "statutory complaints procedures" means complaints procedures established by or under any enactment."
Page 7, line 18, at end insert—
"(10) In section 31(6) of the Data Protection Act 1998 (c. 29) (exemption from subject information provisions for personal data processed for purposes of certain complaints procedures), after "complaint under" insert "section 14 of the NHS Redress Act 2006,"."
On Question, amendments agreed to.
My Lords, this is a repeat of an amendment discussed in Committee. It was submitted by the BMA, which wishes us to pursue it. Notwithstanding some of the points made throughout our discussion about how the redress scheme would work, particularly in relation to complaints procedures, the BMA wishes to make the point that there is no appeals mechanism for a person who disagrees with decisions reached under the scheme, regardless of whether they are entitled to redress. The BMA remains concerned that advice will be available only in certain circumstances. Therefore, in the BMA's view, and given the technical nature of some of the decisions that will be reached, there is still a need for an appeals procedure within the redress scheme. I beg to move.
My Lords, the noble Baroness's amendment has its heart in the right place, because she has identified what many will see as a drawback in the Government's model for delivering redress. It is a "take it or leave it" process. If you do not like the offer you get, what can you do? The Government's answer is that if you want to take things further you can go to court. Many people will not be able to afford to do that, or, for other perfectly valid reasons, will not want to—hence the idea of an appeal mechanism.
For all that, I cannot support this amendment. The whole point of the Government's redress scheme is that it is not a judicial process at all. It amounts to being an in-house consideration of the NHS's own liability. That consideration will result sometimes in an offer of financial compensation. Offers are to be made without prejudice, with only partial provision for disclosure of factual information. The rules of legal professional privilege will operate. These are not the features of a process open to appeal; you cannot appeal against an offer or a deliberative process. The amendment refers to a decision as though there were something judicial about what the NHSLA will be tasked with doing. With due respect to the noble Baroness and the BMA, an offer is not the same thing as a decision. It is something you either accept or reject. Therefore, it is inappropriate to seek an appeal mechanism in this particular context.
There is perhaps one other point to add—something that perhaps should not go unsaid before these Report proceedings are concluded. The thought behind the noble Baroness's amendment is entirely understandable because, right the way through our debates on the Bill, the Government have very consciously wished to convey the impression that what they are offering is something novel. It is not. The NHSLA will be tasked with doing work that it has been doing for years. The NHSLA is already in the business of making offers of financial compensation to aggrieved patients and settling claims out of court. A very high proportion of claims made against the NHS are settled in this way. It is a familiar and well tried process. So we should not allow ourselves to be seduced by the idea that the Bill provides a genuinely novel alternative to litigation. Stripped down to its essentials, it is a repackaging exercise: the same system with a few knobs on. That is another reason why the absence of an appeal mechanism should not astonish us unduly.
My Lords, clearly I would not entirely accept that this is a repackaging. I think that it is a very exciting and novel initiative—but we can discuss that some other time.
The redress scheme is intended to facilitate the resolution of cases in a swift manner, ensuring that redress is provided to the patient as quickly as possible. The aim is to resolve cases quicker than the current average of about 18 months for litigated cases. Creating an appeals mechanism would extend the time taken to resolve cases and unnecessarily increase both the costs and the bureaucracy of the scheme. It is difficult to estimate the precise cost of an appeals mechanism for decisions under the scheme because we do not know how many claimants might appeal. However, to illustrate the potential cost, departmental economists have modelled a hypothetical example which assesses the extra cost of an appeals mechanism in two scenarios: first, where the number of extra claims under the scheme is low; and secondly, where the scheme attracts a high number of extra claims.
The modelling is based on an assumption that 10 per cent of unsuccessful claimants appeal and, of those, 1 per cent have their appeals upheld. Where the number of extra claims is low, departmental modelling shows that this would affect approximately 320 claimants at a cost of around £1.24 million per year, some £840,000 of which would go to lawyers in legal fees. Where the number of extra claimants is high, approximately 930 claimants would be affected, costing around £3.27 million per year, of which £2.42 million would go to lawyers in legal fees. These projected costs are based on the assumption that an existing organisation or body would handle the appeals. Were a new independent body to be set up to administer an appeals mechanism, that would carry a considerable additional cost implication and would contradict the conclusions of the department's recent arm's-length body review. I believe that an appeals mechanism is not necessary as the scheme already has a number of safeguards that adequately protect the interests of patients.
As noble Lords are aware, it is intended that offers under the scheme will be equivalent to what would have been received through the courts. There would be no advantage in the scheme authority knowingly offering less compensation than would be received through the courts because, following legal advice, the offer would be rejected and may subsequently be reconsidered. That would be counter-productive. It would slow down the process and unnecessarily add to the administrative costs of the scheme. Perhaps more importantly, it would defeat the purpose of the scheme because patients would lose confidence in the scheme and would not use it.
One purpose behind the scheme is to enable redress to be provided, where appropriate, without recourse to civil proceedings. However, if an offer is not made, or is rejected, the applicant's legal right to pursue a claim will remain in being, unaffected by the scheme, and can be pursued through the courts in the ordinary way. We are satisfied that the scheme does not determine any civil rights for the purposes of Article 6 of the European Convention on Human Rights. Convention rights do not therefore require decisions under the redress scheme to be appealable.
Furthermore, where a patient or other person whose case is considered under the scheme is unhappy and believes that there has been maladministration, he or she will be able to complain under the redress scheme complaints procedure. Secondary legislation will set out the detail of how this complaints procedure will work. It is envisaged that most complaints will be resolved informally at local level. If a patient wishes to make a formal complaint about maladministration under the scheme, it is intended that he or she will be able to make a complaint to the scheme authority.
The Health Service Commissioner for England will be able to investigate complaints of maladministration from patients, including maladministration by scheme members of their functions under the scheme, or in connection with the settlement agreement entered into under the scheme, or in relation to the redress scheme's own complaints procedure. Patients making a complaint about matters other than maladministration of the scheme will be able to use the NHS complaints procedure.
We intend the redress scheme to be a speedy and effective means by which to provide appropriate remedy to patients harmed by mistakes during their healthcare. It has in place a number of appropriate and effective safeguards to protect patients. An additional appeals mechanism would create a time delay in taking cases through the process and would unnecessarily increase both costs and bureaucracy within the scheme.
My Lords, I thank the Minister for her lengthy reply to a small amendment. I listened to all her arguments and I am least convinced by the one on cost. I take what she said about the complaints procedure, although some of the amendments agreed to in the previous group may have made clearer how someone who is dissatisfied with the proceedings of the redress scheme should proceed. At this stage, I beg leave to withdraw the amendment.
My Lords, in Grand Committee we had a useful, although ultimately inconclusive, debate on Clause 17. The concerns which I raised at that time were related not so much to the principle of allowing the Welsh Assembly the power to formulate their own NHS redress scheme for Wales as to the constitutional propriety of devolving powers from Westminster in this manner; and the lack of clarity on the precise scope of the powers that are defined here. My starting point was the report published by your Lordships' Delegated Powers and Regulatory Reform Committee, which stated:
"We consider that the power in clause 17 is so wide that, if conferred on a Minister of the Crown in relation to England, it would be inappropriate even if subject to affirmative procedure".
I remarked previously that that is a very strong and unequivocal statement.
The answer given by the Minister—a point also made, very eloquently, by the noble Lord, Lord Rowlands—was that your Lordships' committee had not compared like with like. The Minister stated that Clause 17 does not seek to transfer powers to Welsh Ministers; rather it seeks to transfer powers to the Welsh Assembly as a whole. The Welsh Assembly, as a democratically elected legislature, has extensive procedures for dealing with secondary legislation—procedures fuller and more rigorous than those that apply to secondary legislation at Westminster.
I take that point. I also accept that framework powers of this general type were given the enthusiastic backing of the Richard commission as well as of the Assembly. These are no longer points of contention between us. The Minister also clarified in Grand Committee that this framework power is not in any way dependent on the reforms in the Government of Wales Bill, currently being debated in another place. The meeting that I had with her and her honourable colleague Mr Ainger did much to flesh out that issue, along with others. I thank them both for the helpful briefing that they jointly provided.
Having said all that, I wish to focus on one further aspect of this matter. We have been asked to accept the reassurance that it will be the Welsh Assembly, rather than Welsh Ministers, who will be in a position to exercise the framework power in Clause 17; and the further reassurance that the granting of framework powers to the Assembly is independent of the reforms proposed in the Government of Wales Bill. Yet page 4 of the Explanatory Notes to the Government of Wales Bill states:
"Under the proposals . . . most of the statutory functions which currently are exercised in the name of the Assembly would formally become the responsibility of Assembly Ministers. The Assembly's current order-making powers would in future generally be exercised by Ministers".
That concerns me. On the face of it, while it may be true that the framework power in Clause 17 is, strictly speaking, independent of the reforms in the Government of Wales Bill, that Bill would seem to have the potential to bring about the very situation envisaged by the committee chaired by the noble Lord, Lord Dahrendorf, when it voiced its criticism of this clause; namely the exercise by Assembly Ministers of inappropriately wide powers. The clause does not bring that about but, in combination with the Government of Wales Bill, it appears to be able to.
I do not for a minute doubt the good faith of Ministers. Nevertheless, we need to have it squarely on the record that there is no question of the provisions of the Government of Wales Bill being used by the Assembly to confer broad framework powers on the Executive. Clause 17(4)(c) is the immediate safeguard against that happening; in layman's language, this provision amounts to a bar on sub-delegating. But we understand from the letter sent by the noble Lord, Lord Warner, to the noble Lord, Lord Dahrendorf, that, under the Government of Wales Bill, framework powers such as this will be converted into so-called measure-making powers. Therefore, the bar on sub-delegation will fall away. Where does that leave us then?
I should therefore be grateful if the Minister could reassure me—I know that she wishes to—about the way in which the powers being granted in this clause may ultimately be used and by whom. Notwithstanding anything contained in the Government of Wales Bill, I should like to hear her say that these broad powers will reside, and continue to reside, with the Welsh Assembly and that any powers to make subordinate legislation which the Welsh Assembly may in the future choose to grant to Welsh Ministers will be, and necessarily must be, on exactly the same footing as the power vested in English Ministers to make subordinate legislation; in other words, a power to lay secondary legislation that is specific and explicit in the way with which we are all familiar.
I hope that she can give me that reassurance and that she will also understand why I have felt it right to labour these issues somewhat. I say again that I am in no way arguing against further devolution to Wales. I am simply seeking clarification of the extent of that devolution as embodied in the clause and an ambiguous explanation of where the powers granted in the clause are eventually to reside. I beg to move.
My Lords, I am grateful to the noble Earl for his understanding and for his wish for further clarification of the powers being vested in the National Assembly for Wales. I trust that I can give him the necessary reassurance.
The Government of Wales Bill provides for the conversion of "framework powers", as mentioned by the noble Earl, into enhanced legislative competence, which in this case would enable the Assembly to legislate by measure in relation to NHS redress in Wales. The conversion process is scheduled to take place around the time other provisions in the Government of Wales Bill, which replace the current Assembly with a separate executive and legislature, are implemented after the next Assembly elections in May 2007. To seek a framework power now is entirely consistent with the policy set out in the White Paper for a parliamentary Bill such as this one to make broader provision in respect of Wales. I emphasise again that these powers are being conferred on a democratically elected body with its own rigorous scrutiny procedures.
Paragraph 3.12 of the White Paper states that,
If the Assembly were to use its Clause 17 regulation-making powers prior to the clause being converted into enhanced legislative competence of the new Assembly around May 2007, the Assembly's existing procedures for dealing with subordinate legislation, involving consultation, scrutiny and debate and the opportunity to amend proposals, will apply.
It is also important to recognise that a considerable degree of discussion of the policies concerned takes place in its subject committees before the draft regulations themselves are scrutinised by the Assembly. Once the framework power is converted into enhanced legislative competence of the new Assembly as the legislature, the Assembly will be able to exercise the converted enhanced legislative powers relating to NHS redress by way of Assembly measures. Those broad legislative powers will rest with the Assembly. Only the Assembly will be able to make measures and these, too, will be subject to rigorous scrutiny.
The Government of Wales Bill makes provision for the procedure that must be followed in order to enact an Assembly measure. This follows the equivalent provision under the Scotland Act.
I hope that I have been able to reassure the noble Earl that the framework power is legitimate, proportionate and founded soundly on democratic principles of scrutiny and debate by a democratically elected Assembly and that he will therefore feel able to withdraw his amendment.
My Lords, I am grateful for that helpful reply. My mind is now at rest but perhaps I could make doubly sure. If I have understood the Minister correctly, she has made a distinction between the broad power contained in this clause and a delegated power that might be contained in primary legislation, which could in future allow Welsh Ministers to lay detailed subordinate legislation before the Assembly of the kind with which we are familiar at Westminster. If that is the case I have no problem. The enhanced legislative competence to be granted to the Assembly under the Government of Wales Bill is, in layman's language, a power to make primary legislation. In Wales, as the Minister told us, legislation of this kind will be known officially as measures. The framework power in Clause 17 may in due course become a measure, but it will continue to be exercisable by the legislature as a whole—that is the key point—not by Ministers or the executive. As a separate issue as I understand it, a measure such as this may in turn, if the Assembly so decides, confer a power on Welsh Ministers to make subordinate legislation on matters relating, say, to implementation.
I hope that I have got this right. It is somewhat complicated, at least for the uninitiated. If I have summarised correctly, I trust that if nothing else this short debate will have served to guide Members of another place when in due course this Bill receives their consideration. I beg leave to withdraw the amendment.