[Relevant documents: The Third Report of the Constitutional Affairs Committee, Session 2005-06, HC 754, on Compensation Culture, the Fifth Report of the Committee, Session 2005-06, HC 1009, on Compensation Culture: NHS Redress Bill [Lords], and the Government’s response thereto, Cm 6784.]
I beg to move, That the Bill be now read a Second time.
Every day, NHS doctors, nurses and other dedicated health care professionals look after patients, improve health and well-being and save thousands of peoples’ lives, and we all owe them an enormous debt of gratitude. But sometimes something goes wrong. The Bill deals with the minority of cases in which patients are harmed by their NHS care. All of us know about such cases from our own constituencies. What I find, and I am sure that other hon. Members find, is that people want to know why the treatment went wrong, they want an apology from the hospital or doctor concerned, and they want to be reassured that lessons have been learned so that others will not suffer like them in future. Sometimes, but by no means all of the time, they would like some compensation.
The Secretary of State will be aware, I am sure, that clauses 1, 5 and 14 all provide for order-making powers. They deal with the power to establish a redress scheme, the duty to consider its application, and the question of complaints. Why, under clause 16, are those order-making powers subject to the negative procedure of the House, rather than to its affirmative counterpart?
If the hon. Gentleman wishes to pursue the matter, we can consider it further, but it is perfectly reasonable for the negative procedure to be used for a Bill in which the principles are clearly set out and the detail will be established by order in secondary legislation. I shall say a little more about the structure of the Bill and some changes that we wish to make to it in Committee.
I welcome the Bill and my right hon. Friend’s commitment to improving the system. Does she agree that one way in which we can deal with such matters more quickly is that once a constituent makes a complaint to the health authority, it should give that person as much information as possible? There should be as much information and detail as possible to enable people to decide how they wish to proceed. In far too many cases, even in the authority that we both share, the information is not detailed. Consequently, people feel that they must seek legal advice.
My hon. Friend is right. Trying to get a much faster and more open response to complaints and things that have gone wrong is precisely what the Bill tackles. As he suggests, all too often, patients and their families feel that the harm that the original incident did is compounded by delays in investigating the complaint and especially by the legal system that deals with clinical negligence cases. Too often, it is perceived as complicated, slow, unfair and costly in time as well as legal fees. Patients and their families often do not get either the explanation or the apology that they want.
It is also fair to say that the system is equally unsatisfactory from the point of view of NHS staff because clinicians can end up spending far too much time on legal processes which they could be using to care for other patients. Staff morale can be damaged, and because the current arrangements encourage a culture of defensiveness, the NHS loses the opportunity to use the experience and information that patients provide to improve care and clinical practice for the future.
Growing dissatisfaction with all those problems led the chief medical officer for England, Sir Liam Donaldson, to produce his report, “Making Amends” in 2003, which set out a series of recommendations for reforming the way in which the NHS responds to clinical negligence. I am sure that hon. Members of all parties will want to join me in paying tribute to Sir Liam, who is an outstanding champion of patient safety.
The Bill effects Sir Liam’s recommendation to introduce a much simpler and faster NHS redress scheme. It also responds to the recommendations of the health service ombudsman, Ann Abraham, in her report on the NHS complaints procedure, which was published earlier this year.
Does the Bill provide for a hospital complaints system? If I read clause 1 (5), (6) and (7) correctly, primary care is excluded and it would take further primary legislation to set up a similar scheme for primary care, where approximately 90 per cent. of health care takes place. That does not make sense.
My hon. Friend’s first point is correct—the scheme was designed to deal with clinical negligence in hospitals. However, as a result of discussions in another place, we have extended it to relate to hospital services that are provided outside the hospital building. The Bill does not—and is not intended to— cover GPs who provide primary care, for the simple reason that most GPs are independent contractors to the NHS. They have their own arrangements through private indemnity insurance for dealing with cases of clinical negligence that arise. That is why the Bill will not cover primary care services under the general medical services contract.
The Secretary of State has already been generous in giving way. For the avoidance of doubt, I stress that the principle that underlies the Bill is sound and reasonable. The right hon. Lady gave me the facial impression that she thought my point was narrow, anorakish or even—perish the thought—tendentious. Let me simply say that it was not. The Leader of the House, who is present, will understand the genesis of the question, because I appeared before the Modernisation Committee last week and made a similar point. May I ask the Secretary of State to accept that, often, what is well intentioned goes wrong through poor secondary legislation and that it might help the House if we could have a draft of the order-making powers before the Bill’s final stages, not to undermine but to improve it?
I entirely accept the hon. Gentleman’s good faith and his support for at least the principle of the Bill. It will not be possible to publish draft orders before the completion of its passage, for the simple reason that there needs to be an extended period of formal and informal consultation with patients and other stakeholders about the detail of the redress scheme. The hon. Gentleman may well say that that reinforces the case for the affirmative action procedure to be used, and that is a matter to which I am certainly prepared to give further consideration, although I think that the point that he makes will be best met by the thorough process of consultation on the detail of the orders before we bring them back to the House. We will certainly publish them in draft before we bring them to the House under, as we propose at present, the negative order-making procedure.
The Bill was introduced in the other place and comes to us in an amended form. I will return to that point in a moment, because the significant amendment was the introduction of clause 12, with which we are not happy. I should like first to say a little more about the kind of case that will be covered by the new redress scheme and how the scheme will work.
The Bill sets out the framework that will enable us to establish an NHS redress scheme to deal with clinical negligence claims arising out of NHS hospital treatment, brought by patients, their dependents or, in the worst cases, their estates. It is intended to cover cases where compensation awarded by a court would be no more than £20,000. We have selected that figure because in the majority of such cases the legal costs of bringing the action are wholly disproportionate to the compensation awarded. The new scheme will not extend patients’ rights to compensation—it will not create new rights—but by creating a simpler, faster route to redress, it will significantly improve access to justice for those with rights that already exist under current law.
I understand the point that the Secretary of State makes about the upper limit, but can she tell us what proportion of cases fall within the £20,000 limit?
As I said a moment ago, the majority of clinical negligence cases that are settled involve compensation of less of £20,000. In the past couple of years, in slightly more than half of the cases settled for between £10,000 and £20,000, the legal costs exceeded the damages. For cases settled below £10,000, legal costs exceed compensation in some 90 per cent. of cases. That is not a satisfactory situation.
I shall give an example of a case that was dealt with by the health service ombudsman, because it had not been properly dealt with by the hospital concerned. A woman, Mrs. X, injured her foot in a fall. She went to accident and emergency, where X-rays were taken, and she was told that she had sprained her ankle and did not need any treatment. A few weeks later, when she was still in pain, she saw a consultant orthopaedic surgeon who confirmed that the X-ray showed no fracture. The ankle was put in plaster and Mrs. X later had physiotherapy. Still in pain, she went back to the consultant in October 1998 and he arranged an exploratory operation, which took place in February 1999. In July 1999, on reviewing the original X-rays, the consultant surgeon realised that Mrs. X had, in fact, sustained a fracture of the heel bone. She was only told about that in September 1999—18 months after she first attended accident and emergency.
The issue should have been dealt with by the hospital trust involved, but as it was not, the ombudsman’s clinical assessor identified a very obvious extensive fracture of the heel bone that had unfortunately been missed by both the consultant radiologist and consultant surgeon. If the diagnosis had been right at the outset, Mrs. X would have had the right treatment, instead of being subjected to what proved to be an unnecessary and painful operation. Once the ombudsman had intervened in the case, the trust apologised to Mrs. X and paid her damages of about £12,000. Of course, that should have happened on the initiative of the trust, without the need for the ombudsman’s intervention.
The new redress scheme that the Bill will establish will encourage all the hospitals that it covers—NHS trusts, foundation hospitals and independent providers—to take action themselves on cases like that of Mrs. X, to seek them out even if a complaint is not made, to investigate the facts and, where clinical negligence is established, to apologise, to learn the lessons and, where appropriate, to offer compensation.
Hospitals and other medical institutions will be encouraged to be proactive in this respect, but will there be quotas or targets for those institutions that could count against them if more actions resulted in payments being made? If that is to be the case, hospitals’ chief executives might not encourage their staff to be proactive in offering such payments.
The hon. Gentleman makes an extremely important point. However, our intention is precisely the opposite. It is to encourage a much more open culture in which doctors and other clinicians feel that they can own up to and learn from their mistakes—as is already best practice—rather than finding themselves in an adversarial situation in which they might deny that anything had gone wrong, possibly at the behest of their lawyers or their insurance company. I shall deal in a moment with the role of the Healthcare Commission, which will have the important responsibility of ensuring that each hospital trust—each scheme member—is applying and operating the scheme in the way that is intended.
Does the Secretary of State accept that it is important to patients that there should be an element of independence in the process? If they see that the redress scheme is being run by the NHS Litigation Authority, they might be less convinced that they are getting genuinely independent scrutiny and a genuinely independent assessment of their compensation.
I shall deal with that point in a few moments, when I talk about the amendments that have been made to the Bill in another place. There will be important independent elements in the scheme, however, including the right to free independent legal advice before any settlement is accepted.
The new scheme will not simply change the way in which complaints like those of Mrs. X are dealt with. Even more importantly, it will also require hospitals to identify all cases of possible negligence, whether or not there has been a complaint from the patient concerned. When a trust considers that a case could fall within the scheme, it will obtain the patient’s permission to refer the case to the scheme authority. The scheme authority, which we intend to be the NHS Litigation Authority, will assess liability and the appropriate level of damages. Where liability exists, the trust will offer an explanation and an apology. Where appropriate, an offer of financial compensation will be made, broadly equivalent to the level of compensation that could be awarded in a successful claim before a court.
As the Secretary of State knows, a large number of people from Wales are treated in England. Will she explain to the House how cases involving such people will be handled, given that the Welsh Assembly may or may not decide to set up a similar system in Wales?
If a patient from Wales is treated in an English hospital, that hospital would, as a scheme member, be covered by the new redress scheme. If any of the hon. Gentleman’s constituents were in the unhappy position of having such a problem, they should be covered by the new scheme. As he says, it is up to the Welsh Assembly to decide whether it wishes to use the framework provided in the Bill to apply the scheme to NHS hospitals in Wales.
On a related point, many of my constituents are treated in Scottish hospitals—either Borders general or one of the Edinburgh hospitals—but under the aegis of the English health authority. Am I right in concluding that this scheme would be available to them?
That is correct. The scheme will not apply in Scotland, and obviously it is a matter for the Scottish Parliament whether it wishes to establish equivalent procedures.
I was asking the Secretary of State about my constituents in England who are treated in Scottish hospitals. Indeed, they are sent to Scottish hospitals by the English health service because those are the nearest to them. Will they be able to make use of the scheme or will they be denied it?
I thought that was the point that the right hon. Gentleman was making. My answer is that the Bill does not apply to hospitals in Scotland. It will be for the Scottish Parliament to decide whether it wishes to introduce an equivalent scheme. The NHS in Scotland is a devolved responsibility; I believe that to be the case. If I am wrong, I will no doubt shortly be corrected. It follows from the logic of the scheme that it applies to the hospital organisations that are members of it—in other words, NHS trusts, foundation trusts and independent providers to the NHS in England.
If treatment in a Scottish hospital is commissioned by an English health authority, which in most examples would expect either to be paying the Scottish authority or at least to have some reciprocal arrangement for cases that cross the border, surely the provisions referring to treatment outside the hospital, or indeed outside England, will apply?
I take the right hon. Gentleman’s point that he is talking about treatment commissioned by the English NHS—in other words, a primary care trust in England is responsible for the treatment, even though it is being given in a Scottish hospital.
If criminal negligence is involved, and the patient therefore has a claim that could arise under English law, the scheme will apply. I hope that that is clear. If not, this is a matter that the Minister of State, my hon. Friend the Member for Leigh (Andy Burnham), can return to later in the debate. If necessary, I shall write to the right hon. Gentleman to go through the detail of the application of the scheme where devolved boundaries are crossed.
The new redress scheme will offer patients a simpler and faster alternative to a court case, but it will not—this is an important point—remove a patient’s right to bring legal proceedings. If the patient decides to reject an offer under the scheme, or if no offer of compensation is made, the patient will still be able to pursue the matter through the courts, or, if the patient wishes, to go direct to the courts and not use the redress scheme. However, where the redress scheme is used and where an offer of compensation is made, legal advice will be provided to the patient free of charge in relation to the offer and any settlement under the scheme.
In making proposals for the redress scheme, what comparisons did the Secretary of State make with other international schemes, and where does she see this scheme in the new international league table? Could we do rather better than she is suggesting?
When the chief medical officer undertook his review for the report to which I referred earlier, he looked at a number of other countries and the variety of schemes—often called, sometimes wrongly, no-fault compensation schemes—that exist, for instance, in Scandinavia, New Zealand and so on; but for a variety of reasons, which he spelled out in that report, he felt, and the Government concur, that it would not be suitable to try to introduce a so-called no-fault compensation scheme, not least because people would end up arguing about what caused the damage, even if they were not arguing about where the fault lay. That is why he recommended a scheme along the lines of that provided for in the Bill. We have accepted that recommendation.
My hon. Friend the Member for Stafford (Mr. Kidney) raised the question whether the scheme is confined to hospital services. Originally, that was our intention, but we listened carefully to the debate in another place and the Bill, as presented in this House, will enable the scheme to be extended through secondary legislation to services over and above hospital services. For instance, services that fall into the grey area between primary and secondary care can be brought within the scope of the scheme. That is particularly important as changing medical practice and technology allow more of what we think of as hospital care to be delivered in the community.
I referred to discussions in another place. One significant change was made there that we cannot endorse. We intend to try to delete clause 12 in Committee. The Bill as originally published provided for a coherent redress scheme focusing on the speedy resolution of cases after full investigation by scheme members at local level, giving full redress to patients through a single-stage scheme, and encouraging and facilitating local learning in hospitals from mistakes that had occurred.
What I do not like about the amendments made in the other place is their creation of a two-stage scheme involving two administrative bodies, something that we believe will prove too costly and bureaucratic. It allows investigators to act independently of a hospital, which will work against the aim of encouraging local learning and a more open culture. The Healthcare Commission will be charged with supervising the work of the investigators. The commission believes that that would be inappropriate and would not sit well with its current expertise and role.
The Secretary of State seems to have skipped the point of principle involved in the amendments and concentrated on detail. The point of principle is that patients who make a complaint or, indeed, a claim against an NHS trust expect and need an independent investigation. Is the Secretary of State saying that the amendments are wrong because investigations should not be independent? It seems to us an essential point of principle that they should be.
That is precisely where we differ. In the original Bill we provided for a single scheme allowing a hospital trust to identify untoward incidents that might well involve clinical negligence, as well as dealing with complaints made to it directly by patients or their families. The trust would investigate and ascertain the facts and, with the patient’s consent, would refer the case to the scheme authority, the NHS Litigation Authority, to establish liability and an appropriate level of compensation. The patient would, however, have access to independent legal advice and, in some cases, to independent medical advice as well, because independent medical advice might well be needed to establish the full facts.
Because the scheme originally proposed does not replace or deny a patient’s right to go to court, we believe that it is proper and sensible to stick to it. We think that there should be an integrated investigation system and a single authority, the NHS Litigation Authority, overseeing the scheme, rather than the two-part process established in the other place.
Does the Secretary of State realise that a patient to whom injury may have been done will expect not just an independent investigation, but an investigation that is not conducted in circumstances involving a clear conflict of interest between establishing the facts and the degree of liability and the amount of compensation to be paid? The Government’s scheme allows such a conflict, which will drive patients to the point of pursuing claims through litigation rather than using the fact-finding mechanism introduced by their lordships to seek redress from trusts.
Our scheme is entirely designed to respond to what patients tell us they need: much faster investigation of complaints, much faster establishment of what went wrong, and real learning of lessons. I am sure that the hon. Gentleman has heard from his constituents something that I hear regularly: “What I want is for lessons to be learned from what happened to me, so that someone in the same position does not suffer in the same way.”
Those people want compensation to be paid, where appropriate. By having a single scheme under the aegis of the NHS Litigation Authority, we believe that we can most effectively respond to the wishes of patients and—this is part of what patients rightly want—ensure that there is an open culture and a culture of learning in NHS and other hospitals.
I think that we would all agree with those aims, but the Secretary of State has not explained what the problem is with the scrutiny being independent, so that it has greater authority in the eyes of the patient. As has been explained, we should be focusing on the patient.
The problem—I was just starting to make the point—is that the scheme would be more complex and more cumbersome if we had completely independent investigators and we had two separate organisations, with the Healthcare Commission overseeing the work of the investigators and maintaining the register of independent investigators. We were told in another place that those supporting the amendments had in mind the coroners model. For anyone who has dealt with constituents who have been through a difficult inquest, that is not a particularly happy model. We would have the NHS Litigation Authority looking at liability and the appropriate level of damages, and no single body would be responsible for oversight of the operation of the redress scheme as a whole. As I said a moment ago, the Healthcare Commission—we consulted about that possible new role—is very clear that neither the validation and accreditation of staff nor the oversight of local investigators would fit sensibly with its current remit. Nor does it believe that it would have the expertise to undertake those roles.
A further and not negligible point is that the potential cost of establishing a completely separate set of independent investigators could amount, depending on how many complaints were brought, to another £40 million or so a year. I do not believe that the benefits that have been claimed for the independent investigators would be realised. They would not justify those additional costs.
This is an issue of credibility. I do not agree with all the arguments that the Secretary of State has advanced but, even if they were to be the case, is she suggesting that there should be a system that is not credible, as opposed to having an independent system that is credible? She seems to be veering towards a not credible situation.
I do not accept the Opposition’s charge that the scheme that we proposed would not be credible. Indeed, the principle of the Bill, the way in which we intend to proceed and the recommendations of the chief medical officer have been welcomed by a number of patients organisations and others involved in these matters. We have, of course, put in place additional safeguards to ensure that the scheme works in the way in which we intend and believe that it will. We want the Healthcare Commission to have a specific role providing training to the hospital trusts and the scheme members on the way in which the redress scheme will operate. We will ensure that the Healthcare Commission’s annual review of the provision of health care by NHS bodies will consider how effectively each of those hospital trusts is operating the redress scheme. In other words, there will be a new standard relating to redress and the Healthcare Commission will review the operation of the scheme against the new criteria.
I think that a simple scheme is a good idea, particularly when there is still access to the courts, but clause 8(3) refers, in shorthand, to a list of legal people who could provide advice upon an offer. That list is to be prepared by “a specified person”. Can my right hon. Friend assure me that that specified person will be totally independent of the Department of Health? For example, it may be the Law Society of England and Wales, of which I am a member and which has a panel of clinical negligence experts.
I can certainly give my hon. Friend that assurance. In fact, we envisage that the Legal Services Commission, which holds its own list of appropriate clinical negligence lawyers for legal aid purposes, will fulfil that function.
In addition to the role of the Healthcare Commission, clause 15 enables the independent health service ombudsman to investigate complaints about any maladministration of the redress scheme. Ann Abraham, the ombudsman, has welcomed the fact that the scheme’s operation will fall clearly within her jurisdiction. She believes that the fact that an independent review of complaints about the scheme will be available will give reassurance to those using the scheme, to complainants and to the NHS bodies involved.
May I revert to a point made earlier by the hon. Member for Buckingham (John Bercow), who has since left the Chamber? I should like to correct an answer that I gave about the negative procedure. The first regulation establishing the scheme under the Bill will, in fact, be subject to the affirmative procedure. I hope that that will reassure the hon. Gentleman, and I shall make a point of drawing it to his attention.
There were disagreements on clause 12 in the other place. Clearly, they will follow us into Committee as well as into this debate. Despite those disagreements, I believe that the Bill has been improved by more than 10 hours of discussion in another place. Following those debates, we have already made other amendments to the Bill as originally published.
In clause 3, we put the offer of an apology into the Bill and we prevent caps on individual heads of damage—for instance, loss of earnings. That makes it much clearer that payments received under the redress scheme will be in line with those made through the courts.
We have strengthened clause 8 to provide that legal advice must be available on the offer of redress and a settlement agreement.
The Secretary of State has twice referred to some free legal advice being available. Will she confirm that it is extremely limited in scope? It comes at the end of the procedure, not at the start when it would be most useful. There will not be enough time for a lawyer to go through the whole detail of the case and appraise the adequacy of an assessment. The lawyer will come in at the end, have a glance and have little time to do much more. Would not legal advice of the sort the Secretary of State talks about be more useful to people throughout the process rather than only at the end?
It lies absolutely at the heart of the redress scheme that we will be able to give quicker responses and better compensation to patients, rather than paying greater fees to lawyers. I am quite certain that lawyers will argue, as some outside the House have already, that much more legal advice should be made available all the way through the process. If we do that, however, we might as well stick with the existing situation in which people seek legal advice and go to court. Given that the redress scheme does not rule out the possibility of court action but will in many cases, I hope, replace it, it is right that the independent legal advice should come at the end of the process and that, in return for a fixed fee, an independent, properly qualified lawyer will be able to look at what happened, the medical evidence and what is proposed by way of compensation and apology. No doubt, though, that is a point to which we shall return later in this debate and in Committee.
Clause 8 also allows for a jointly instructed medical expert to be engaged at any point throughout the redress scheme, where both the patient and the trust feel that that would be helpful.
May I caution my right hon. Friend? As one who did personal injury cases for many years before entering this place—indeed, I think that I am still on the Law Society’s personal injury panel—I know that in many circumstances it is very difficult for a lawyer to give advice on the adequacy of an offer of quantum unless that lawyer knows how strong the case is on liability. If an offer was made at, say, half of what full liability would command, but the liability case for the individual would be weak were the matter to go to court, the lawyer might advise someone to accept a half offer. When the Secretary of State considers the scheme and the regulations, I would caution her that the lawyer will need to be able to look to some extent at liability before he or she can advise adequately on quantum, unless the lawyer wants to get sued.
My hon. Friend has a great deal of valuable experience in this matter, but his point seems to reinforce the case for independent legal advice to be available at the end of the process, where, of course, the lawyer can look not only at the details of what happened and any independent medical assessment that has been made, but at the assessment by the NHS Litigation Authority about liability, as well as the level of damages.
Is there not some confusion? The Secretary of State is explaining why, in her view, the advice can only come at the end, while admitting that the Government amendments in the Lords to clauses 6 and 8 appear to suggest that there is scope for giving advice throughout the process and for using jointly instructed experts. My right hon. Friend the Member for Liverpool, Wavertree (Jane Kennedy) certainly gave the impression in her letter to the Constitutional Affairs Committee that the Government would look sympathetically on that kind of reading of those amendments in the secondary legislation. I am a bit confused about what message the Secretary of State is trying to give to us.
As originally published, the Bill established quite clearly that legal advice could be available. We have strengthened that to ensure that legal advice must be available on the offer of redress and the settlement agreement. So that will come at the end of the process and enable the patient to make an informed judgment about whether to accept the offer or to reject it and pursue a court case instead. However, as a result of debate in another place, clause 8 will allow the patient and the trust together to instruct an independent medical expert, during the investigation of the incident or the complaint, to ensure that there is a full and agreed diagnosis of what has gone wrong.
We have also introduced an amendment to clause 10 to enable the scheme to require the hospitals and trusts that are members of the scheme to prepare and publish an annual report about the cases that they have dealt with under the redress scheme and the lessons learned from them. Clause 14 will provide the power to ensure that wrongly directed complaints under the scheme are redirected to the appropriate body.
Could the Secretary of State say something about whether time limits will be imposed either by the Bill or by subsequent regulations within which the trust and all the other parties in the NHS must respond to complaints? One of the big problems at the moment is that they simply do not respond in what seems to be a reasonable time.
My hon. Friend makes a very important point. Like her, I have dealt with constituents who have been intensely frustrated by the length of time taken to get the facts acknowledged and a proper apology offered. I am rather sympathetic to the point that she makes, although we have not yet considered the possibility of trying to impose time limits at different stages of complaints. Of course, such time limits would depend somewhat on the complexity of the matter that was being investigated, but I am sympathetic to the principle, and that is a point to which we should return not only in Committee, but particularly when we consult on the detailed orders that will establish the scheme.
Clearly, there will be lively debates, not only this afternoon but in Committee, about some aspects of the redress scheme—in particular, the nature of the investigation that should take place—but I believe that, overall, not only in the House but across the country, there is broad support for the principles behind the Bill, and I commend it to the House.
On behalf of the Conservative party, I welcome the Bill, particularly in the form in which it has come to us from another place. The Secretary of State is quite right to say that, every day, tens of thousands of patients are treated in our hospitals. They are grateful to NHS staff for the care and attention that they give, and successful treatment is provided to the highest standards in the overwhelming majority of cases.
The Secretary of State will also be aware that, as in other health care systems across the world, a small fraction of treatments give rise to adverse events, and a tiny fraction of those adverse events give rise to injury. We need to pay very careful attention to those cases—not least, as she says, to learn the lessons and constantly to improve the quality of care. I am sure that she and the Minister of State, Department of Health, the hon. Member for Leigh (Andy Burnham), who has taken up ministerial responsibility for patient safety and quality, will pay very close attention to the progress of the National Patient Safety Agency’s reporting scheme, which, like so many other schemes, is running late. I am sure that it will speed up under the Minister’s whip.
We cannot underestimate the importance of these matters, because for patients who are affected and for those who suffer injury, such events can be very serious indeed. All of us as MPs will have had such cases in our constituencies; I have certainly had a number. Indeed, the Minister of State, Department of Health, the hon. Member for Doncaster, Central (Ms Winterton) will recall our debates on the Human Tissue Bill, and the fact that that legislation itself gave rise to quite a number of cases—certainly in my constituency—of constituents feeling very strongly that the way in which the NHS dealt with them portrayed precisely some of the unfortunate issues with which we are now trying to get to grips. The truth of what had happened was not acknowledged and the facts were not made available—in some cases for many years. Even when the facts were transparent, for reasons of not admitting liability, they did not give rise to an apology or a decent explanation, or any intention to provide substantial redress. As it happened, my constituents were not seeking financial compensation; they were driven to the courts by the failure of the NHS to accept liability and responsibility, and to provide proper explanations and an apology. That is principally what they were looking for.
We should start by recognising the fact that, strictly speaking, this legislation is not required for the NHS to provide the facts, an explanation or an apology. All those things can happen now, and should happen now. They should not happen only as a result of this Bill. This legislation is not an alternative to litigation; it should provide a basis in difficult cases, where the facts are not easily found and where fault is not easily established, for a much more patient-friendly way to proceed.
My hon. Friend talked about examples that he has encountered in his constituency as a Member of Parliament. Does he agree that sometimes the saddest cases are those of a husband or wife complaining to him about the death of a spouse in hospital? Even if the hospital is not at fault, would not an independent inquiry conducted into the hospital have more resonance with the complainant than the hospital saying, “It is not we who are to blame”?
My hon. Friend is quite right. I am sure that he, like me, has had constituents coming to him to talk about a relative—a husband or wife perhaps—who had died in hospital, and about the fact that they knew that things had gone wrong. Such events may or may not give rise to a claim for clinical negligence. We are of course dealing in the Bill with something that concerns an issue in tort—an injury resulting from that, which can be claimed for through a court. Such people have often said to me—and, I am sure, to my hon. Friend—that they are looking for a recognition of the truth of what happened and a reassurance that it will not happen again.
People would often take tremendous comfort from knowing that an event would not happen again—but I am afraid that people are not confident about that. I know from personal experience that the patient advice and liaison services in the hospitals in my constituency—I have two large hospitals there—go to enormous lengths to try to establish the facts of what happened. I have been very impressed on many occasions by the detail that the service has gone into. However, that does not mean that my constituents are satisfied about the independence and veracity of what is said. A degree of independence is required.
The Secretary of State talked about independent medical experts, but patients are looking for an investigation into a matter that is serious and has resulted in their injury, and about which they might otherwise go to court. They want that independence of investigation, because it gives them the confidence to be able to reach a settlement or to accept an explanation, an apology and some redress from the NHS, without feeling that they have to have their day in court.
We are not trying to establish an alternative courts procedure through the system, but if it is independent, members of the public may certainly be able to treat the process as if it were their day in court. They will have the facts examined, they will know what happened and they can insist on the lessons being learned. That point comes home.
To an extent, we have been talking about complaints in general. The Bill is about a distinct subset of complaints that give rise to this kind of claim. However, across the complaints procedure we can see how often members of the public and patients want an independent investigation. That has happened in so far as they have been given the opportunity to go to the Healthcare Commission. Previously, people had community health councils, which often supported complainants. The Government took that away from them. [Interruption.] There is an independent complaints service. Many members of the public go to the Healthcare Commission, not least because they want the independence of the commission’s investigation.
The hon. Member for Birmingham, Edgbaston (Ms Stuart) just asked about time limits. She is right. There is sometimes a case for considering how long it is taking to examine complaints. I applaud much of the Healthcare Commission’s work, but it has had to set limits on the time that it will take to examine complaints. I am a bit disappointed because in letters I have had from the Healthcare Commission, make it perfectly clear that those time limits do not apply to the existing backlog of cases. There will be some cases that are taking a long time and there will be no certainty about how long it will take to resolve them. That gives an indication of the volume of activity that we are dealing with and how important it is to members of the public that cases do not go on for months. Sometimes it takes more than a year to resolve a case.
The hon. Gentleman may be aware that in planning law, if the local authority fails to respond to a planning application within six weeks—I think that that is still right—that application is deemed to have been refused.
My hon. Friend tells me that it is eight weeks. Does the hon. Member for South Cambridgeshire (Mr. Lansley) agree that there should be a similar system for NHS redress claims, so that there would be a deemed admission of liability unless there had been a response within a specified period?
I am not sure that I do. I feel myself not bending towards that idea. In planning, one can go to the Government office and seek an appeal on the grounds of non-determination. In this instance—if the hon. Gentleman cares to join us in supporting the Bill as it stands—it seems to me that if there is an independent process, at least there is a reasonable chance of there not being a delay occasioned by the interests of the trust itself. At least if there is some delay, it will be as a consequence of the volume and complexity of the cases being dealt with. I hope that the independence of the system and the ability to appoint independent redress investigators will give greater flexibility, rather than having things determined simply by the resources of the NHS Litigation Authority, as the Government propose.
The one thing that strikes me as a common chord is that I do not believe that there is any financial difference between an independent and an in-house investigation, in so far as there is an opportunity cost in taking surgeons and doctors away from their duties. My main concern is that if independent people are brought in, they will not know the operating methods in the hospital, so it will take them longer to get to the nitty-gritty of the affairs, to get to the people that they need to reach, and to get the information. I am talking about that time delay. Those people might not come up with the same degree of accuracy when they carry out the investigation. That is my difficulty with the independent aspects.
I do not agree with that. Let us face it, under the system that the Government propose, even though it is not independent, there must be a fact-finding process before moving on to a fault-finding process. The Government themselves propose that there should be independent medical experts, who, by their nature, will presumably not be employed by the trust in question, so there will be a degree of independent scrutiny. Frankly, that must be essential because in the absence of independent scrutiny, I am sure that patients would not regard the outcome of an investigation—whether in the form that the Government propose or that which we propose—as having the necessary validity for them to accept any kind of redress. There must be a degree of independence.
Will the hon. Gentleman give way?
I will, but then I must get on to the detail of the Bill.
Would the patient redress investigators be lawyers, clinicians, or lay people with just a general knowledge of the health service? What does he envisage that those people’s qualifications would be?
I am sure that that would, in part, depend on the nature of the facts that needed to be established. We are talking about a fact-finding investigation following an assertion of clinical negligence, so it would be likely that those people would be medically trained and, of course, independent of the trust in question. I am sure that Ministers would expect there to be a degree of independent medical investigation, as would be the case under their proposal that independent medical experts be available.
I thank their lordships for their amendments to the Bill. They have given us a Bill that would enable us to set up a scheme that would be coherent and with chances of success that did not exist previously. I especially pay tribute to the work of my noble Friend Earl Howe, on behalf of my party, and that of Baroness Neuberger and Baroness Barker, who speak for the Liberal Democrats. They created a consensus in another place on amending the Bill in such a substantial way.
As has been illustrated by the nature of our discussions so far today, the debate is not party political, but one of policy and practice. The arguments clearly point towards the merit of the Bill as it stands, so the Government would do well to accept the Lords amendments, rather than trying to reverse them. I was thus sorry to hear the Secretary of State say that the Government wish to change the Bill. Government Members will support the Bill’s Second Reading and endorse its principles, but clearly there is a major principle at the heart of the Bill that the Government do not endorse, which, I fear, shows once again that they, and the Department of Health in particular, do not have the sureness of touch that is needed to deliver better policy. In this case, they would do well to show a degree of humility and accept that there is conceivably a better policy than that which they originally put forward.
Our policy on clinical negligence is simple. Any patient who is injured by negligent treatment should be entitled to compensation. There must be affordable access to justice, and such justice must not lead to excessive compensation or cost, because as we know, every penny lost in litigation is a penny less available to provide patient care. We must thus find a system that is fair, not prone to abuse or excess, not too bureaucratic, and not exposed to speculative claims.
We welcome the principles and intentions that underlie the Bill. We are pleased that the Government recognise that clinical negligence litigation is in serious need of reform. There is widespread concern that the compensation system is complex, unfair, slow, costly and wasteful. The process can be stressful for the parties involved—both patients and health care professionals. The Bill thus represents a limited step towards addressing the problems.
The cost of clinical negligence litigation to the health service in 2004-05 was £502 million. The contingent liability is estimated at several billion pounds. Indeed—the Secretary of State did not mention this—because of the changes in the relevant discount rate, the contingent liability increased by £635 million in the 2005-06 accounts alone.
Of course, legal aid provides the oxygen for medical litigation, because most cases are publicly funded. Last year, 6,217 legally aided clinical negligence cases were concluded. Of those, 2,574 went beyond the investigation stage, and there was a substantive benefit to the claimant in 56 per cent. of cases. Happily, I do not have to do the arithmetic in my head, but the overall success rate for legally aided clinical negligence cases was 23 per cent. That figure, which represents about 1,400 cases, must be contrasted with the hundreds of thousands of adverse clinical events that occur. Even if only a tiny proportion of those adverse events gives rise to injury, it will be apparent to the House that there is still a huge disparity between the number of possible negligence claims and the number of cases that go on to litigation. Indeed, it is curious that a high proportion—perhaps three quarters—of those that are litigated prove not to have substance, while large numbers of potential clinical negligence claims are not even pursued.
I am grateful to the hon. Gentleman for giving way, and for his comments about my noble Friends in another place; as he says, we have worked closely together.
May I ask about legal aid, which he just mentioned? The Secretary of State effectively said, “Well, people can go to court anyway,” but is it the hon. Gentleman’s judgment that people who apply for legal aid opt for negligence? Once NHS redress is up and running, the legal aid people will say, “Well, there is a redress scheme and we aren’t going to spend taxpayers’ money on legal aid,” so people on low incomes will not have the option of going to court.
That may be true, and I accept the hon. Gentleman’s point. I find it astonishing that the Secretary of State did not talk about legal aid, because the problems of legal aid go to the heart of the difficulties that we are experiencing with the clinical negligence system. The Government’s apparent desire to avoid that fact is evidence that they have not thought through the policy implications of dealing with the legal aid problems.
Let us run through some of those problems. Legal aid does not ensure access to justice for deserving cases, as most people are not eligible. Instead, it provides access to lawyers for an eligible minority. Legal aid lacks independence. Funding is granted on the advice of the applicant’s lawyer, so there is a clear conflict of interest that may encourage over-optimistic advice, to put it kindly, or speculative litigation, putting it less kindly. Legal aid lacks fairness. Successful defendants cannot recover legal costs. Legal aid puts the claimant in a no-lose position and the health service defendant in a no-win position. It may be cheaper to settle a claim regardless of merit, to avoid irrecoverable legal costs—a practice known as legal aid blackmail.
The Secretary of State referred to the legal costs that the NHS has incurred, and of course the structure of legal aid is one of the reasons why the legal costs that the NHS has had to meet have been so great. Legal aid lacks accountability. Funding decisions involving public money are privileged and confidential, and are not subject to public scrutiny. As a Member of Parliament, I have sought to question some of the decisions made by the Legal Services Commission about the people to whom it grants legal aid. Frankly, that is an impenetrable question. The fact that it has met and made a decision is regarded by the LSC as justification enough.
Most clinical negligence cases are legally aided, but the great majority of households do not qualify for legal aid. Is it the case that clinical negligence harms only people eligible for legal aid? Of course not. It is not a matter of cases not being brought because they lack merit; they are not brought because there is no legal aid available. The record of legally aided claims involving health care is dismal, as I said. In some instances, that has promoted unsubstantiated health claims and scares based on junk science, threatening the health of the nation’s children. Too often, lawyers are the only beneficiaries of publicly funded legal action. Scarce resources are diverted from patient care to lawyers’ fees, all in the name of justice and all paid for by the taxpayer.
The solution to the problem of clinical negligence litigation lies in the realm of funding. Legal aid has brought relief to many people, but it is a popular misconception to equate legal aid with access to justice. Access to justice is not best delivered by the legal aid system. There is a better way to do that; before the election, we said that we needed wider proposals to reform clinical negligence—I am sure we will return to that. The reforms in the Bill are consistent with a wider reform, but no one should believe that they are sufficient in themselves. However, it is best to confine ourselves to the scope of the Bill, rather than try to debate the wider question of the way in which legal aid can be reformed.
As the Secretary of State mentioned, the origins of the Bill lie in the chief medical officer’s report, “Making Amends”, which considered the problems highlighted by “Options for Change”. The underlying policy of “Making Amends” was to move away from a tort-based culture. It stated that:
“tort sits so uncomfortably in an NHS with an ethos of equity”.
“move the role of tort from its current central position to the outer perimeter of the NHS.”
However, the report paid scant regard to the problems of legal aid. The Bill recognises and exposes the failure of “Making Amends”. It is not based on “Making Amends”. Instead of moving away from tort, the Bill makes tort its centrepiece, in clear contradiction of “Making Amends”.
That report by Liam Donaldson contained 19 recommendations, of which 18 are not addressed by the Bill. Indeed, the well-intentioned but ill-considered recommendation No. 2, proposing a no-fault compensation scheme for brain-damaged babies, was dropped last summer. The Bill gives effect only to recommendation No. 1, not in the way that “Making Amends” proposed, but at least by introducing an NHS redress scheme to provide investigation when things go wrong, remedial treatment, rehabilitation and care where needed, explanations and apologies, and financial compensation in certain circumstances. It applies where there is a qualifying liability in tort—that is, a breach of duty causing injury. This is the condition precedent to qualify for the scheme. It is much narrower in scope than a complaint, which may or may not involve negligence.
The Bill is ambitious in its scope. It proposes a package of remedies—a one-stop shop providing different remedies. It represents enabling legislation. The detail will be set out in secondary legislation. It provides a skeleton framework of duties and powers to give effect to the underlying policies, and it is the Government’s underlying policy that gives rise to our concerns.
The Government’s proposal seems to be mainly concerned with compensation, as it can apply only where there is a qualifying liability in tort. It appears to be conceived as an in-house settlement-making process, rather than as an independent judicial investigative process. Liability is to be assessed by the National Health Service Litigation Authority, rather than determined by any independent tribunal. Compensation is to be offered by the NHSLA, rather than awarded by any independent person. We should remember that the NHSLA is the body that carries the liability on behalf of scheme members, so it has a vested interest in the matter.
Any offers arising from the process are to be made on a “without prejudice” basis. Although facts or some degree of fault may be disclosed, if the claimant—the patient—does not take up an offer and reach a settlement, that disclosure cannot be used as the basis for a claim, and no admission of liability can be derived from it. Offers are to be accepted or rejected on a “take it or leave it” basis.
The situation in clinical negligence is bad enough, but the Bill as originally drafted would have made matters worse. The response of claimants to such a process may well be to treat it as partial, and as no more than a preliminary stage to legal action. Far from being an alternative to litigation, it would, by virtue of its invitation to claim, have generated more litigation, not less.
The concept of a one-stop shop is superficially attractive, but on closer inspection the Bill was found to be fraught with problems. It sought to combine conflicting functions and it confused fact finding with fault finding, an inquisitorial process with an adversarial process, and open proceedings with “without prejudice” proceedings.
We have consulted widely in formulating our alternative approach, which is now reflected in the Bill. The Government’s willingness to tackle the problems of clinical negligence was broadly welcomed. However, there was a general recognition that the original Bill was fundamentally flawed, and represented a wasted opportunity. In summary, there was a single constant theme: the need for open, independent, fact-finding investigation. The Bill as amended in their lordships’ House reflects that simple point. The amendments have given the Bill functional coherence, and place the interests and priorities of patients at its core.
Our first key concern has been the need for independent investigation. Independence is a basic principle of natural justice, enshrined in the rule against bias—that no man may be a judge in his own cause. The investigation should not be concerned with issues of legal liability. We should separate fact finding from fault finding. There is ample judicial authority for that dichotomy. The Secretary of State spoke about two separate processes, and logically they are two processes. Fact finding and fault finding will be distinct aspects of any investigation. We want the fact finding to be conducted by NHS redress investigators as an inquisitorial process. The investigation may provide the basis for an explanation, apology, lessons to be learned and, where appropriate, an assessment of civil liability and an offer to be made.
The Government’s proposals would have had the NHS investigating itself as judge and jury. The Constitutional Affairs Committee report stated:
“We are concerned that if the organisation which is responsible for defending trusts and hospitals is also charged with running the scheme, there may be a perception (whatever the reality) of a conflict of interest.”
We need the reality and the perception to be understood. Justice must not only be done but must be seen to be done.
Secondly, we need an open procedure. Findings of fact should be robust and capable of use apart from the redress scheme, which means that the proceedings leading up to the offer should be either without prejudice or privileged. An investigative process can hardly be described as transparent if its findings are not open, which is a consequence of the Government’s proposal to mix up fact finding with fault finding. The Government are treating facts disclosed during an investigation as if those facts were part of a fault-finding process, in which case their disclosure would be an admission of liability, whereas disclosing the facts is an essential part of the process of winning the patient’s confidence in the redress scheme. If an offer is rejected, the findings of the investigation cannot be used for any compensation claim outside the redress scheme under the Government’s proposals. Our proposal would change that state of affairs, and rightly so. I will not detain the House by explaining our proposal in detail, but it follows the precedent set out in the Inquiries Act 2005.
Thirdly, we want the scheme to reflect patients’ priorities. When something goes wrong, patients want an explanation and an assurance that lessons have been learned, and an open and independent fact-finding investigation reflects that priority. Compensation does not necessarily rank highly in patients’ expectation of the role of a redress scheme, but the Government scheme is geared to compensation and does not allow for the possibility that establishing facts and learning lessons is sufficient in itself.
When compensation is required, we want it to be fair. Our proposal provides a range of options: patients can accept an offer; they can negotiate or mediate a settlement; they can enter a Resolve-style scheme; and, as must always be the case, the courts are available as a last resort. Different cases may require different procedures, and choice and flexibility should be available for patients. The fact-finding investigation that we propose would provide patients with an understanding of the basis of any claim, and a Mackenzie friend would be available to provide support and guidance.
As I have said, the health service has always had the power to settle claims without resort to litigation, and it has done so on innumerable occasions in the past. Early settlement by defendants in suitable cases represents good practice and reduces costs—it is what the health service should be doing anyway. To characterise the Government’s proposed redress scheme as providing an “alternative to litigation” is misleading and something of a gimmick. The same is true of the offer of treatment by the NHS as a consequence of the redress scheme. Remedial treatment which is clinically necessary is an entitlement of patients, and it should not depend on the outcome of any redress scheme.
The Secretary of State has said that the introduction of an independent fact-finding scheme would cost up to £41 million. Frankly, we cannot see how the Government have arrived at that figure. The investigation of cases represents a fixed cost, whether it is conducted under the system currently in the Bill or under the Government’s original proposal. We do not envisage a separate bureaucracy undertaking the investigations, which should be overseen, directed and conducted by an independent person under the auspices of the Healthcare Commission.
On 28 March 2006, the former Minister of State sought to explain how the figure of £41 million was derived. She said that £41 million was the upper cost estimate and that the lower limit is £14.5 million. She also said that the funds would be for investigating clinical negligence, but that is wrong, because our proposals cover an investigation of the facts, not fault. The cost is not additional, but it is an inevitable cost, because there has to be an investigation whether by the NHS Litigation Authority or by independent investigators.
The Government’s estimate of the number of cases involved is between 2,200 and 19,000—a tenfold range. Again, the Government’s number crunching is fanciful.
Does my hon. Friend agree that if independence is instilled in the fact-finding part of this process, people will be less likely to seek financial compensation when what they most seek is an apology and a proper finding of the facts, and that that will save the NHS money, as well as giving confidence to patients who have been wronged by the system?
Yes, that is right. I think that we will find, in many cases, that a more open scheme which is perceived to be independent will forestall litigation to a greater extent than it gives rise to it. The Government anticipate that there will be an increase in the number of claims. Quite a number of claims may well go through the NHS redress scheme, but we should not treat that as a fault in the scheme. We want to ensure that people who currently may not have access to compensation for clinical negligence should, in some cases, have such access, but we do not want large numbers of people to pursue litigation. My hon. Friend is right to say that the lack of independence in the Government’s proposals will cause many people to feel that they want their day in court. The only way that they will get the independent scrutiny and judgment for which they are looking will be to go to court. I am sure that we want to avoid that happening.
I am afraid that the Government’s figures have been wrong before. The Constitutional Affairs Committee was pretty sceptical about the Government in its report, which says in paragraph 94:
“It is surprising that the Department of Health has brought forward an ambitious Redress Scheme, without setting out in detail how it will be run...We were informed that contact had not been made, either with lawyers or medical experts, about whether they would work for fixed fees and to the timetables envisaged. These lapses appear to threaten the viability and effectiveness of the scheme.”
It is curious that the Government appeared to be completely unaware of, or were speculating about, the cost of their own scheme, yet absolutely precise, to the nearest £1 million, about the cost of an alternative. As the Committee made clear, there is little reason to accept the economic forecasts of the Department of Health, which has just been plucking figures out of the air.
Our proposals would put patients, not the health service, at the centre of the redress process. By confining the investigation of a case to fact finding by an independent process, and separating fault finding, we largely avoid the problems of the Government’s proposals. Patients’ interests are safeguarded by that independence.
We do not pretend that the redress scheme provides an alternative to litigation, as defendants ought to settle cases without resorting to litigation anyway, where possible. We should not underestimate their wish to do that. I well remember constituents who wanted the truth and an apology, but got neither and so went to court. Their cases needed independent investigation. Our proposals reflect such patient expectations and priorities, comply with the principles of natural justice, and are economically prudent and fair in application. They would widen access to justice; they do not rely simply on the legal aid process to ensure access to justice. They would simplify an overcomplicated and confused Government approach. In short, we believe that our proposals would allow patients to have access to a potentially fairer and better result.
No scheme will be perfect when dealing with such a complex subject, but we believe that our proposals—by which I mean the proposals supported by all Opposition Members—are a substantial improvement on the original Bill as presented in another place last October. I therefore commend the Bill to the House.
I start by welcoming my hon. Friend the Member for Leigh (Andy Burnham) to his relatively new position in the Department of Health. As I was coming here, it occurred to me that when he became the Minister with responsibility for identity cards, ID cards were the screaming adolescent of British politics. A relatively short time later, he leaves them sleeping gently like a baby, if not ticking like a time bomb. We can only hope that he works the same magic on the NHS.
I declare an interest as a trustee of the patients’ charity Action against Medical Accidents, which is generally known as AvMA. For more than 20 years, it has held the mantle for patient safety and justice for people who have been affected by medical accidents in this country. It is fair to say that, without AvMA’s influence, patient safety would not be as high on the agenda as it is today. We might well not be holding the debate or have such a Bill without it. I hope that Ministers agree that AvMA has a constructive, well- informed and coherent input into policy and that there is much to be learned from the patient’s perspective. I know that other hon. Members will have found the AvMA briefing on the Bill as valuable as I have.
AvMA and other patient groups have long argued that there should be a speedier, less stressful way of providing redress in the widest sense for people who have been caused avoidable harm. Legal action remains a vital safety net and will still be necessary in more complex and serious cases, but it is not popular with injured patients and should be a last resort. AvMA has campaigned for years for dovetailing the complaints procedure with a process of awarding compensation, together with full explanations, apologies and assurances that patient safety lessons will be implemented to make things safer for others. The Bill intends to deliver most of that. The measure is broadly good and hon. Members of all parties want to support it and help the Government make it work. So far, so good.
We have consensus, but there is an opportunity for the Bill to be a universally good news measure. We must ask ourselves why, when there is such consensus on the Bill’s stated aims, we do not have the positive response for which we might have hoped. Why do not AvMA and a broad coalition of patient groups welcome the Bill with unreserved jubilation? Although the aims are widely welcome, there is widespread concern about its implications as drafted.
The joint statement that many hon. Members will have seen is from groups including the Patients Association, Which?, the National Consumer Council, Help the Aged and Mind. Their core points are: there should be an independent means of deciding on merits; advice and assistance should be provided during the scheme; and medical and legal expertise should be available during the process, not simply at the end. There also need to be more robust measures in place to learn lessons and take action to improve patient safety. Those requests do not seem unreasonable given how coherently they sit with the Bill’s stated aims and the Government’s intentions, which no one doubts are sincere.
Many of us would like the reforms to go further, as the hon. Member for South Cambridgeshire (Mr. Lansley) said, in line with the chief medical officer’s recommendations in “Making Amends”, in which he called for a fairer test for eligibility than the Bolam test. That test, with tort at its centre, is not the best on which to base the Bill from our current position. An avoidability test, which would widen the definition of liability, similar to what has been done in, for example, Denmark, is more in tune with a culture that is less about focusing on apportioning individual blame and more about identifying the root causes of errors, which are usually systemic. That test might have provided us not only with the answer to whether redress should be provided but what risk management measures should be put in place—all through one investigation. That can be done.
Perhaps the time is not yet right for such a radical reform, notwithstanding its merits and compatibility with what the Government say that they are trying to do, but perhaps we could revert to it once the initial scheme has bedded down a little. We are told that we will need new legislation for primary care anyway and we are repeatedly told to look forward to endless streams of secondary legislation. I would welcome the Minister’s comments on whether some sort of avoidability test could be the subject of future legislation.
The issue of independence in determining eligibility for redress has been a recurrent theme in our debate today and in all the previous debates on the Bill in the other place and elsewhere. Many stakeholders would have preferred the merits of negligence cases to be investigated by a completely independent organisation. The Government have explained that the intention is to change the culture of the NHS, so that it learns to recognise its errors, investigate them fully and make fair offers of redress, without the need for the rigour of an independent process. That is a laudable aim, but the way to change the culture is to change the rules. Realistically, one cannot expect the culture to change and the rules to follow. It has to be the other way around.
There are real difficulties with how long change would take and how practical it would be. The problem is that at present we are stuck with the Bolam test, which is designed for the tort approach and assumes specialist legal representation for the claimant and the case being examined with the full rigour and independence of the courts. It would also be used in a scheme in which the NHS, the would-be defendant, sat in judgment on itself, and no specialist legal representation would be available to empower the patient to make their case effectively on what is a very technical legal test.
As Ministers have said, the Bill does provide for some legal advice and some
“assistance for individuals seeking redress under the scheme”.
That advice, however, is available only at the end of the process and would not enable claimants to influence the outcome of the decision on the offer of redress. That is a fundamental point.
The assistance to those seeking redress is described in the guidance as
“PALS or ICAS type arrangements”.
We all have tremendous respect for the people doing worthwhile work in both those services, but neither is appropriate for empowering a patient to influence the outcome of an investigation based on the highly technical, legalistic and tort-based Bolam test. Patient advisory liaison services are not independent, but part of the customer care arrangements in NHS trusts. The Independent Complaints Advocacy Service is designed to help patients navigate the NHS complaints procedure. Neither has the legal and medical expertise available to empower patients to influence such a legalistic test, nor would it be appropriate for them to do so without radically changing the purpose for which they are designed.
This is not a bad Bill. It is definitely moving in the right direction. It is at least possible that the scheme could be run so that it would go a long way to address the main concerns that have been articulated by interested groups such as AvMA. The Government amendments in the Lords allow for the possibility of legal advice being available during, rather than just at the end of, the process. As I said in an intervention, the previous Minister said in her letter to the Constitutional Affairs Committee that stakeholders will be consulted, during consideration of the secondary legislation, about the circumstances in which legal advice could be provided at earlier stages of the scheme. The question is whether such fundamental provisions, which could radically alter the nature of the redress scheme—especially the way in which it is perceived by stakeholders and its capacity to enjoy public confidence—should be left to the vagaries of future consultation on secondary legislation. I suggest not. We are always being told that our requests will be met by the regulations, but Ministers have already conceded that the Bill should contain such powers. I therefore strongly urge Ministers to consider strengthening the provisions in Committee to make more legal representation available during the process.
It seems to me, and to AvMA, that the most practical way forward would be to draw on the experience of the resolve pilot in England, which has been favourably evaluated, and the speedy resolution pilot in Wales. In those pilots, cases in which liability had not already been admitted and an offer of settlement made—disputed cases, in other words—had their merits determined on the basis of independent medical experts’ reports. The experts had been commissioned jointly by the NHS and a specialist solicitor acting for the patient. There is already evidence that that approach works, and it is much cheaper than litigation. The solicitors are paid a relatively modest success fee only if the case receives a positive report on eligibility from independent experts, and the mechanism would be needed only if the NHS had not already recognised its own negligence and sought to settle the case.
The more successful we become in changing the culture of the NHS and improving its capacity to investigate itself, the less we will need such a safety net. Will the Minister at least confirm that such an approach is consistent with what he has in mind? It is hard to see how justice will be done in the majority of cases, in the short term at least, without such a safety net. It is a fundamental fact that the vast majority of clinical negligence cases that are settled in favour of the claimant have already been investigated and stubbornly defended by the NHS. It is as simple as that. Almost all of them have been resolutely, and wrongly, defended by an NHS that was not equipped to investigate itself.
That culture needs to change, but I say that we should change the rules and let the culture follow. It will take years and a considerable amount of investment to turn the culture around, and to go ahead with an NHS redress scheme that does not provide for an independent means of determining eligibility in contested cases would mean that many deserving cases would not get the redress that they deserve and that the Government and all of us want. It will also lead to a lack of confidence. It is notable that the Government said of the Legal Services Bill, which is before the House at the moment, that the office for legal complaints
“will not delegate the handling of consumer complaints to Approved Regulators as set out in the White Paper. There must be no appearance of professionals judging their own”.
That is right; it is obvious that they should not handle those complaints. Even if they were extremely successful at it—and there is clear evidence that they are not—the appearance would be bound to alienate the vast majority of lay people, who would simply not believe that they were getting justice.
I am interested in what my hon. Friend is saying, but I must caution him. He is right to say that we must change the culture, but in my time—my experience goes back five years, because it is five years since I stopped practising as a lawyer—I made hundreds, if not thousands, of negligence claims against the NHS. All too often, the problem was that the solicitors from outside the health service who were engaged on contracts by the NHS were absolute rubbish. They did not know what they were doing, they were far too slow, they incurred far too many costs on behalf of the NHS, and the cases often folded at the last minute. That culture needs to be changed.
Far be it from me to argue with my hon. Friend, with all his years of experience of the incompetence of lawyers.
I genuinely believe that this is a good Bill, and that it represents a sincere effort to bring justice and redress to people who profoundly feel the lack of them. At all times, we all have constituents who suffer from this, and we all know how real it is.
I firmly believe that the Government are serious about doing this. I equally firmly believe that, although the direction of travel is right, we must ensure that this long-awaited initiative enjoys more widespread confidence than it will achieve as drafted. It would be a terrible shame if this opportunity were wasted. We might simply need to be clearer in the Bill about the nature of the provisions that the Government already intend to put in place through secondary legislation. At least some clearer assurances about what is intended would go some way to address the concerns that have been expressed.
I feel sure that if we went the extra mile to address those concerns, we would have a genuinely historic milestone of a Bill in terms of changing how ordinary people experience their interface with the huge, great, terrifying medico-legal establishment. I would be interested to hear what the Minister has to say about those points, but I urge the Government to be flexible in Committee and not to waste the opportunity presented by what could be a very good Bill.
I, too, am pleased to welcome the Bill in its revised form. I want to support most of, if not all, the remarks made by the Conservative spokesman, the hon. Member for South Cambridgeshire (Mr. Lansley), because we worked jointly in the House of Lords on the Bill and it would be a great shame if the Government did not take note of the changes that were achieved there. Had the Bill arrived in the House of Commons first, however, the welcome would have been rather more muted. While no one can doubt the intention behind it, this is probably one of those classic cases in which the Prime Minister will wish in retrospect he had been more bold.
As has been said, we face a Bill that deals with only one of the 19 recommendations made by Liam Donaldson, so a huge opportunity has been missed. The Bill also deals only with the secondary healthcare sector. Again, we have an ideal opportunity for some joined-up thinking throughout the health service. As it stands, the Bill is welcome, but we seem to be tinkering at the edges.
Did my hon. Friend notice that the Secretary of State seemed to exclude the possibility of extension to the primary care sector, whereas the Government’s response to the Constitutional Affairs Committee report indicated that the scheme would be evaluated after three years and that, at that stage, the possibility of extending beyond the hospital sector would be considered? There seems to be some confusion in the Department’s thinking on whether the scheme will ever be extended beyond hospitals.
I thank my right hon. Friend for pointing that out. I had not noticed it, and I hope that the Minister can help us in his winding-up speech.
I had a quick look at the Bill to see whether I might have to declare an interest, as I am on the practising register of the Royal Pharmaceutical Society. That does not seem to be the case, but it is worth pointing out at this stage that when I worked in the health service the culture was important. That was alluded to by the hon. Member for Birmingham, Erdington (Mr. Simon). I shall refer to an example of how it can operate.
I worked for a company that decided to have an open, no-blame culture, and there was great encouragement that any error, however small, should be recorded. Those errors were shared throughout the group. As a result, it was common to see one or two errors that were not necessarily life threatening, but that could be prevented. Steps were taken throughout the company to ensure that they did not happen again. Exactly the same thing could happen in the NHS as a result of more information sharing.
The National Patient Safety Agency is trying hard to encourage a culture of no blame and openness, but there are fears that the legislation as drafted might not necessarily further those interests owing to the fact that everything is in-house. The Secretary of State argued the opposite, but it remains to be seen how the system works in practice.
Despite talk of a litigation culture, evidence shows that the number of claims is falling slightly. In 2004-05 there were 5,609, while in 2003-04 there were 6,251. However, it is dangerous to take a year out of context. The figures for those two years are widely cited, but the background reveals a steady increase in the number of claims up to that point.
It should be borne in mind that we live in a society in which there is sometimes a failure to accept human error. Medicine is a complex subject, staff are only human, and mistakes sadly happen. A friend of mine trained as a doctor. On the first day, the trainees were sat down and told that at some stage during their medical careers they would kill someone. If they could not cope with that thought, they should leave there and then. It was not suggested that they would kill anyone intentionally—the Shipmans of this world are, thankfully, rare—but mistakes happen for a number of reasons, such as tiredness, pressure, attempts to deal with enough patients to meet the latest Government target, and even ill-thought-through protocols. Often mistakes are due to a combination of unfortunate events: an error can be compounded by other happenings.
It is important for us to be able to identify what is going wrong. The figures are stark. In 2005, the National Audit Office reported 974,000 incidents and near-misses, which did not include hospital-acquired infections. Only a proportion of those cases were due to negligence, and we could argue all day about what the proportion was, but some would say that it could be as high as 25 per cent. The number of claims that have been made suggests that that is the tip of the iceberg.
It is good that patients will have an automatic right to come forward, but the $64,000 question is whether the number will be greater than predicted, and how that would affect the pot of money available. As has been said today, an unwillingness to own up early and instigate remedial action promptly is often a cause of prolonged correspondence with Members of Parliament, patients and hospital authorities. A change in the culture would save much time and effort.
Many Members have identified a major problem with the original Bill: the fact that the NHS Litigation Authority, which is not regarded as independent, will oversee the process. As has been pointed out, that must be done by an independent body if justice is to be not just done but seen to be done. That is the crux of the argument.
The actual procedure, as outlined by the Government, is fair enough. It is important to determine the facts behind a claim, to decide whether an error was indeed made, and to assess the seriousness of such an error. Above all, it is important for the patient, or the patient’s relatives, to be given an explanation as soon as possible, because any delay gives the impression of a cover-up. Finally, it must be established whether the error constitutes a qualifying liability, and a value must be put on any resulting compensation. The problem is that if the NHS is involved at every stage, it will become judge and jury dealing with its own case.
Does the hon. Lady agree that the real issue is perception? If people perceive that the system is too much in the hands of those whom they see as judge and jury, although we and the Minister may know that they are entirely independent, that will defeat the whole object. We must ensure that, objectively, people perceive the system to be independent.
There are those who say that perception is the only true reality, but I do not think that this is the place for that discussion today. To develop the right hon. Gentleman’s point, one of the results of the in-depth investigation following the Shipman saga is that all the professional bodies now have to have a huge lay component. The logic is that it cannot be right that a profession is seen to oversee itself all the time. Balance must be provided by outsiders who can give another perspective. That argument is related to what is going on here. If there is a mistake and a cover-up, will we be saying further down the track that we must have more independent scrutiny? Clearly, we cannot have a single lay person investigating the health service—that point was made earlier—because they would have to come to terms with and try to understand all the procedures, but perhaps there is an argument for considering a mixture of both in any investigative panel that is set up.
Clearly, the fact finding should be independent. Staff and patients need to be sure how the problem arose and what will change as a result of the lessons learned. Again, the point has been well made that that does not need legislation; it should be happening already. The sadness is that, although in many trusts it is happening, in some trusts—I see it because I deal with a number of different hospital trusts—it is much more difficult to get that openness and that willingness to admit that there has been a mistake.
As my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith) has pointed out, legal advice will not be available until quite late in the procedure. Is there not a possibility that a patient will be offered a certain amount of compensation, decide that that is not enough, try to obtain legal advice, but because there is an award, find that the difference is deemed not to be worth funding? Therefore the patient will be stuck between a rock and a hard place. They may have been one of the fortunate few who could access legal services, but their claim will not succeed because of the offer on the table. That needs to be looked at.
I would be grateful if the Minister would clarify the issue around the capping of the amount. I believe that the Secretary of State said earlier that an attempt would be made to ensure that any awards were in line with those in the civil courts. That may be the aim now, but if there are future financial pressures can we be reassured that that aim will remain? Will that be enshrined in legislation? We would seek to avoid a situation where patients think, “I am not sure I can get much compensation. There seems to be a history of people thinking they could get more if they went through the civil courts, so should I go to the ambulance-chaser type of solicitor on a no win, no fee basis and risk that?” That is something that the Bill is trying to avoid. We should ensure when we draft legislation that we avoid that eventuality.
I want to turn to the secondary care aspect. Again, there have been some changes to the Bill in the other place, but there is a move to deliver more care outside hospital and it makes no sense to have an NHS Bill that does not deal with all aspects of the NHS. The Secretary of State said that GPs were not included because they are independent, but they are not the only deliverers of primary care. Not to recognise that fact ignores the many nurses, pharmacists, therapists and others who work in the primary care sector who may not be covered in the way that she described. It would be helpful, then, if the Minister elaborated on the point made by my hon. Friend the Member for Northavon (Steve Webb) about the review of primary care.
Is not there an inconsistency between the Secretary of State saying that GPs, because they are independent contractors, will not be included, while independent sector treatment centres will fall within the scope of the scheme? If they are independent contractors to the NHS, what is the difference between them and GPs as independent contractors?
My hon. Friend makes a very good point, which I hope the Minister will clarify. The Bill is clearly well meaning, and we will take pleasure in supporting it in its proper form. I can assure the Secretary of State, however, that we shall work hard on keeping that provision.
How will the scheme be scrutinised? We have had reassurances that the ombudsman will be arbiter, and that all will therefore be well. Unfortunately, this House has seen rather too many examples in recent months of cases in which the Government have frankly ignored the advice of various ombudsmen. That is not reassuring, and it would be useful to know how the scheme will be assessed and what notice will be taken of any future recommendation by the ombudsman.
It is a shame that the Bill does not go much further. It is, unfortunately, a rather half-hearted attempt to do something well meant and in the right direction. We very much hope to improve it in Committee.
I am glad that the Government are introducing an important Bill that I strongly support, particularly as regards the implications for Wales.
Many of us have dealt with patients, or relatives of patients, whose treatment under the national health service has gone wrong. Those are probably among our saddest cases, and some have gone on for many years. It has been difficult for patients and relatives to be able to move on and to close off on that part of their lives.
The way the system works at the moment militates against openness in the NHS, and the process is very protracted. That means that relatives cannot move on. It is also draining for NHS resources and staff, emotionally speaking. The costs of bringing cases are often disproportionate to the compensation granted. Reform was part of Labour’s manifesto, and I am pleased that it is happening.
I shall speak specifically about the Bill’s effect on Wales. It applies to England only, except for clause 17, which contains a framework power for the Welsh Assembly. The clause has attracted quite a bit of debate, mainly about constitutional issues. It is one of the first examples of the enabling powers given to the Assembly to enable the Assembly to determine its own policy. It is in line with proposals in the White Paper “Better Governance for Wales” and with the general progress of devolution, and I strongly welcome it.
The power conferred by clause 17 on the Welsh Assembly does not contain the limitations found in relation to England. It is not limited to hospital services only, although the Secretary of State has expanded on that point today; nor is it limited only to health professionals or specified bodies. The proposals that the Welsh Assembly comes up with will need to fit into the structure and general direction of the NHS in Wales, which has been going in a slightly different direction from that in England. For example, Wales does not have primary care trusts. Local health boards perform the functions of PCTs. There are no foundation hospitals in Wales. There are differences in commissioning arrangements. Specialist services are commissioned by Health Commission Wales. Community health councils have been retained and strengthened and have a duty to provide advocacy services for local people who want to make complaints about the NHS. The system for handling clinical negligence claims in Wales is fundamentally different from that in England. The NHS Litigation Authority is an England-only special health authority. So the whole scene is very different in Wales, and it is important that the proposals that come from Wales fit the particular circumstances of Wales.
My hon. Friend the Member for Birmingham, Erdington (Mr. Simon) referred to the pilot scheme that has taken place in Wales. The Assembly launched a new pilot scheme in February 2005 to deal with clinical negligence claims against NHS trusts in Wales. That scheme covers figures between £5,000 and £15,000 and is called the speedy resolution scheme, which is very different from the traditional litigation process. Its aim is to be consensual, using a single joint expert, to which my hon. Friend has already referred. It uses a fixed timetable and has fixed fees for all legal and medical professionals. There is no court involvement, and there are certain specific conditions for joining the scheme.
We heard some discussion earlier of the length of time that such cases take; the speedy resolution scheme has a fixed timetable of 61 weeks from the date of acceptance to the outcome in the most complex cases, and it anticipated that the majority of cases will be completed much more quickly than that. The scheme also aims to provide an explanation to patients. There will be an independent evaluation of the scheme. The reason why the framework powers in the Bill are so wide is to take account of the current different health arrangements in Wales and the outcome of the pilot scheme. It is important that the Welsh Assembly comes up with no proposal until that scheme has been evaluated and that we can propose a solution in Wales that best fits the Welsh situation. Of course, any scheme that is proposed will operate alongside the current complaints arrangements in Wales.
Clause 17 will allow the Assembly to introduce wider arrangements. The primary care sector—GPs and other primary care practitioners—could be included in the scope of the scheme. The Assembly wants the power to do that laid down now, so that it need not return to Parliament at a later stage, when it has decided on the way it wishes to proceed. Obviously, any proposal to bring primary as well as secondary care into the scheme will involve a lot of consultation, but at least the Assembly could do that.
I wanted to raise the importance of clause 17 for Wales. It will allow the Welsh Assembly to find Welsh solutions to Welsh issues. No decision has yet been made in Wales about how the redress scheme will operate, but I understand that the Assembly wants new legislative powers, rather than just plugging the existing gaps in the process. The scope of clause 17 is wide enough to include primary as well as secondary care and to extend the arrangements beyond what the Assembly does at the moment.
I very much welcome the Bill. Although only clause 17 will apply to Wales, I am pleased that it will give the power to the Assembly to develop a specific scheme for Wales.
I am glad to follow the hon. Member for Cardiff, North (Julie Morgan), who is a member of the Constitutional Affairs Committee, although she was not when it produced its first report on this subject.
Before I come to the Committee’s report, I want to refer to the point about cross-border problems that emerged during the Secretary of State’s speech. I recognise that it is a difficult and complicated matter. I want to be quite clear what the situation is in respect of my constituents who obtain treatment in hospitals in Scotland—the same thing would apply on the English side of the Welsh border—which are usually the nearest hospitals for those living in the Berwick area, whether they use the Borders general hospital or the two or three major hospitals in Edinburgh. Usually the treatment arises because people choose to go to that particular hospital, but with the support of the health authority on the English side of the border. In some cases, the health authority may actively encourage people to make that choice.
I can see that the situation is complicated because the hospital is in Scotland. An issue that would be tort in England would arise under Scots law in Scotland. The circumstances would be different. Am I right in supposing that whether the scheme applies will depend on whether the health authority on the English side can be thought to be responsible in some way for the unsatisfactory outcome? That situation would be rather limiting and a constituent would probably be much better placed taking legal action in Scotland without the benefit of the scheme. The Minister may well reply that the scheme is simply an addition to the legal rights that people have on each side of the border. However, I would not want to create a perverse incentive whereby patients were discouraged from going to an appropriate hospital because of the existence of different schemes on either side of the border.
I am anxious, first, to clarify the situation, and secondly, to ensure that, in particular, the health authority on the English side will not say, “We had better not let patients go to Scottish hospitals because we might be pursued over our aspect of the responsibility under the NHS redress scheme and we might avoid that if the whole thing was dealt with on the English side.” I hope that, in his response, the Minister can give me some initial guidance on that and that, if necessary, the matter will be followed up fairly quickly—before the Bill gets much further—by correspondence clarifying the situation. The slight perversity of the situation is that patients on the Scottish side of the border who come to Berwick for hospital treatment—often because they go to a general practitioner in Berwick anyway—will definitely benefit from the scheme, as I understand it. There is no harm in that, but it indicates the paradoxes and complexities that will arise.
I want to deal now with the reports of the Constitutional Affairs Committee—the third report of 2005-06 on compensation culture, in which there is a substantial section about the Bill, and the fifth report on the Bill itself, which is, in effect, a report of the response from the right hon. Member for Liverpool, Wavertree (Jane Kennedy), who was then Minister of State with responsibility for quality and patient safety in the Department of Health. She used her response to clarify a number of issues and we commented briefly on those in the fifth report.
Many of the issues in the third report will come up again on Thursday when we debate the Compensation Bill and I hope to refer to those matters then. The report addresses issues relating to the so-called compensation culture, which is sometimes adduced in respect of the Bill and the NHS generally. It was my Committee’s conclusion that there is not a compensation culture that is driven by an increase in personal injury claims. The evidence does not point to that. There are many problems in relation to excess risk aversion in many parts of the public sector and elsewhere, but they may be driven by a whole lot of other factors, rather than by an actual increase in personal injury litigation. There is considerable confusion in the media on that point.
In looking at the NHS Redress Bill, we raised a number of issues and I want to touch on some of them. We referred particularly to the total lack of detail in the Bill and its heavy dependence on secondary legislation and on non-statutory schemes to fill out that secondary legislation. That is a far from satisfactory way of legislating. It leaves the House making quite major decisions without knowing how they will work in practice and, in this case, without seeing even the draft secondary legislation that would be involved. It is quite a dangerous trend in Government to create framework legislation—we have seen it in many other areas too—that leaves the House making decisions of vague general principle and being able to deal with quite important aspects of the legislation only by way of orders. As hon. Members must be aware, even the affirmative procedure is profoundly unsatisfactory if a specific defect is found, but Members do not want to vote out the order completely because they do not want to prevent a scheme or a piece of legislation from coming into operation. The negative procedure is wholly inadequate in many such instances because hon. Members are unable even to cast a vote on measures, let alone secure the amendment of something that they consider to be fundamentally unsatisfactory. The Committee was thus critical of such a lack of detail.
The Committee was presented with no compelling evidence that doctors and lawyers will be prepared to work for fixed fees and was not told what those fixed fees might be. The Government’s response made reference to fixed fees payable by the Legal Services Commission, but those fees are likely to be lower than those payable for private work. It is not apparent whether the Department expects lawyers to work for fixed fees at LSC rates, or whether participants will be able to go only to the LSC to pursue their grievance. Reference was made earlier in the debate to the problem that will arise if the LSC effectively acts as a gatekeeper to the scheme for anyone who would be eligible for legal aid.
The fact that medical experts can be instructed jointly does not mean that they will be clearly independent. If the NHS Litigation Authority was able to identify the doctors that it wanted and also paid the bill, it would not lead to a perception of independence. In the world of personal injury litigation, there is often talk of claimant and defendant doctors being two rather different groups of people. Indeed, the same is true of claimant and defendant lawyers. We heard an interesting example from the hon. Member for Wolverhampton, South-West (Rob Marris), who is a former personal injury lawyer. He referred to all the lawyers engaged on the Department’s side as “rubbish”, which, on reflection, he might consider was a rather extreme view. However, that underlines the fact that there is a tendency for some lawyers and doctors who are called on to give evidence to be thought of as generally of use to claimants, while others are thought to be generally of use to defendant authorities. If the NHS Litigation Authority uses doctors who are thought to come into its category, it will further reduce the possibility of the proceedings being regarded as independent.
The Department acknowledges that it expects the number of claims to rise and has cited the number of additional claims a year as between 2,200 and 19,500. That suggests that the estimates are very vague, which makes the prospective cost of the scheme difficult to judge. The former Minister, the right hon. Member for Liverpool, Wavertree, made the intriguing comment that the Government could not make any predictions because that involved modelling human behaviour. However, all Government policy, including most economic policy, is based on modelling human behaviour, and fairly reliable estimates of what people might do under schemes and policies that are proposed have to be made on the basis of experience.
Given the difficulties that are facing the NHS, the Committee thought it rather odd that the Department was pretty relaxed about the possible cost of the scheme and that it could engage in such an exercise, despite the wide disparities in the cost estimates. As the hon. Member for South Cambridgeshire (Mr. Lansley) pointed out, such costs obviously represent money that is diverted from patient care, so the Department must have an understanding of the impact of its scheme on patient care costs.
It is for such reasons that the Committee recommended piloting the scheme, but we did not find the Department’s response to that idea at all compelling. The Department produced various arguments against the idea, one of which has significant relevance to another point that has come up in the debate. As I said earlier, one of the Government’s arguments against piloting was that the scheme will be evaluated after three years’ operation. However, according to their published response to our Committee’s report, one of the consequences of that evaluation might be that the Government will consider extending the scheme beyond hospital care, although that contradicts directly what the Secretary of State said in her speech. I can well understand why the Government might want to take the process forward in two stages and examine the experience of the hospital sector before even considering extending the scheme to primary care, but there is no doubt that the clear implication of their original response to the Committee was that the first three years of the scheme would be an evaluation period, after which it might be extended into the primary care sector. The Government gave that three-year evaluation as a reason not to undertake any formal piloting of the scheme. The Committee remained unconvinced about that and still thought that piloting would make sense in an area where there could be substantial cost implications.
I have referred already to the possible gatekeeper role of the Legal Services Commission. The chief medical officer, in making amends, recommended that the LSC should be able to take into account whether someone had used the NHS redress scheme when making a decision on application for legal aid. The LSC would come in at a later stage because if use had not been made of the scheme, that might be reason for refusing legal aid. If the LSC is to come in at an earlier stage—in effect, it is the body that is choosing the lawyers and determining the fees—that slightly casts doubt on whether it can properly use a refusal to use the scheme as the basis for not granting legal aid, if somebody is not satisfied and wants to go to court. There is some concern that the LSC, as a result of what the Government are now recommending, will be involved at two separate stages of the scheme.
The difficulties to which I have referred could be ironed out in various ways. They are not insuperable obstacles. I recognise the potential value to those among our constituents who have experienced the problems that the provisions in the Bill seek to address, with a scheme that could be easier to work through than a legal scheme, and one that could also satisfy their demands for clear answers, which for some constituents are more important than getting compensation.
The Committee felt that the £20,000 limit might unduly restrict the scheme. There might well be cases where someone is prepared to accept the limitations of the scheme and prepared also to accept that a case potentially justifying a larger sum could be treated under the scheme. I recognise that what the Government have produced is potentially of value. I hope that they will address some of the difficulties to which the Committee has referred and realise that in their initial responses they have either not fully done so or have generated new expectations. I hope also that in Committee they will keep very much in mind the two reports that my Committee has produced.
It is obvious that we all make mistakes in our working lives and at home. Admitting that fact is incredibly important for us. As for the NHS, it is not surprising that with more than £70 billion of taxpayers’ money being spent on that organisation, mistakes happen and people are even negligent and cause harm to others. That is why I am a firm supporter of the redress scheme—not in its present form, but in its simplified form that went to the House of Lords before amendments were made to the Bill.
I am surprised that accidents do not happen more often. As a nurse of 25 years in the NHS, I know that it is due only to the people who are dedicated and who do their jobs to the highest standard that the NHS manages to keep accidents and negligence to what I believe to be a minimum. However, if there are accidents and negligence, it is right that there is proper redress. I believe that the scheme will lead to ensuring that there is fairness and consistency in decision making. It is most important that there is faster decision making.
The scheme will encourage a willingness for members of staff to speak out when they believe that something has gone wrong.
During my training and my hon. Friend’s training, we were given the message from the very start not to say sorry.
My hon. Friend is entirely right. That was the message, sadly, that was given to us all. For some clinicians, that continues to be the message in terms of any legal action that might be forthcoming. That is why I believe that the scheme will be helpful in trying to get rid of the culture that has been spoken about in the Chamber.
I would be interested to know why the hon. Lady thinks so, given her experience. It is not clear that such an embedded culture can be changed by the Bill.
It is important to provide a fast, fair scheme that is quick to offer an apology and an explanation. If the original event is not dealt with quickly or properly, the aggrieved patient or family member is often more unhappy about the poor process than the event itself. It is therefore right to start to set things in motion and ensure that the system is fair to all. As much as I love solicitors, it is not a marvellous idea for the NHS to spend a great deal of hard-earned taxpayers’ money on them. The public are aware that accidents happen, so if someone requires a reasonable amount of compensation—and not a huge sum—it is far better that that money goes straight to them without the NHS spending very much on solicitors. That is another reason why the public generally consent to what the Bill hopes to achieve.
Is my hon. Friend aware that Action against Medical Accidents has argued that specialist help is needed because, under the existing arrangements, the vast bulk of cases that result in compensation are vigorously and stubbornly resisted until the last minute, when an overwhelming case has been built up, often using the advice and professionalism of dedicated lawyers?
I am grateful to my hon. Friend for his intervention. No one is running away with the idea that a culture of defending a case to the death or the last minute is a suitable way for the NHS to do business. I sincerely hope that we can create a different culture, because delay and prevarication in cases in which a mistake has been made or in which negligence is apparent are not good for people working in the NHS or for the public.
As I have said, it is extremely sad, but mistakes are made. Anyone who has been a member of an NHS team dealing with a mistake will know that it is extremely distressing for the doctor responsible. When I was working in Crawley hospital, a gentleman in one of the units was sadly given a massive overdose of the chemotherapy treatment that he was receiving for a serious blood disorder. There was a systemic problem, as the way in which the drug was drawn up and delivered had led to the mistake. Everyone in the team was desperately upset and the team leader, Dr. Nandi—she is an oncologist who treats people with blood disorders—worked throughout the night, having worked all day at the hospital. She brought her young children to sleep on the ward because she had to stay at the hospital to deal with the emergency. She conducted an exchange transfusion for the gentleman throughout the night. The whole team was present, including the doctor who had made the mistake and who was utterly mortified. I am glad to report that they managed to save that man’s life, which was a spectacular success considering how poorly he was and how awful the event.
It took months for that gentleman to secure redress for a genuine mistake. He did not want to denude the NHS of huge amounts of money. He wanted to make sure that the pharmacy department worked more closely with doctors on the way in which drugs were delivered, and he wanted someone to say sorry. In that case, no one was backward in coming forward. If a different system had been in place and if we had been in a position to set up an investigation that was quick to achieve a conclusion and offer an apology, he would have received his just desserts much sooner. I will always remember him as somebody who would benefit from the Bill.
I have seen the situation from both sides and I believe that the Bill will deliver confidence in the NHS. As I have said, people are not convinced that battalions of lawyers must be involved. They want an apology; they want somebody to accept that a mistake has been made. They want the NHS to recognise that sometimes people do not do the job that they should do. I have no doubt that most of the cases taken under the Bill will be genuine mistakes and things that have gone wrong, but there are, of course, times when people are negligent in their work and need to be admonished. However, we should be glad that such cases are relatively rare. I am sure that a system such as the one under discussion will expose things still further—we must have the ability to ensure that we have a clear pathway for amending mistakes and making apologies.
Let me repeat—delay is not good for the teams of staff under investigation, any more than it is for the people having to wait for their apology. Confidence will be returned to the NHS as a result of the Bill, which will create a culture of change. I have listened carefully to our debate. The contributions have been excellent and there is a willingness in the House to settle the matter and to put a scheme in place. However, the best people to tell us whether the scheme is of value are those who use it, so we should evaluate and review the scheme, without jumping in and assuming that we need to add in all sorts of independents, before we go on to make any changes. I urge the Minister to come back to the House and tell Members how people feel about the scheme and how effective it is for them. I believe that people will be happy to support a system that is simple and that creates confidence in the NHS, and I am certainly happy to do so.
It is a great pleasure to follow the hon. Member for Crawley (Laura Moffatt), who was very clinical in her analysis of the problems facing the NHS.
It is impossible to set a price on loss. Losing a mother or father, or—God forbid—a son or a daughter, is an absolute tragedy. In most cases, those losses are unavoidable, but very occasionally a mistake is made by clinicians and responsibility needs to be taken. If a person has just lost someone they loved very dearly, they are in a hugely complex emotional state. If, on top of that, they have to take on the NHS, they are David challenging Goliath. For most people, that is daunting. After all, where do they start? Most people have never embarked on legal action in their life, so what is the beginning point for them?
One problem, which has been clearly identified in the debate, stems from the fact that we live in a litigation culture, which has developed over the past 20 years and which means that no one—but no one—says sorry. Even if an individual’s urge and driving force is to apologise for the mistake that they made, they are taken aside by a lawyer or senior manager and told, “Whatever you do, do not apologise to this family.” Often, such an apology at a very early stage would mean so much, and put an end to a great deal of suffering. It would halt much of the needless litigation in the NHS. Hospitals are frightened to admit any form of liability, lest they face a very expensive legal claim.
I broadly welcome the Bill. It is not as good as it could be, but it goes a long way towards addressing some of the concerns that I shall raise. Three years ago, a constituent lost her mother, who had heart disease and lung cancer. She was dying, but she was not meant to die on the day that she did die; she was meant to go into hospital for routine checks and be sent home. A litany of mistakes were made in the treatment of that elderly lady, perhaps the two most serious of which were the fact that bedsides were not put up on her bed, so she rolled out and fractured her hip, and in response to that she was pumped full of fluids, which was the mistake that led to her unfortunate death.
My constituent bravely and nobly took her complaint to the health service ombudsman. I have a 34-page report, which is devastating in its content. One of the saddest parts is in the last paragraph, in which the senior investigating officer, Sarah Gallagher, writes:
“The Trust has asked me to convey—as I do through my report—its apologies”—
to my constituent—
“for the shortcomings I have identified and has agreed to implement the recommendations”
in the report. That was welcomed by my constituent, but what she really wanted was an apology from the chief executive or the chairman of the trust. She did not want an apology via a third party. She wanted an apology from the people who run that organisation, who are responsible for its day-to-day management. It was only after my intervention that she got an apology.
I bear no grudge against the chief executive and chairman of that trust. They were operating within the parameters that the NHS had set them. But I do bear a grudge against a system which for two and a half years made them feel that they could not issue an apology to my constituent. Echoing some of the comments made by hon. Members on both sides of the Chamber this afternoon, I question some of the legal advice that the NHS receives from its lawyers, which seems pretty poor.
My constituent’s lawyers are in negotiation with the NHS for a cash settlement. It is not a huge settlement—well below the £20,000 being discussed today. She wants £10,000; the NHS is offering £5,000. This has gone back and forth between solicitors for a year and a half, with the NHS quibbling over £5,000 after a devastating ombudsman’s report. If the Bill addresses such inequities, it is a step in the right direction.
When I raised the matter with the then Minister, the right hon. Member for Liverpool, Wavertree (Jane Kennedy), I received a wonderful compassionate response from her. At the bottom of her letter there was a handwritten note passing on her condolences and apologies to my constituent, which was gratefully received. I am sure the Minister of State, the hon. Member for Leigh (Andy Burnham) will do as good a job as his predecessor. In this case she was outstanding, and a credit to her profession as a politician.
My one concern about the Bill is that my constituent’s faith in the NHS is shot to pieces. She does not believe that she has been treated fairly. If it was suggested to her that a new system was in place to ensure that she received fair recompense and that there would be an investigation by the NHS to make sure that the mistakes were not repeated, she would not attach much credit to those promises. She believes that the NHS is ultimately self-serving—I am sure that it is not—that it will seek to protect itself, and that the Bill probably would not go far enough to change that.
I hope the Minister will give serious thought to ensuring that the process for helping patients and those who have lost loved ones who bring a claim against the NHS is transparent and, most importantly, impartial. The redress scheme must be the patients’ champion and the champion of the bereaved, not just another arm of the NHS which is perceived, perhaps wrongly, as existing to protect the status quo.
As colleagues and Opposition Members have done, I welcome to his new role the Minister of State, my hon. Friend and neighbour the Member for Leigh (Andy Burnham). I am sure that he will do a great job.
I welcome the Bill, which aims to ensure that patients and their families can obtain redress by way of an investigation, apology or compensation when something has gone wrong with NHS treatment or care. I particularly welcome the broadening of the scope of redress specified in clause 3 to provide for explanations and apologies. It is extremely important for a patient or a patient’s family to be offered an explanation and an apology when things have gone wrong.
Like other hon. Members, in the 13 months since I was elected I have dealt with a number of cases in which the provisions of the Bill would make a considerable difference for constituents. One case stands out for me as a perfect illustration of a situation in which a patient’s family desperately need explanations and apologies. Many hon. Members are familiar with such situations among their constituents. In that case, there was inadequate and delayed diagnosis of a condition that was terminal, leaving the family feeling that the patient’s life ended prematurely and with little time for the patient or his family to prepare for his death. The family feel that the treatment and care that the patient received as a hospital in-patient were “totally disgraceful”.
I shall describe the case in a little more detail, as it shows the extent of systemic failure and why my constituent, Mrs. Dawn Smallman, feels that she desperately needs an answer and an explanation for what happened. Most importantly, the hospital in question needs to admit its errors and take measures to ensure that what happened to the patient, Mrs. Smallman’s father, does not happen to anyone else. Regrettably, the hospital seems unable to do that.
The case is that of Mr. Stanley Collins, who died on 30 August 2005, three days after being discharged from the Royal Bolton hospital. Specific areas of complaint were raised by Mr. Collins’ daughter. Mr. Collins had a stomach cancer which proved terminal. It was finally diagnosed only a week before his death. He had, however, been attending the hospital as both an in-patient and an out-patient since October 2004 and had undergone colonoscopies, endoscopies, biopsies, scans and X-rays. There seemed to the family to be signs of a serious illness. Mr. Collins was in great pain, he was very ill for the last few months and he was anaemic, but hospital staff insisted, almost to the last, that his condition was neither serious nor terminal.
Mr. Collins felt that his condition was not taken seriously. When he was taken in great pain to the accident and emergency unit, the triage nurse merely referred him to the unit’s on-call GP. The GP called for some tests to be done by the family GP to identify the causes of pain, but the request for tests was lost in the hospital’s administrative system. That was just a month before Mr. Collins died.
A few times during the last two months of his life, Mr. Collins was admitted to the Royal Bolton hospital as an in-patient. During these stays, the family felt that he was treated very badly. They felt that he was neglected and left to suffer great pain and a lack of dignity. Many aspects of this inadequate patient care involve basic standards of care and professional practice. First, throughout the last weeks of his life, Mr. Collins suffered great pain, yet medical staff dealing with him did not respond with adequate pain control. His family tell me that they repeatedly asked for pain relief, yet observed that he was often kept waiting hours to be given that.
Secondly, in Mr. Collins’ condition, he needed help at times—for example, to use a commode—yet even that help was not available when he needed it, although it is a basic aspect of care for the seriously or terminally ill. Thirdly, a ward where Mr. Collins stayed during the last few weeks of his life was described by his family as filthy, with dead insects and even toenail clippings not being cleaned away. Next, basic needs such as the provision of clean drinking water and a clean glass were not provided by the staff on the ward.
Perhaps most serious of all was the way in which hospital staff dealt with Mr. Collins in the last week of his life. In this respect, lessons must be learned. A week before he died, Mr. Collins’ family attended a meeting at which the consultant was to give the diagnosis and prognosis for him. The news that Mr. Collins had a cancer that was now terminal, with no real treatment options, was delivered to him and his family on an open ward in the hearing of other patients and visitors. Indeed, Mr. Collins’ daughter found that the news of her father’s condition was overheard by a relative of a work colleague of hers. Mr. Collins had to ask how long he had to live in the hearing of other patients, and he was told that he had a very short time.
Perhaps unsurprisingly, given that low standard of professional practice, hospital staff also failed to deliver the palliative and nursing care that might have made Mr. Collins’s last seven days of life more tolerable. With very little time to live, he wanted to be at home with his family, but even that was not handled well. First, it took from Tuesday to Saturday to get a hospital bed at home for Mr. Collins and for the palliative care consultant to arrange his medication.
Secondly, hospital discharge was arranged on Saturday 27 August by emergency ambulance, but the ambulance never came. Eventually, Mr. Collins’s family came into hospital and found him left in a chair with no help with toileting, no pain control—his drip had fallen out and had leaked all over the floor—and no opportunity to summon help, because the emergency button was out of reach. Disgusted by that treatment, Mrs. Smallman and her mother, who is disabled, signed a form to discharge Mr. Collins themselves by car. Mrs. Smallman said that trying to bundle her father into the car was the worst thing that she has had to do in her life.
Finally, hospital staff discharged Mr. Collins with oral medication rather than the intravenous medication that he needed. On a bank holiday weekend, the district nurses told Mrs. Smallman that it would be practically impossible to get the drugs that Mr. Collins needed for pain relief—it is, of course, particularly difficult to get oral morphine post-Shipman. Mrs. Smallman and her sister spent the bank holiday weekend, which comprised the last few days of their father’s life, driving around on-call doctors and dentists in Bolton trying to get prescription forms signed and to obtain the necessary permissions for the district nurses to administer the medication that their father needed.
The district nurses who were trying to help Mr. Collins contacted the C4 ward of the Royal Bolton hospital, which told them that Mr. Collins was “no longer their responsibility”. Mrs. Smallman has said:
“You cannot imagine the burden placed on us to get this medication in order to relieve his pain. There were times when he was in agony. You cannot imagine what it was like racing back to him with his medication, never knowing if you would be back in time or if he would die while you were out.”
On the day that Mr. Collins died, his GP visited him. Astonishingly, the hospital had sent no information on Mr. Collins’s diagnosis to his GP.
On her father’s death, Mrs. Smallman has said:
“I wish I could say that his death was peaceful, but it was not—he died in pain with absolutely no dignity whatsoever”—
thanks, she feels, to the Royal Bolton hospital. Lack of information from the hospital even made it difficult for Mr. Collins’s GP to certify Mr. Collins’s death, as he had been sent no information about the diagnosis.
Much of the evidence that I have recounted clearly indicates poor standards of nursing and medical care, bungled administration and very poor communication. However, the situation has been made worse over subsequent months by the inadequate response by the Royal Bolton hospital to complaints from Mrs. Smallman. Since raising her complaint with the hospital on 3 October, Mrs. Smallman has found that responses from the hospital have not been sent to agreed time scales and have often been three to four weeks late, that copies of responses have not been sent to me—I have had to chase every single response from the hospital—and that the responses have been inadequate, which is the worst thing for the family. The delayed answers and prevarication by those investigating the bereaved family’s complaints have left the family feeling more angry and upset. The family’s feelings of anger were originally due to what it regarded as undue delay in diagnosing Mr. Collins’s terminal condition and the poor standard of treatment and care that he received both in hospital and on his discharge home to die.
In making her original complaint, Mrs. Smallman knew that nothing could bring back her father or change how he was treated. She raised the complaint to obtain explanations and an apology and to help prevent any other patient or family from suffering in the same way. It is clear to me and my constituent that the current system for redress is inadequate, and I welcome the change introduced by the Bill. Standards of professional practice were patently not met in that case.
The Government cannot manage the practice of every NHS consultant, but we need to bring about a change of culture to allow acknowledgement when a whole system of treatment and care fails a patient and his family, which seems to have happened in this case. When standards of both professional practice and communication fail, we need a system of redress in the NHS which acknowledges and investigates such failures, explains what has happened and apologises to those affected.
We know that cancer care is improving, but we also know that it is still patchy. It is more than three years since the Commission for Health Improvement report “NHS cancer care in England and Wales” highlighted the fact that some consultants have poor communication skills in giving bad news. What happened to my constituent’s father, Mr. Collins, and his family should be seen as an unacceptable standard in communicating such bad news. Indeed, good communication is a key part of the cancer plan. Cancer patients and their families increasingly want help to enable patients to die at home without pain and with some dignity, which did not happen for Mr. Collins, who died in pain and with no dignity. He did not receive the palliative care which he should have received and which many other patients now receive.
The Healthcare Commission has reprimanded some NHS hospitals for failing to pay sufficient attention to complaints, and the number of complaints that went to independent review doubled in 2005. The commission felt that too many trusts were failing to respond promptly and effectively to complaints. That has unfortunately been the case for my constituent, Mrs. Smallman, in her complaint against the Royal Bolton hospital. There is still time for the hospital trust to change the situation and handle the complaint more effectively, and I hope that it will.
I welcome the Bill and the new scope for redress, which will offer the explanation and apology that my constituent and her family need, and benefit other patients and their families.
I rise to support the Bill in the form in which it has been sent to the House from the other place.
It is a particular pleasure to follow my hon. Friend the Member for Broxbourne (Mr. Walker) and the hon. Member for Worsley (Barbara Keeley), who, in their very different ways, brought home vividly through their constituency case studies some of the human problems faced by a minority of our constituents.
Unlike the hon. Member for Crawley (Laura Moffatt), I do not have personal experience of working in the NHS, but, like most hon. Members, I keep in close contact with my local hospitals. Last year, I had the opportunity to work—I use the word loosely—the night shift at Hillingdon hospital in the accident and emergency department on a Friday night. I said that I was there to “work”, but I shadowed the senior nurse through the course of that evening, which covered a period of peak demand for the department. When I left the next morning, I was astonished and impressed by the capacity of staff to cope with the pressure and the flow of decisions—hundreds of decisions were taken that night, and a huge number of decisions are taken throughout the system every day. In his report, “Making amends,” Sir Liam Donaldson, the chief medical officer, states that 50 medical decisions are taken every year on behalf of each person in this country. Given the increased complexity and pressure of the environment in which NHS staff work, it is not surprising, as the hon. Member for Crawley said, that mistakes are made.
I have been surprised by the scale of the problem. The trend in the debate has been to downplay the issue, but I hope that we have not given out the signal that we are complacent. Sir Liam Donaldson’s report informs us that the level of adverse effects during in-patient episodes in the UK runs at about 10 per cent., of which about 50 per cent. are preventable. On my maths, there are more than 400,000 preventable adverse effects a year, which, again using the figures in the report, cost about £1 billion a year in additional bed delays—those are big numbers. The report also points out that the health care sector has been historically tolerant of error, certainly compared with other industries that have had to be a great deal more robust on accountability for health and safety. I hope that we are not in danger of being complacent in the face of the challenge of driving down the scale of the problem.
The stress caused on both sides of the decisions that I have discussed is not in doubt. Anyone who read the report and the account of the mother whose child died as a result of a GP’s failure to diagnose meningitis could not fail to be moved by the thought of how much pain that incident caused on both sides.
I recently met my constituent, Jean McFarlane, a cancer patient who is in remission. She was seriously injured by an overdose of radiation, which left her semi-paralysed and in chronic pain for life. Such was her determination that that should not happen to anyone else, that she joined forces with other women who were injured at the same hospital to form a group called RAGE—Radiation Action Group Exposure. She said, “Sadly, we are now the forgotten hundreds, who get no help from anybody to maintain daily lives. Our injuries are unrecognised, or pushed under the carpet.” Her driving motivation is that what happened to her should not happen to anyone else.
Given the scale of the problem and the consequences for those who are unfortunate enough to suffer from it, we need to be sure that we have a complaints system that is seen to be effective and a system of redress that is seen to be fair. Those are surely hugely important pillars on which to build public confidence in the NHS. I suspect that they are underrated and underestimated within the system; the evidence certainly suggests that they are not as strong as we would wish.
The case for reform of the redress system is not seriously disputed. Although it is clear that progress has been made as a result of Lord Woolf’s recommendations and the actions of the NHS Litigation Authority since 1995, three trends are of particular concern, the first of which is the rising number of clinical negligence claims and the associated costs. The number of claims has risen from 392 in 1996-97 to more than 5,000 in 2004-05, and the associated costs have risen from £235 million in 1996-97 to more than £500 million in 2004-05. I am sure that no one in the House wants to go down the route of the USA, which spends a staggering 0.2 per cent. of its gross domestic product on medical litigation costs. That is a future that we must reject—not least because, as my hon. Friend the Member for South Cambridgeshire (Mr. Lansley) said, every pound wasted in this area is a pound that could be redirected to front-line care.
The second trend that concerns me, and other hon. Members, is the length of time that it takes for claims to be settled. According to the NHS Litigation Authority, the average is 1.4 years, but the National Audit Office has suggested an average of five years for 2004-05. That is too long, as other hon. Members eloquently stated. During that time, there is a great degree of suffering on both sides involved in decisions.
The third trend that concerns me is the waste of time and money wrapped up in the following statistics: 38 per cent. of cases are abandoned, 43 per cent. are settled out of court, and 75 per cent. of claims under £25,000 cost more to settle than the amount that is claimed in compensation.
All those factors conspire to create the wrong culture: defensive, obstinate, and confrontational. It becomes a game in which the patient holds few cards—truly a situation of David against Goliath, as my hon. Friend the Member for Broxbourne put it. I add my voice to the consensus that something needs to be done to speed up the process of claims and to generate a culture that is more conducive to transparency, co-operation and improvement.
We do not hear enough about the need to reduce the size of the Bill. Some £500 million of taxpayers’ money has been redirected. Primum non nocere, “First, do no harm”—I hesitate to introduce Latin into the Chamber—was the motto of Florence Nightingale. I am afraid that we have not heard enough about that this afternoon. For example, how successful has the National Patient Safety Agency been since it was set up in 2001 in helping to reduce the size of the problem, in learning lessons and in identifying risks and mechanisms to track progress with solutions?
I understand that reducing costs is not the main driver of the Bill. Its aim is to provide a simpler means of obtaining compensation in lower value cases. Costs might rise depending on the various assumptions that might be made about future claims. I am happy to applaud that objective, but the test of any new legislation is to ask what it will add to what is already there. What gives us reason to think that it will succeed in its objectives, particularly when one of those objectives is to change the culture? We know how hard that is. How can we be confident about it, particularly given that there is currently nothing to stop the NHS from offering compensation, remedial care, an explanation or apology? That is within its power today. How can we be sure that the Bill will be a turning point in changing that culture so that those options are used more? The frank answer is that it is hard to say because, as the right hon. Member for Berwick-upon-Tweed (Mr. Beith) said, there is so little detail. That point is also made by the Law Society, the British Medical Association and the Constitutional Affairs Committee.
We are told that the NHS Litigation Authority will manage the scheme, so why is it not named in the Bill? The bottom line is that it will still need to be established regardless of whether injuries have been caused by negligence, but what criteria will be used? Who will decide or advise on which cases are eligible? How will proceedings start? Will they be independent of the complaints process? Why was the £20,000 limit chosen? What does it include? Does it include only legal costs or does it include remedial costs? Exactly what type of independent advice will patients and families be entitled to?
Even in the vacuum of detail in which we are asked to debate this afternoon, one real concern stands out: the need for independence and for the process to be seen to be genuinely independent, in terms of judgments being made and of the access that patients will have to independent opinion, not just at the end of the process. The Government are, in effect, bringing everything in-house into the hands of an agency the main purpose of which is to defend the NHS. The model is fatally flawed, because it will remove trust and confidence in that process. If I were a patient who had gone through some of the experiences that hon. Members have described, and I was told that that the NHS was to be the judge and jury in my case, I would not enter that process with confidence or trust.
How will the new system change the culture? Currently, the clearest way of changing culture and raising accountability is to throw a harsh spotlight on matters from outside to break down the culture of stubborn defensiveness that seems to pervade the NHS, as comes through in the evidence from Action against Medical Accidents. Underlying this is a general feeling that the Government know best and that people should take what they are given. That is why I supported our amendment, which seemed to be a victory for common sense. We should separate the redress process into two parts: find the facts and find the fault. An independent redress system that is overseen by the Healthcare Commission is essential for building confidence. The hon. Member for Crawley mentioned the importance of defining the status, training and legal skills of independent investigators.
It is rich for the Government to complain about cost. The figure bandied around for the cost of this scheme is about £14.5 million at the bottom end of the range. It is ironic that today, in Committee Room 15, the Public Accounts Committee is investigating the shambles that is the Paddington health campus project, which the Department of Health failed to supervise over five years, with a cost to the taxpayer of £14.5 million and an opportunity cost that runs into hundreds of millions of pounds. Given that kind of cavalier attitude to taxpayers’ money, it is ridiculous say that the price of a genuinely independent system that will generate confidence is too high at £14.5 million. Only by building a system and a model that can inspire confidence in the independence of decision making can the Government truly say that this Bill is for and about patients.
This has been an interesting and wide-ranging debate in which there have been many thoughtful contributions from both sides of the House.
The hon. Member for Birmingham, Erdington (Mr. Simon) talked about the importance of independence within the scheme. That is terribly important, as the scheme must be seen to have credibility with regard to NHS patients. He also reminded us that “Making Amends” wanted to move away from the tort-based culture, yet the Government’s original Bill had tort as its centrepiece. I remind him of a quote in that report. It stated:
“Tort sits so uncomfortably in an NHS with an ethos of equity…Even a reformed tort system is unfair”.
Despite that, tort is at the centre of the Bill. That is why we proposed amendments in another place and, thankfully, won the day. Our proposals would separate fact finding from fault finding. That is an essential first step.
The hon. Member for Romsey (Sandra Gidley) acknowledged the importance of independence and made the valid point that perception is vital. The Bill and the scheme must be seen to be credible. It is no good simply doing right and claiming that the scheme is independent—it must also be seen to be independent by NHS patients who use it. The hon. Lady made several telling points, including emphasising that the redress scheme must be patient centred and tackle patients’ needs. Sometimes in our discussions we have spoken a little too much about the needs of the NHS, which are not necessarily always those of the patient.
The hon. Member for Cardiff, North (Julie Morgan), who is not in her place, reminded us that the scheme does not apply to Wales and wisely suggested that perhaps the Welsh Assembly should wait to see how the scheme beds down here before taking it on. Clause 17 rightly stresses that Welsh solutions are needed for Welsh issues and reminds the Assembly that it has the power to effect that.
The right hon. Member for Berwick-upon-Tweed (Mr. Beith) wanted clarification about whether patients who cross the border into Scotland would have access to the redress scheme. My understanding—for what it is worth—is that they would not. Doubtless the Minister will clarify that at least in Committee, but hopefully in his winding-up speech.
The hon. Member for Crawley (Laura Moffatt) wrongly suggested that the original Bill was somehow simpler than our proposals. She forgets that we propose to simplify the scheme by limiting it to a role of fact finding. That is much simpler than trying to determine liability as well. Our scheme is therefore simpler. I shall revert to that point when I consider the Government’s suggestion that our proposals mean increased costs.
My hon. Friend the Member for Broxbourne (Mr. Walker) reminded us of how patients must feel in taking on the NHS. He rightly said that the conflict is perceived as one of David and Goliath—an apt description. He also reminded us of what patient priorities often are. Patients want an apology and an explanation, and they want to know what went wrong. Hon. Members of all parties made that point.
Does my hon. Friend agree that the lack of that apology forces many people into taking legal action to get financial recompense because that is the only way in which they feel that their voice is being heard?
Yes, I agree. In too many cases, the lack of an explanation—and an apology, when appropriate—forces patients to seek alternative redress and prolongs the length of the process, at great cost to the NHS. That money could be better spent on patient care.
The hon. Member for Worsley (Barbara Keeley) mentioned a sorry constituency case. I am sure that the House extends its concern and sympathy to the Collins family. The case reminded us that reform is desperately needed—we all agree with that. The issue is how best to ensure that the redress scheme is effective and has patients’ confidence.
My hon. Friend the Member for Ruislip-Northwood (Mr. Hurd) reminded us that, in addition to an explanation and an apology when appropriate, NHS patients also want to ensure that lessons are learned for the benefit of others. That is important. He mentioned the need for transparency and the cost of the current system to the NHS—more than £500 million. He was right to argue for the need for independence.
The Government know that Conservative Members support their attempts to deal with the problem of clinical negligence litigation. As we have heard, the current process is complex, costly and too lengthy. Most clinical negligence cases are legal aid funded and most fail, at great expense to the NHS, the taxpayer and, ultimately, the patient. However, most people do not qualify for legal aid. They therefore seek a credible and independent alternative to going to court. The NHS redress scheme could offer such an alternative.
However, the fundamental dividing line between us and the Government is that, whereas the Secretary of State today envisaged a scheme that would make the NHS effectively judge and jury in its own case, we firmly believe that investigating the facts of what went wrong should be separated from the process of the NHS assessing its liability and making an offer. Moreover, that investigative process must be independent, like the coroner’s court and what happens under the provisions of the Inquiries Act 2005.
The Government have pledged to reverse our key amendments, which were won in another place by a cross-party coalition and with the help of the Liberal Democrats. It falls to the Minister to explain exactly why he will ask 300 or so of his colleagues to troop through the Lobby to remove an essential feature of independence from the new scheme, which has the support of the Law Society and Action against Medical Accidents.
Does my hon. Friend agree that the Government have diagnosed the problem correctly, put enormous effort into tackling it and yet, by failing to put independence at the heart of the new system, could pluck defeat from the jaws of victory? The Minister may not concede the point in his winding-up speech but I hope that the Government will do so in Committee and join Labour Members, including the hon. Member for Birmingham, Erdington (Mr. Simon), and Conservative Members who spoke strongly in favour of the need for independence. We could have true independence and the Bill could be a genuine legacy of the Government if only they agreed to the proposal.
My hon. Friend makes a valuable point, which several hon. Members have raised. If we do not put independence at the core of the Bill, no matter how strongly the Government may argue that it is effective and fair, many NHS patients will not perceive it as such. If it does not have the confidence of NHS patients, we are engaged in an uphill struggle to try to ensure that patients receive the redress that they are due and that they are happy with the process. Otherwise, it will solve no problems.
It is important to make it clear that, although everything hon. Members said about perception is true, that is only half the point. The scheme needs to be independent for reasons of efficacy as well as perception. It should be independent because only independence will produce the right outcomes and do the job properly. It needs not only to be seen to be independent but to be independent.
I agree. Independence should be at the Bill’s core. We attempted to do that with the amendments that were carried in another place. We shall now thrash out the arguments in Committee about how best to ensure that independence remains a feature of the Bill.
The bottom line is that we agree with the Bill’s overall objectives, which are to create a scheme for efficient and speedy redress for NHS patients who have suffered harm through negligence while receiving treatment. We all agree that reform is desperately needed. A typical claim can take several years. The process is too long and costly and largely fuelled by legal aid. In short, it is a mess and does not reflect patient priorities. As we have heard from hon. Members of all parties, the aggrieved patient often wants an explanation, an apology when due, and the reassurance that those who committed the clinical error acknowledge their wrong and that lessons are learned for the benefit of other patients. However, that does not often happen.
The system is widely viewed as unfair. Most clinical negligence cases are funded by legal aid, yet most people are not eligible for legal aid. Many of the vast majority of those who cannot access legal aid are put off from pursuing a negligence claim because of the cost and complexity involved, regardless of whether the grievance is legitimate.
In its original form, the Bill was fundamentally flawed as it did not provide what is needed—an open, independent fact-finding investigation that reflects the interests and priorities of patients. That is why we combined forces with the Liberal Democrats and Cross Benchers in the other place to force amendments on the Government that ensure the independence of investigations. Otherwise, the Government’s proposals would have had the NHS investigating itself as judge and jury in its own cause—a modern form of Star Chamber—which would represent a clear conflict of interest, with the NHS Litigation Authority being asked to take responsibility for running the entire scheme, from hearing the facts to determining liability and awarding compensation.
Paying a fixed fee for a lawyer to adjudicate at the end of the process would not guarantee that the process was independent. We do not know what the fixed fee would be or what sort of in-depth analysis would be conducted. The lawyer may be asked to adjudicate on facts that, for whatever reason, had not been fairly construed.
The Bill, as amended, now provides for a robust, independent investigation, limited to fact finding. We must remember that investigating the facts must logically precede any consideration of fault. We suggest that the investigation should be conducted by independent NHS redress investigators as an inquisitorial process. The coroner’s inquest provides a model. The investigation we envisage would also comply with the spirit of the Inquiries Act 2005, which provides that inquiries may be wide ranging but limited to fact finding, and not consider legal liability. However, that should not prevent fault from being inferred from the determination of fact. In other words, what we are suggesting is already in practice every day. The investigation process we envisage may provide the basis of the explanation, any apology, recommendations and assessment of civil liability.
Under our proposals, the investigation of the facts would be open and with prejudice. That means that the findings of fact would be robust and could have evidential value outside the redress scheme. By separating fact finding from fault finding, the findings of fact by independent investigators would be open. Thereafter, patients would have available to them a range of options for settling disputes. In addition, the NHS Litigation Authority could offer compensation on the basis of its privileged assessment of its liability.
Compensation under the amended redress scheme would be as in the original Bill. However, our proposal provides patients with a range of options at the end of the fact-finding stage should they wish to seek compensation. They may accept an offer under the proposed redress scheme, they may seek to negotiate a settlement or they may wish to enter into a resolve-type scheme. The courts would be available as a last resort. Different cases may require different approaches and procedures. Choice and flexibility should be available. The fact-finding investigation we propose may also provide the basis of an assessment of liability for any proposed claim. We propose that a Mackenzie-type friend should be available to provide support and guidance for claimants.
The original Bill did not reflect patient priorities. Research has shown that when something goes wrong, patients often want an explanation and an apology, and an assurance that lessons have been learned. Compensation does not necessarily rank high on their list. The open, independent, fact-finding investigation that we propose reflects those priorities. Patient safety is promoted by ensuring that lessons learned are not lost. The Government’s focus on compensation does not reflect patient priorities and may subvert the purpose of the investigation. It means also that the importance of the explanation and any lessons risk being relegated.
The original Bill would have provided a demand-led, open-ended, cost-free and risk-free scheme for claiming compensation. That would have proved unnecessarily costly and wasteful of resources better directed to patient care. In addition, the regulatory impact assessment states:
“The vast majority of opportunistic claims will be easily rejected”.
However, the Government will struggle to provide evidence for that. We know that the Government are concerned about that, as evidenced by their talk last year of introducing conditional fee arrangements as a way of ensuring that only claims with merit proceed. That idea was shelved.
The claim that our scheme would increase costs to £41 million is spurious. The Government do not recognise that the infrastructure has to be in place anyway, and we are attempting to simplify the scheme by restricting it to a fact-finding, independent investigation.
Our proposals put patients, not the health service, at the centre of the redress scheme. By confining the investigation of a case to fact finding by an independent process, and separating fault finding, we would largely avoid the problems of the original Bill. Patients’ interests would be safeguarded by independence, so they would be more likely to have confidence in the system. Our proposals would allow patients access to a fairer and perhaps better result. No scheme would be perfect, but our amendments to the Bill are a substantial improvement. Our proposals would be more likely to lead to a fair outcome, weed out spurious claims and meet patients’ expectations. My final plea to the Government is: please leave the Bill alone.
We have had a good debate this afternoon, which has been something of a parliamentary rarity in that we all know something of what we are talking about. That is—dare I say it?—not always the case. All hon. Members, especially those who have contributed to the debate, will have had firsthand experience of the NHS complaints system and of helping constituents to obtain redress from it. As a result, hon. Members talk with knowledge and authority on the issue.
I acknowledge that the process can be unsatisfactory and frustrating, often deeply so, for individuals and their families. The hon. Member for Ruislip-Northwood (Mr. Hurd) cited the statistic that since 1995, 38 per cent. of cases have been abandoned before reaching a conclusion and 43 per cent. have been settled out of court. Those figures show that the current system does not deliver much satisfaction to NHS patients and their families.
The vast majority of patients and families are not motivated by a desire to hurt the NHS or to take it to the cleaners, as my hon. Friend the Member for Crawley (Laura Moffatt) said. They simply want the system to take proper notice of what has happened, to apologise and to show that steps are being taken to ensure that other patients do not suffer in the same way. Members on both sides of the House have made that point about the motivation of the vast majority of those who come through the doors of our constituency surgeries with complaints about the NHS. We are united on that.
It is because the system often does not respond in the right way that people feel that they have no alternative but to use the legal route—it is the only way to get those responsible to sit up and take notice. That said, the hon. Member for Broxbourne (Mr. Walker)—for whom I have great respect—said that the system never says sorry. That is not entirely true. There have been many examples of good practice in the NHS and we increasingly see a spirit of openness and a willingness to accept criticism and address problems head on. However, I am sure that the NHS could improve in that regard.
I stand corrected. I should perhaps have said that in many cases the NHS is reluctant to apologise.
I agree with the hon. Gentleman that the culture has perhaps not encouraged the issuing of apologies; he was right to draw attention to that point. The point was also made very forcefully by my hon. Friends the Members for Crawley and for Livingston (Mr. Devine) that the culture has not been there to encourage those working at every level in the system to accept responsibility.
There has been broad consensus in the House today that we could do better, and the Bill seeks to engender a culture change, a spirit of openness and a willingness to find resolution. This is an important reform that is in tune and consistent with other reforms that the Government are making to ensure that the patient is truly at the heart of the NHS and that the NHS responds first and foremost to the interests of the patient. So we have a good measure of agreement.
Many points of detail have been raised in the debate today, and I shall seek to address them in order. However, I shall leave until last the major point of substance about which there has been disagreement across the House—the issue of independence. The hon. Member for South Cambridgeshire (Mr. Lansley) said that this was not a party-political debate, and he was absolutely right. As a new boy to this job, I was pleased and surprised to hear him outline his policy on clinical negligence. That was the first Conservative policy that I have come across in that area. So there is one up on the board, and we look forward to a few more appearing in the not-too-distant future.
The hon. Gentleman also said that the scheme proposed in the Bill is what the NHS should be doing anyway. That is partly true, but I hope that he will accept that one of the problems with the present system is the confusion that often results because the system is unsure whether a patient is also bringing legal action. This can result in a kind of stand-off, and in uncertainty as to the status of the complaint. The Bill will bring absolute clarity to the situation and create a space in which complaints can be clearly addressed.
The hon. Gentleman also mentioned disclosure, saying that the provisions would not leave the patient any better off, because nothing would be disclosed. That is not the case. Under the scheme, relevant material will be disclosed to the patient. We are also considering whether an investigation report should be issued to the patient at the end of the process, and we will consider that matter further in consultation with stakeholders. The scheme will not leave the patient no better informed. Indeed, the whole point of the Bill is that patients will be able to find out what has happened and see the information relating to their case. So I am happy to put the hon. Gentleman right on that point.
Can the Minister give us any clue as to the time frame within which patients making a complaint might expect to receive the document to which he has referred?
That is an important point, and it was also raised by my hon. Friend the Member for Birmingham, Edgbaston (Ms Stuart)—
Erdington and Edgbaston. There is a confusing number of Birmingham constituencies beginning with “E”. Both my hon. Friends raised that point. It is intended that each stage of the scheme will be governed by time limits to ensure consistency and appropriate speed in the handling of cases. The hon. Member for Beverley and Holderness (Mr. Stuart) has asked a fair question, and I can tell him that the time limits will be set out in secondary legislation after full consultation with stakeholders. We want to ensure that the limits are practical and effective, and that they do their job without placing on the service undue burdens to provide information. We accept the principle that there should be time limits, because we want the system to deliver the speediest possible redress while ensuring that a full inquiry takes place. My hon. Friends the Members for Birmingham, Edgbaston and for Birmingham, Erdington (Mr. Simon) both drew our attention to that issue.
The hon. Member for South Cambridgeshire also questioned us on the issue of tort, and asked why we had moved away from the recommendations in the “Making Amends” report. When developing the redress policy, officials had a series of meetings with stakeholders to discuss the practicality and desirability of an alternative to the existing legal test of liability. Among the alternative tests examined was one based more on determining whether harm caused to a patient could or should have been avoided, rather than on making reference to an act or omission of an individual clinician. However, it became clear that changing the whole basis of clinical negligence law was likely to be extremely difficult and time consuming. The Department reached the conclusion that, given that many of the problems in the present system relate to its adversarial nature, to the time that it takes and to the high administrative and legal costs involved, reform of the test itself was neither desirable nor necessary. So we have concentrated on delivering what we believe will be a better system to provide better redress for the cases that meet the existing legal test for liability.
I wonder whether the Minister can see the logic in my suggestion. If the Government insist that tort should remain at the heart of the Bill, and if the test is to be a purely legal one, the Bill must surely include the provision of legal advice to the claimant throughout the process if it is to make any sense. If the people who are trying to get justice are to be genuinely empowered, they will need to be given legal advice.
I will answer my hon. Friend directly. There is a danger there of replicating the present system. The new scheme will do things differently and better for the individual patient. However, he makes a fair point. I draw his attention to clause 8, which provides the flexibility for legal advice to be made available, not only at the end of the process but throughout it. It could, for example, be made available when a joint medical expert is appointed. It will be possible for advice to be provided; there is flexibility in the Bill in that regard. Perhaps we will return to this issue in Committee, but in the majority of cases, the advice will be needed at the point at which an offer is made, when the process has reached its resolution, and our proposals for the development of the scheme reflect that.
If an offer is rejected, will the patient have the right of appeal, or will his or her only destination at that point be the courts?
It is not our intention to allow an appeal. We want the scheme to work properly to provide speedy redress to the patient. The patient will not lose their right to take the matter further, however. The right to refer the matter to the health service ombudsman is enshrined in the Bill, and people will obviously retain their legal right to take further action. In our view, it would be too bureaucratic to keep reviewing and appealing the decisions, and that is not the intention behind the scheme.
I want to make a little more progress. I will give way to the hon. Gentleman in due course, if that is okay.
My hon. Friend the Member for Birmingham, Erdington spoke well, and I appreciate the work that he does in his role as patron of AvMA—Action against Medical Accidents. I appreciate the work of that organisation, and his welcome for the Bill. He made the interesting point that the vast majority of cases had already been rigorously investigated by the NHS before going on to be unsuccessfully defended. That underlines the point that we need a different way of doing things, and that the system needs to be able to react differently to the handling of complaints. So my hon. Friend made an important point, but the conclusion that I draw from it is different from his.
The hon. Member for Romsey (Sandra Gidley) placed particular emphasis on the lack of provision for primary care in the Bill. However, as the Secretary of State explained earlier, primary care is governed by an entirely different set of arrangements. The NHS Litigation Authority does not have responsibility for the provision of primary care. It is possible that people might in future seek to extend the ambit of the Bill, but that is not on the agenda at the moment. It is important that we put in place a scheme that works for hospital care—secondary care. The arrangements that already cover patients and provide protection to them in the primary care setting—the professional indemnity that primary care practitioners have—will continue to be the way that their claims can be met. Of course, at that level, claims tend to be smaller than those in the secondary setting.
If that is so, why does paragraph 92 of the Government response to the Constitutional Affairs Committee report say of the scheme:
“If it is successful in delivering a better response for patients…the Department will want those benefits to be available for all NHS patients and will consider extending the scheme.”?
Was that not meant to imply that the scheme might eventually cover primary care?
The right hon. Gentleman is correct in saying that there is not a closed mind here, but we shall review the position in due course. The important thing is to get a scheme that works for hospital care and then to see whether the will or consensus is there in the future. Such an extension would significantly widen the ambit of the scheme and significantly increase its cost. At this stage, it would not be right to go in that direction, but as I have said, that is not to say that the position is closed.
The hon. Member for Romsey made some important points. She said that there is an unwillingness to own up early in the NHS and that we need a change in culture, which would save so much time and effort. On hearing that, I thought that she was about to support what we are doing, because those things need to be internal to the NHS, not externally imposed. The only way to get internal culture change—she rightly drew attention to this—is to encourage the NHS from within to adopt a different culture.
There are issues of independence, which I shall come to, but I want to stress to the hon. Lady that most trusts have a lay non-executive on the board who is specifically charged with dealing with matters relating to complaints. That is true of my local trust. There is already independence within the arrangements, and it is important not to ignore that fact.
The hon. Lady also mentioned the value of compensation and people not being short-changed, but there could be no incentive under this scheme to short-change people or to give them a value less than they would get in the courts, because that would simply encourage taking a claim further to the legal level, duplication of effort and further cost to the system. I do not believe that it is in the interests of the NHS knowingly to offer less than would be obtained in a legal setting. I hope she is reassured on that point.
My hon. Friend the Member for Cardiff, North (Julie Morgan), who has apologised for being unable to be present, made an extremely important point. She welcomed clause 17, particularly its permissive and deliberately broad powers to enable our colleagues in the Welsh Assembly to develop their own redress scheme that meets the needs of the Welsh health service. She rightly drew attention to the speedy resolution scheme and the various aspects of it, which we can learn from. We will seek to draw from them as we take our proposals forward.
The right hon. Member for Berwick-upon-Tweed (Mr. Beith) raised the West Lothian, or the Borders, question. It is obviously a fair question, but it is often one that vexes legislation of this kind. The statement of policy on NHS redress states:
“Where hospital services are commissioned as part of the NHS in England from a healthcare provider outside of England and Wales, the commissioning body”—
the PCT, in the normal run of events—
“will run the scheme and coordinate the investigation, and where appropriate make the offer of redress.”
The liability as I understand it, not being a lawyer, is of a different kind, but I believe that there is protection for the right hon. Gentleman’s constituents should they choose to be treated in Scottish hospitals. That is something that we would want to encourage, rather than take away.
The right hon. Gentleman drew attention to the costs of the scheme, but as the hon. Member for Romsey said from the Liberal Democrat Front Bench, the costs can vary from year to year, so it is difficult to give any precise costs for the scheme. Cases can vary and it is important that we all accept that. We cannot plan with absolute certainty on those matters.
My hon. Friend the Member for Crawley spoke passionately and authoritatively, as befits someone of her standing in the NHS. She was right to talk of the effect on staff of the pressure that such complaints can bring. That aspect was missing from our debate until she rightly introduced it. I am sure that those complaints place huge distress on the members of a clinical team who have been involved in an incident where something has gone wrong. She drew attention to one herself.
Things are obviously extremely difficult for people in such circumstances, which, again, makes the point for the Bill, in that those people should be supported. People will make mistakes, so we must consider how the system supports someone through that process and encourages them to be able to make redress through their employer or organisation. We must produce a more satisfactory result than a finger-pointing culture and neither the patient nor the staff feeling satisfied.
My hon. Friend was right to draw attention to that issue, and she also said that we need a simple scheme that creates confidence in the NHS that it will work. Again, she was right to make that point. The hon. Member for Broxbourne made a similar point, drawing attention to a particularly distressing constituency case. He spoke well, and also spoke kindly of my predecessor, who would thank him for that. We offer our sympathies to the individual involved in that case and would want to learn from it.
My hon. Friend the Member for Worsley (Barbara Keeley) raised the case of Mr. Stanley Collins, who sadly died at Bolton hospital, and the difficulties encountered by his daughter, Mrs. Dawn Smallman, in getting the system to face up to the clear inadequacies in his care. My hon. Friend described them in a measured and compassionate way. She was right to say that such injury can be compounded by the process of trying to get redress through the system. I am sure that her comments will have been heard by others outside the House today in relation to whether we can, at this stage, get the hospital to take those issues up.
My hon. Friend also raised an important issue of communication by clinical staff with patients at a distressing time. It is my experience of patients who come to my constituency surgery that they recall every single word of what was said to them, as well as the manner in which those words were imparted. They are seared on people’s minds for the rest of their lives.
Receiving such news can be the single most important event in people’s lives. There is great professionalism in the service, but people would always do well to remember the point that the way in which people hear difficult news can be extremely important. My hon. Friend made a significant point in drawing our attention to that.
Before I close, I want to deal with the main point of substance between us—that is, the measure of independence in our proposals. Our remarks have drawn out the fundamental differences between how we and Conservative Members in particular see the scheme.
Let me say quite clearly that this is the NHS Redress Bill. The Bill relates to the NHS itself; the NHS has ownership of it. It is about getting the NHS to face up to mistakes when things go wrong, take ownership of them and make proper redress to people who are on the receiving end of inadequacies in care. There is a crucial difference, in that this is an internal system that the NHS will feel it owns and has control of.
As I understand the proposals tabled by the Opposition in relation to clause 12, the same process would effectively be created twice, but there would be a more adversarial system—a finger-pointing culture— whereby people would feel under pressure, which is not the purpose of the Bill we are introducing. That takes us back to my comments to my hon. Friend the Member for Crawley.
The Minister makes the point that we are considering the question of ownership by the NHS, but I put it to him that the central issue is whether patients will be fairly treated and whether they will have a system that best meets their priorities. We suggest that the best way to achieve that is to have a system that is truly independent.
Our proposal is not more adversarial, because we suggest splitting fact finding from fault finding. Bringing in the fault finding creates the adversarial aspect, so we suggest that the redress scheme simply restrict itself to fact finding. That should not be adversarial in itself.
I want to explore that with the hon. Gentleman in Committee, but if we want a change of culture in the NHS and if we really want it to respond differently when confronted with a poor patient experience, it must be right that the NHS can make its own response to take ownership of the situation. It must be right for the NHS to understand what is going on. The service is perfectly capable of establishing and presenting the facts. That is what it does already, but we can ensure that does it even better.
Patients will retain the ability to take their claims to the courts through an independent legal process. That has not been signed away by the scheme. The hon. Gentleman, and others who have used the phrase, are wrong to say that the NHS is judge and jury. That is patently not the case.
I will not give way.
Patients are not signing their rights away in pursuing cases under the Bill. It simply gives some breathing space—some time—in which the NHS can examine what has happened, engage positively with the family involved and establish whether a better way can be found of giving them what they want: an apology, an explanation and, crucially, an assurance that the same thing will not happen to someone else. My argument, which I shall develop with the hon. Gentleman in Committee, is that our proposals will deliver that result better than a replication of an adversarial, finger-pointing, accusatory system. The hon. Gentleman is advancing a fundamentally different proposal, with which we do not agree.
Let me refer the hon. Gentleman to the words of the health service ombudsman, who said:
“I hope that the fact that an independent review of complaints about the scheme will be available will give reassurance to both complainants and the NHS bodies involved.”
Numerous elements of the scheme import some independence. The independent legal advice that I mentioned will be available to patients, along with independent medical advice. Experts will be appointed jointly by patients and professionals. There will be an annual independent review by the Healthcare Commission of how the proposals are being implemented by NHS bodies, and there will be an independent ombudsman’s review.
Yes, for the last time.
The Minister is proposing a system under which the NHS will establish the facts, adjudicate and then offer compensation. How can he claim that the NHS will not be both judge and jury in its own cause?
The NHS is not signing away the patient’s right to pursue the matter further. We are not trying to replicate a legal process; we are trying to create a different system, in which the service accepts its mistakes, considers how it can make amends, and absorbs the lessons to be learned. That is better than replicating an adversarial, independent process in a redress scheme. We do not want a duplication of effort.
Notwithstanding the hon. Gentleman’s ill-informed remarks, we have had a well-informed debate with a good measure of consensus that the NHS redress scheme will benefit all our constituents who seek a fairer resolution of their complaints, closure, and the ability to move on more quickly than they can now. Of course, we also want to ensure that there is no let-up in our efforts to create a safe, clean and efficient environment for the delivery of NHS care. That is the other side of the coin. The NHS continues to make huge progress in that regard, and the National Patient Safety Agency continues to work towards best practice to reduce the number of mistakes.
There are issues of detail to which we shall return in Committee, but I think we can assume from today’s debate that there is a measure of agreement. We shall probably be able to improve the Bill further, but crucially, we must ensure that the NHS views itself more honestly and openly, and works with patients to give them the redress that they deserve.
Question put and agreed to.
Bill accordingly read a Second time.
NHS REDRESS BILL [LORDS] (PROGRAMME)
Motion made, and Question put forthwith, pursuant to Standing Order No. 83(A)(6)(Programme motions),
That the following provisions shall apply to the NHS Redress Bill [Lords]:
1. The Bill shall be committed to a Standing Committee.
Proceedings in Standing Committee
2. Proceedings in the Standing Committee shall (so far as not previously concluded) be brought to a conclusion on Thursday 22nd June 2006.
3. The Standing Committee shall have leave to sit twice on the first day on which it meets.
Consideration and Third Reading
4. Proceedings on consideration shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which those proceedings are commenced.
5. Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.
6. Standing Order No. 83B (Programming committees) shall not apply to proceedings on consideration and Third Reading.
7. Any other proceedings on the Bill (including any proceedings on consideration of any Message from the Lords) may be programmed.—[Tony Cunningham.]
Question agreed to.