House of Commons
Monday 5 June 2006
The House met at half-past Two o’clock
[Mr. Speaker in the Chair]
Oral Answers to Questions
Culture, Media and Sport
The Secretary of State was asked—
My right hon. Friend the Secretary of State and I are aware of the many cultural attractions that grace the Wakefield area, and I was delighted to be in the area recently celebrating the plans for the new Hepworth gallery that is being built there. I know that the Secretary of State will also be visiting the region with the Olympic roadshow in July.
I thank my hon. Friend for his reply, and for his visit to Wakefield to launch the Hepworth trust. Will he join me in congratulating the Yorkshire sculpture park on its recent new commission of James Turell’s fantastic Skyspace deer shelter in the park? It is the first major commission by the national art collection since Rodin’s Burghers of Calais, which stands outside this place. Will my hon. Friend pencil into his forward diary the opening of the new Hepworth gallery in Wakefield city centre in 2008? It will regenerate a swath of our historic waterfront and attract visitors from all over the world to our proud city.
I know that my hon. Friend is doing a huge amount to promote culture and the arts in her region, and we are very grateful to her for that. When I was up in Wakefield, everyone was talking about the sculpture park and the Skyscape, and particularly about the way in which the three elements—the landscape, the architecture and the sculpture—combine to make the park really wonderful. I look forward to visiting it soon, and we have of course pencilled into the diary the coming to fruition of the Hepworth later on.
The candidature file set out the key costs of staging the games. Since then, it has become clear that, in certain areas such as security, there are cost pressures. We are seeking to mitigate those pressures wherever we can, by cost reductions and by maximising the value of the Olympic site itself. That work is continuing.
Given last month’s confusion over the London Organising Committee for the Olympic Games—LOCOG—budget, will the Secretary of State provide the House with an accurate estimate of the Government’s contribution to infrastructure improvements in the east end? How much of that is specific to the Olympics, and how much would have been done anyway? Will the Secretary of State consider moving more of the events to places outside London—where facilities either already exist or could be provided more cheaply—such as Much Wenlock in my constituency, which is the home of the modern Olympiad, as she knows?
I know that the hon. Gentleman has been a champion of bringing Olympic benefits to his constituency. I shall be taking part shortly, along with colleagues on both sides of the House, in the Olympic roadshow, which will be travelling around the country between 6 and 27 July. I am quite sure that Much Wenlock is on our itinerary, as it should be. The hon. Gentleman is right to say that the benefits of the Olympic games—which will be considerable in economic terms—should be felt around the country, and that is the overriding purpose of the Olympic tour.
In relation to the hon. Gentleman’s first question, I am sure that he will understand that the answer will depend on the conclusion of discussions and negotiations about the balance between the publicly funded parts of the Olympic park and those that might be funded by the private sector. It will be easier to give him an accurate answer when the Olympic Delivery Authority publishes its corporate plan in the autumn.
Does my right hon. Friend agree that an important part of the Olympics involves ensuring that funding is directed to the next generation of sports stars? Will she therefore look into the reasons why The Northern Echo newspaper in the north-east, which wants to raise funds for youngsters as part of its Olympic Dream campaign, has been blocked by the 2012 Olympic organising committee from using the word “Olympic” in the campaign? This public-spirited campaign has a lot of support in the north-east, but it is being blocked by bureaucratic nonsense.
I thank my hon. Friend for his question, and I suspect that similar questions will come up quite often between now and the opening of the games. There are two elements of which he needs to be aware. The first is that the legislation precludes any kind of commercial association with the Olympics unless it is borne out by financial sponsorship. That protection has been established by the International Olympic Committee to address some of the issues that my hon. Friend raised in his first question.
That said, however, I am absolutely determined, as is my right hon. Friend the Minister for Sport, to ensure that young people from right around the country benefit from this unique opportunity to take part in sport, glorified by the Olympics. The UK school games has already been established, and we will work with colleagues on both sides of the House to ensure that the legislation required by the IOC is interpreted properly and proportionately and does not put off young people or key local sponsors from taking part in the Olympics.
I wish the Secretary of State well in her efforts to mitigate any costs overrun, but can she give some clarity as to who will pay for any overrun? I represent a London seat, and my constituents already face a substantial bill over a long period. Can she assure me that the costs overrun will be borne nationally, not just by the people of London?
No, I cannot give the hon. Gentleman that assurance. He knows that the agreement that was signed, which is part of the candidate file, made it absolutely clear that there was a budget that would fund the infrastructure for the Olympic games and that any costs beyond that would be met on the basis of a shared agreement, as at that time unspecified, between the lottery, the council tax payer and, ultimately, the Exchequer. It is worth reminding him that the costs of the Olympic games, again as a requirement of the IOC, are ultimately underwritten by the Exchequer.
The hon. Gentleman and his Front-Bench colleagues will know that the overriding consideration is to keep the cost of the Olympic games down, to maximise the benefit of the legacy and to maximise the benefit to young people in communities in every constituency in the country.
My right hon. Friend is aware that the rest of the UK will benefit from the 2012 London Olympics, but can she advise the House, given that other cities will benefit, whether other, devolved bodies will be expected to make any financial contribution towards the London Olympics?
There is no assumption that any direct funding will come from any of the devolved authorities. Obviously, the lottery will be a major contributor to the costs of the Olympics, and funding the Olympics means that there will be some diversion from other good causes, so indirectly there will be a consequence for the devolved Administrations. The funding formula for the Olympics has been clearly set out and the Olympic lottery is doing very well—better than we expected—but, no, there is no intention that, other than through the lottery, there should be a direct impact on any of the devolved Administrations.
The Secretary of State will be well aware that the £625 million already agreed as London taxpayers’ burden for the Olympics includes £50 million for cost overruns such as she has described as possibly occurring. Will she then at least agree to cap London’s burden at that £625 million, given that an overrun is already included in that figure?
As well as being Secretary of State, I am Member of Parliament for a London constituency. My constituents are as concerned as those of the hon. Lady about the impact on the council tax. It is our responsibility to ensure that the council tax burden is minimised. We have had here and in another place many debates on whether the ultimate amount should be capped, and the reasons as to why not have been clearly set out.
The Secretary of State has said that her constituents, like mine in Uxbridge, are concerned about the cost and the legacy of the Olympics. Is she aware that in the London borough of Hillingdon we have plans for a 25 m pool ready to go ahead, but we are just waiting for a little more investment from either Sport England or the Government to make it a 50 m pool, which would be a superb legacy for the swimmers of west London? A 50 m pool is desperately needed in west London, so can she give us a little hope that her Department will look into this matter a little more seriously?
I am delighted that a new pool is planned for the young people of Hillingdon. The decision on whether it will be a 25 m or a 50 m pool should be made by Sport England, and should be made in the context of proper distribution of 50 m pools—which, as the hon. Gentleman knows, are the standard facility required for competitions.
I cannot tell the hon. Gentleman conclusively at this stage whether Hillingdon is the prime location for a 50 m pool, but I am sure that the pool will be a much-used facility if it measures 25 m. I suggest, however, that on behalf of his constituents the hon. Gentleman should arrange to meet representatives of Sport England, and representatives of UK Sport if necessary, to discuss the distribution of pools and whether Hillingdon is the right place for one.
Obviously my right hon. Friend will be considering funding issues, but does she recognise that Lancashire can play a role in the Olympics too? I am thinking particularly of Chorley, which hosted the mountain biking and road cycling events in the Commonwealth games. Could my right hon. Friend find funds to support a sporting village in the Chorley constituency?
I am sure that my hon. Friend will raise that with me on many occasions between now and 2012.
Our intention and hope is that a combination of increased Government investment in sporting facilities and the activities of local clubs, local authorities and the private sector will produce a substantial rise in the number of facilities not just in my hon. Friend’s constituency, but throughout the country. I look forward to having many more discussions with my hon. Friend, and support his advocacy of a sporting village in his home town.
The question of how we empower young people through sport remains the one wholly uncosted element of the entire Olympic equation. Given that the amount of lottery funding for sport has fallen from £390 million in 1998 to £264 million last year, and given that the proposed big lottery fund has only £19 million earmarked for it, how will the Government finance the key Singapore commitment to empowering young people through sport?
I would not rely only on lottery money, which, as the hon. Gentleman knows, is spent principally on facilities. Some 2,000 new facilities have been or are being developed on the strength of lottery funds. The programme is not yet complete; it will be complete next year.
The hon. Gentleman should incorporate in his sums the money that is being invested in school sport—some £500 million a year—the money being invested in coaches, the money being invested in the talented athlete scholarship scheme and, of course, the money being invested by the Chancellor in the development of elite sport, as announced in the Budget. It will help participation to ensure—and this will be done by 2010—that every child engages in at least two hours of sport each week in curriculum time and has the opportunity to take part in sporting activity outside school, and that there is competition in schools for young people.
The hon. Gentleman must accept that the money that has been invested over the past three years is now producing results. It is producing results for one specific reason: this Government are wholeheartedly committed to sport being part of every child’s life, and we have provided the means for that to happen.
The new licensing laws have been in place for six months, and it is still too soon to draw any conclusions about their success. What does seem clear is that there has been no discernible increase in alcohol-related crime, and there have been many reports of better working relationships between the police, local authorities and other relevant local partners. Monitoring and evaluation, particularly through the work of the scrutiny councils, will give us a clearer picture of the impact in the longer term, and will guide us in respect of any changes that may be necessary.
I thank my right hon. Friend for her reply. I share her view that giving local communities more control over licensing has been an important step forward. However, coming up is the combination of light nights and World cup fever, which could be the supreme test of the new licensing laws. What special measures are being taken to improve coordination between the industry, police and local authorities to ensure that everyone has an enjoyable World cup?
I thank my hon. Friend for his question and pay tribute to his local authority for its implementation of the Licensing Act 2003. There will be a nationwide programme of policing and enforcement during the World cup, but it is important to note and to take some reassurance from the fact that most World cup matches will be played during the daytime or the early evening. It is not as if the World cup is being played on the other side of the world, which would mean that people were up long after what has become the more normal closing time. However, the police will operate under gold command, co-ordinating across the UK with local forces. Individual establishments are carrying out risk assessments. Licence conditions such as not taking glasses out of the pub are being employed and CCTV is being used. I am encouraged not only by the focus of the police and the seriousness with which they are taking the matter, but by the new spirit of collaboration with local authorities.
Is the Secretary of State aware of the latest research by the Central Council of Physical Recreation, which shows that, contrary to the claim by the Minister for Sport, over 75 per cent. of amateur sports clubs fall outside band A and therefore face significant extra bills as a result of the Act? Is she aware that many village halls, including that in Maldon in my constituency, used up their entire entitlement to temporary event notices by the end of January? Will she ask Sir Les Elton’s committee to address those problems as a matter of urgency and act on its recommendations?
The hon. Gentleman has made it clear that he understands the process by which these questions will be settled. An independent panel sitting under Sir Les Elton is examining fee levels and their impact. He will report later this year.
On the hon. Gentleman's second point, which was about temporary event notices, we have just concluded a consultation on whether there should be any change, but he should remember the importance of getting a proper balance between the interests of local residents, who have greater powers of redress under the Licensing Act, and the wish of village halls and other organisations to be able to put on events with the minimum of bureaucracy. We will address those issues and publish the conclusions later this year.
As my right hon. Friend knows, there is a section within the Licensing Act that states that every sale of alcohol has to be under the supervision of the licence holder. In south Yorkshire, the police have taken that to mean that the licence holder cannot be absent from the premises even for one day and, despite the advice from the Crown Prosecution Service, they have pursued a prosecution of a licence holder who took a few days holiday. In a letter to me that arrived this morning, South Yorkshire police are standing by that interpretation of the legislation and are looking to bring the matter before the courts to try to clarify whether, under the law, which I think is section 19, every sale of alcohol has to be supervised. Will she look at that matter with some urgency because, with the law as it stands, South Yorkshire police will not allow licence holders to take any form of holiday?
While the Secretary of State is absolutely right to say that it is far too soon to judge the impact of the Licensing Act on binge drinking, does she nevertheless agree that one impact has been to create a bureaucratic nightmare for many people? Only today we have heard reports that up to one in six public houses may be trading illegally because they are still awaiting the licence for their premises.
The Secretary of State has just told us, on village halls, amateur sports clubs and so on, that the Government are to consider the matters raised earlier and report on them later. Yet only today I have discovered that the carrying out of the initial part of the Elton report is many months late.
Is the Secretary of State also aware that we have discovered today that the Government are miles behind in their work and consultation on temporary events notices? What is she going to do about that?
With great respect to the hon. Gentleman, I have to say that that is the kind of diatribe I have come to expect of him. I do not accept all his charges. I am extremely circumspect about making any prediction at this stage on the impact of the Licensing Act, but it will be judged in terms of the objectives set out within it: does it reduce alcohol-related crime and disorder; and does it protect the vulnerable and keep children safe from harm? Those are the tests against which the Act will be judged, and the House will be able in due course to pass its own judgment.
Will my right hon. Friend work closely with her colleagues at the Department of Health to monitor the impact of relaxed licensing laws on consumption and on the implications for the country’s long-term health? Is she, like me, concerned about rising levels of alcohol-related disease, particularly deaths from cirrhosis of the liver?
Will not the public think it completely barmy, if typical of this incompetent Government, that a pub needs a licence for one or two musicians in the bar but does not need one to show World cup matches on big screens to hundreds of inebriated supporters? Will the Secretary of State tell us just how much taxpayers’ money is being used on extra policing, under the alcohol misuse enforcement campaign, in order to massage the crime and disorder figures associated with showing World cup matches?
I shall certainly provide the hon. Gentleman with the figures for spending on the AMEC campaign, which is just concluding. Even he, I think, will judge that spending on past campaigns, which have seen a reduction in alcohol-related violence, has represented excellent value for money.
As for two-in-a-bar versus big screens, the hon. Gentleman knows that the arguments were well ventilated when the Act was debated. Parliament reached its conclusions, and we are getting on with implementing them in a way that reduces alcohol-related crime and disorder, keeps children safe from harm and gives responsible adults a better time than they would otherwise have.
Folk Dance and Song
The Department for Culture, Media and Sport funds Arts Council England to promote and invest in music and dance. Funding levels for these sectors are at their highest ever, with music receiving more than £100 million a year and dance more than £34 million. Investment in folk music and dance has quadrupled since 2002.
I hear the answer that the Minister has given but he has not put any figures in it. He will be as aware as I am that Arts Council England is guilty of artistic cleansing of England’s traditional, indigenous, working-class folk dance and song. As English pride reaches a climax with the World cup approaching, does he agree that Arts Council England should invest more in English folk dance and song, and not invest in contemporary Latin American art, as in foisting a £5.5 million art gallery on Colchester, which people there do not want?
The hon. Gentleman is just plain wrong about the new visual arts centre that is coming to Colchester, of which the Latin American arts component, which is the university of Essex’s contribution to the art gallery, is but a small part. The visual arts can bring regenerative effects, and we all hope to see them in Colchester, as we have seen them in Salford, Newcastle and Gateshead. Yes, he is right: of course the Arts Council should invest in all art forms. That is why it has quadrupled the amount of money that it has given to folk dance, of which he is such a fan; but money has also gone to Colchester’s museum service, which has increased, and to the Mercury theatre in Colchester and to the Colchester arts centre. Across the board, the arts have experienced a funding increase in Colchester—something that he should be pleased about and proud of.
Does the Minister agree that today, which is world environment day, is a prime day to encourage people to holiday in the UK, to enjoy our folk music and dance and to acknowledge the important role played by local authorities in promoting tourism in the UK? Will he write to the British Resorts and Destinations Association, which has its conference this weekend, to congratulate it on the input of local authorities into tourism in the UK, as well as into promoting folk dance and music?
My hon. Friend is absolutely right. Yes, I will write, but I am also speaking to the Local Government Association on Wednesday, when I will be talking about those very issues, which have caused a revival, not just in our inner city areas but across the country, because local authorities are taking culture and the contribution that the arts can make very seriously.
Switchover across the UK will begin in 2008 and be completed in 2012. In the hon. Gentleman’s constituency, as he knows, there are three broadcasting regions: Anglia, Central and London. Switchover for Anglia and Central will take place in 2011 and be completed, with London, in 2012.
Is the Minister aware that some of the information on the Digital UK website is not accurate and could lead viewers to subscribe to commercial packages that they do not need? In areas, such as mine, on the edge of a Government region, will he investigate whether the Department could do more to clarify which digital transmitters will transmit programmes to areas outside their own regions?
The hon. Gentleman makes a fair point. Given that the Government are committed to ensuring that switchover happens across the whole country by 2012, it is absolutely important that we get it right. At this stage, of course, what we have conducted are pilot schemes and trials. In 2008, we begin in the Border region. There are lessons to be learned, and the point that he makes is well taken—I will certainly take it back and look at it—but I propose to write to all hon. Members in the coming weeks to begin to set out what I think the timetable will be. We will have further, final revision of that timetable in the autumn, and I will write again to hon. Members. If questions are raised by hon. Members’ constituents—if people are worried about suddenly losing television pictures and issues of that sort—we will want to satisfy them, and working together with Digital UK, I am sure that we can get this right.
I thank my hon. Friend for coming to Carlisle and addressing the conference on the digital switchover—it was very much appreciated—and for saying that his Department will co-operate with the parliamentary Committee that will be set up to look at it. The Border Television area, part of which I represent, will be the first to switch over in 2008. I understand that the pilot scheme that was recently carried out in Bolton has now reported. Are there any lessons that people in the Border Television area can learn from the results of that pilot?
I thank my hon. Friend for chairing an excellent conference a few weeks ago, which I enjoyed attending. He is right that Border will be the first region where digital switchover will happen. We know from the pilots so far that 97 to 98 per cent. of people in Bolton who experienced switchover liked it. We also found that it was the oldest people and those who are the most severely disabled who had a problem, so we are rightly focusing—in terms of practical help, call centres and targeting of resources—on those whom we believe are most likely to need help. We have learned a lot from the pilots and we are intending to build that into our programme for the Border region. I am sure that, before we begin the work, which after all is still two years away, there will be more lessons to be learned so that we can ensure that my hon. Friend and his constituents are not only the first chapter of the story but one of the best.
Will the Minister explain what help will be given when the analogue signal is switched off to those living in isolated rural communities who cannot receive the digital signal?
The hon. Gentleman raises an important point. We estimate that, when switchover is complete, 98.5 per cent. of the country will be able to receive digital television services. As he will know, that is roughly comparable with the number of people who can receive analogue services and we expect the 1.5 per cent. who cannot broadly to map each other, although it will not be exactly the same.
We will need to address the issue of those who will not be able to receive pictures in 2012. We are conscious of that and working on it now. It is a significant number of people. It is worth bearing it in mind, though, that 1.5 per cent. of the country does not receive television pictures. We need to improve on that and undoubtedly technology will help us in that process. We are determined to work with the hon. Gentleman and other hon. Members who may have constituents who do not receive analogue pictures so that we can bring everything we know and the technology to bear to help every constituent in the country.
Sports Facilities (Voluntary Groups)
The provision of sports facilities is primarily a matter for local authorities, which take into account local views. On top of that, there has been unprecedented investment in sports facilities over the past five years—in excess of £1 billion of lottery and Exchequer money. Much of that is now coming on stream. In addition, at the heart of the building schools for the future investment strategy of more than £40 billion over the next 15 years are sports facilities to which the community generally will have access.
I welcome that answer, but will my right hon. Friend join me in condemning Liberal Democrat Stockport council for its decision to deny the community group, Friends of Reddish Baths, the opportunity to run the beautiful Edwardian baths in my constituency—the only public swimming baths that serve the north of the borough of Stockport—despite the fact that the group has produced a superb business plan and the council’s only alternative is for the building to remain empty?
I would love to condemn the Liberal council, but I will refrain from doing so, because I can tell my hon. Friend that the local authority has now gone into partnership with the Friends of Reddish Baths and agreed to join the group in meeting the cost of a feasibility study on options for replacing the baths in Reddish, and will help with the bid for the capital cost of any replacement. I hope that common sense is now prevailing and that some agreement can be reached so that they can continue to have that facility in Reddish. That would be on top of one of the biggest investment programmes in swimming pools—in excess of £250 million invested in swimming complexes over the past eight years.
Does the Minister accept that, given the reduction in and redistribution to sports of funding for good causes, voluntary groups in particular have lost out? Will he therefore ensure that funding for good causes is increased to the original 25 per cent?
That is fundamentally wrong. A huge amount of investment is going into sport, well beyond that coming from the lottery that is directed to Sport England. As I said, building schools for the future is one of the biggest investment programmes in sports facilities. The investment via local authorities is over and above that from Sport England. Our investment in schools and the school sport partnership is the biggest investment. There will be 3,000 school sports co-ordinators. That means a teacher having two to three days a week backfilled by another teacher, which is a huge investment.
On coaching, we will have 3,000 community coaches on the ground by the end of next year. We are talking about the biggest investment in coaching, led by sports coach UK. The overall investment in sport is definitely the largest that we have seen and makes up for some of the massive under-investment under the Conservative Administration, who sold off playing fields, under-invested and cast sport aside.
My right hon. Friend is correct to highlight the record investment, but, rightly, the question was about the role of volunteers in sport. Does he acknowledge that sports volunteering makes up 26 per cent. of all volunteering? We still have problems in terms of access for many people, the number of Criminal Records Bureau checks and numerous bits of red tape that get in the way of people volunteering at local level. Will he ensure that, at every stage, volunteering is made easy for local people who just want to contribute to their sports club or sports arena, or to contribute through the schools that he mentioned? Will he get rid of as much of the unnecessary bureaucracy as possible to make things easier for people?
I agree with my hon. Friend. Some of that red tape is important because of the safeguards that it provides for parents and those involved in sport, but the Russell report made clear to the Government what really needs to be done not just to get the investment, but to build the capacity in volunteering. We are taking that seriously and I hope that, over the next few months and years, we will build an infrastructure for volunteering that will be second to none. I acknowledge what my hon. Friend is saying, but the investment in volunteering—directly, through the governing bodies and through the Learning and Skills Council—is to be commended and will reap great dividends.
Television Licence Fee
In line with the commitment in the Green Paper, the Government are conducting a funding review to determine the level of the licence fee to apply from April 2007 and we will announce the outcome of that review later this year.
Many of my constituents, and I believe a great many others, are unhappy with the licence fee. There is a general feeling that it does not provide value for money and that the BBC no longer delivers the high-quality public service broadcasting that it once did. Does the Minister consider that, in today’s digital age, when, for instance, one can receive television pictures on mobile telephones, a compulsory tax on television ownership is the right way to deliver high-quality public service broadcasting in the 21st century?
The hon. Gentleman makes a point that I am sure reflects the views of a minority of people. The majority of people are extremely satisfied with the service that the BBC produces. We have concluded that the right way to proceed for the foreseeable future is through the licence fee. When he and the leader of his party go around caricaturing the BBC, as in a recent speech made to the Newspaper Society by the right hon. Member for Witney (Mr. Cameron)—[Interruption.] I remember it well. When the right hon. Gentleman made that speech, he caricatured the BBC and claimed that it squashed all sorts of businesses. The BBC has been a source of, and a benchmark for, the greatest broadcasting anywhere in the world. We are determined to get the review of the licence fee right to ensure that people in this country will have the finest broadcasting and the best public service broadcasting. We will not allow any kind of politics to interfere with that.
The Gambling Act will introduce one of the strictest regulatory regimes anywhere in the world. The Gambling Commission is conducting a study into the prevalence of gambling and will report next year. That study will provide the baseline against which we can measure future trends.
Jim Callaghan was also a realist and he faced up to the responsibilities of government. That is indeed what this Government have done, which is why we had the Budd report, the playing for success initiative and the 2005 Act. The Act brought in the new regulatory authority, the Gambling Commission, and if we had not introduced that, we would have exposed a lot of this country’s population to online gambling and remote gambling over which the Government had no control at all. The Budd report and the 2005 Act were instigated to give the Government—and, indeed, Parliament—the ability to intervene when necessary. If we had not done that, we would have been irresponsible, and even Jim Callaghan would not have thanked us for that.
Is my right hon. Friend aware that most hon. Members have confidence in his and the Department’s ability to bring the proper regulation of gambling into operation? Is he further aware that the provisional shortlist from the casino advisory panel has caused dismay throughout the midlands because there is a yawning gap in the proposals for the super-casino? I declare an interest as a shareholder in, and director of, Coventry City football club. It is clear that Coventry’s bid stands pre-eminent among those from the midlands, especially the west midlands. Will my right hon. Friend give us an early opportunity to make representations to him and the advisory panel so that we can stress the great benefits that such a development could bring?
I thank my hon. Friend for the vote of confidence that he gave my Department and me in being able to implement the Gambling Act 2005. The decisions on the casinos were made against the background of the Opposition forcing the number of regional casinos down from eight to one. I stress that an independent panel sat and made the judgments that have come back to the Government and my right hon. Friend the Secretary of State. The Secretary of State and I will meet my hon. Friend the Member for Coventry, North-West (Mr. Robinson) so that Coventry can put its case to us.
Is it not a fact that, in yet another example of what we have come to recognise so well as a lack of joined-up government, the Minister’s Department is still using a different estimate of the number of problem gamblers from officials in what was the Office of the Deputy Prime Minister? Is it not also the case that the Gambling Commission has not even commenced work on a prevalence study on problem gamblers, which, in any case, will now report only after the green light for the casino pilot and the massive growth in online gambling? Given that we have no firm criteria for judging results, will the Minister tell us what will constitute the success or failure of the regional casino?
I do not accept that the point on which the hon. Gentleman predicates his question is a fact. As I told the House, the prevalence study is under way and will report. Pilot schemes are being instigated, so we will learn from them. We take the baseline seriously, which is why the prevalence study is wide and detailed and will give sound information with which we can measure future trends. The hon. Gentleman asks about success, but this country has the lowest levels of problem gambling and, as I have said, we embodied the principles of the Gaming Act 1968 into the 2005 Act, along with establishing the regulator, the Gambling Commission, which probably has more powers to intervene than any other regulatory authority in this country. Indeed, many people abroad are examining the way in which the commission will be operating.
I am somewhat surprised by the Minister’s complacency. Last week, the Secretary of State candidly admitted that she had presided over an “explosion in online gambling” and said:
“as things stand it’s an explosion over which we have very little control”.
She went on to say:
“we will be persuading those UK operators who currently operate offshore to come onshore to be properly recognised”.
Can the Minister tell us how many such companies are trading in the United Kingdom? Will he provide examples of what he has in mind to induce those companies to come onshore? What action will he and the rest of his Department take if the companies do not do so?
Obviously, she did so, but that is why we put the Act on the statute book and why we will intervene through the Gambling Commission. Yes, we want companies to come back onshore: we have the best regulatory authority in the world, so we can protect both the vulnerable and the punter. We can keep crime out of gambling—that is what the Act is about, and it provides Government with the ability to intervene to protect citizens. The hon. Gentleman ought to look at the Act again to find out the real reason why we put it on the statute book.
Electoral Commission Committee
The hon. Member for Gosport, representing the Speaker’s Committee on the Electoral Commission was asked—
Does the hon. Gentleman think that experience of the political process is a valuable asset to a body that deliberates on, among other things, the funding and organisational practices of political parties? Does he consider that the practice of recruiting only people who have not had any active involvement in any political party for the 10 years before application may not be the best use of those potential assets to the commission?
I know of the hon. Gentleman’s interest and recently read an article that he published on the subject. The 10-year rule and the other disqualification criteria for the appointment of commissioners and commission staff were determined by Parliament when it passed the Political Parties, Elections and Referendums Act 2000. However, as he may be aware, that aspect of the Act is being reviewed by the Committee on Standards in Public Life in its inquiry into the Electoral Commission. It is a subject, too, about which the Speaker’s Committee has expressed concern, as the minutes of the July 2004 meeting reveal.
The hon. Gentleman will know that, under the previous Government, the Widdecombe commission looked at restricting the political activity of people in particular positions. Will he examine that when considering into what the Speaker’s Committee can make inquiries, because many of my friends believe that that places an undue burden on their right to pursue a passive interest in the political process?
The hon. Member for Middlesbrough, representing the Church Commissioners, was asked—
There are no European Union funds principally for the restoration of historic churches and cathedrals. The best thing that the European Union can do for us is to reduce VAT on church repairs. The church heritage forum is developing close partnerships with funding and fundraising bodies and disseminating information to church and cathedral authorities to assist in the upkeep of historic churches and cathedrals by way of a stitch in time.
As the hon. Gentleman said that there are no funds available, I am inclined to ask, why not? Churches in the United Kingdom provide heritage that is of great European importance. Will the commissioners go to the other Commission and say that money is required, not only for great cathedrals such as Lichfield but for churches all over the country, as that heritage makes Europe so very different?
I am grateful to the hon. Gentleman. [Interruption.] The House is in an hilarious mood. Compared with other parts of Europe, United Kingdom churches and places of worship are poorly funded. We recommend that some public funding should be available in recognition of both the contribution that they make to the community and of the cost of their upkeep.
I support the views of the hon. Member for Lichfield (Michael Fabricant) but, I visited Notre Dame and Sacré Coeur last week—[Laughter.] As well as going to Leicester. Those are not just places of worship but places of great tourism. It is important to see whether European initiatives can be co-ordinated to support not just churches but places of worship for people of other faiths that have been turned into great tourism centres.
That was more a statement than a question, but I will take it as a question from my hon. Friend. As the Bishop of London said in another place,
“In other European countries, a more realistic contribution to the maintenance of the historic fabric seems to be possible, in view of the considerable social benefits that church buildings offer to the whole community.”—[Official Report, House of Lords, 25 October 2004; Vol. 665, c. 1146.]
That may explain why our European Union partners see little need for central European restoration funds.
I am grateful to the hon. Gentleman for referring to that campaign. English Heritage recently announced grants of £17.5 million to listed buildings, but that should be set against £328 million of repairs outstanding in Anglican churches alone in 2003, and the £101 million actually spent on repairs in that year. The English Heritage “Inspired!” campaign to which he refers has also called for more state funding.
Ecclesiastical Appointments (Women)
In July, the General Synod will debate whether it wishes to proceed to legislation and, if so, on what basis. The Church will need to decide at each stage the speed at which it wishes to proceed, but it would in any event be at least four years before the final approval stage is reached.
As my hon. Friend knows, meetings are taking place this week with the bishops to try to find a way forward on the matter. Does he recognise the strong body of opinion that exists in the Church in support of women bishops, and will he do everything in his power to ensure that proposals are brought forward quickly, including to this place? Everybody would want them to be made well within four years.
My hon. Friend’s concern reflects the frustration felt by many right hon. and hon. Members. The Church, however, needs to give the matter careful consideration. Not everyone in the House, I would surmise, agrees with my hon. Friend. Synod needs to recognise and respect the integrity of differing beliefs and positions, and to weigh issues of theology and unity with arguments of justice. Even the Synod, when it comes to a conclusion, must vote by a majority of at least two thirds in all three of its sections.
It would be more apt if the hon. Gentleman said, “A little too late”, since we have had women priests for some years. However, there is a dilemma within the Church that must be resolved in its own time and at its own pace. Although the messages that we give from the House are reflected in decisions in the Synod, we will continue to press on the issue to reflect the point made by my hon. Friend the Member for Northampton, North (Ms Keeble) and by the hon. Gentleman.
Electoral Commission Committee
The hon. Member for Gosport, representing the Speaker's Committee on the Electoral Commission, was asked—
The Electoral Commission discharges its statutory responsibility for promoting public awareness of electoral and democratic systems through programmes of education and information. The Commission has also made a number of recommendations for changes to the law, aimed at increasing participation.
I cannot be the only Member to have noticed the sense of pride and of fulfilling a rite of passage that many young people feel when they vote for the first time. It must be the view of Members in all parts of the House that we need to encourage a culture of participating in elections. Will the hon. Gentleman ask the Electoral Commission to consider the value of issuing something like a flag day emblem to everybody who votes, and possibly taking a leaf out of the blood transfusion services’ book, so that when people have voted a number of times—when they become regular voters—they get some permanent emblem?
The hon. Gentleman will be aware that participation in local elections has increased slowly in the past three years, which is welcome. Will he commend to the Speaker’s Committee on the Electoral Commission these two ideas, in which the Department for Constitutional Affairs appears interested: first, holding a countdown to democracy day to encourage people to register in time to vote and, secondly, introducing a campaign to publicise the last day for postal voting? If those two things were to happen, many more people would be able to vote.
The commission’s total budget for public awareness in 2006-07 was £7.379 million. The commission spent £3.65 million on advertising activities associated with the elections in May 2006. It is open to new ideas, and I will pass on the hon. Gentleman’s suggestion.
Does the hon. Gentleman agree that one of the best ways to increase participation in elections is to ensure that polling stations are conveniently located for voters? The Electoral Commission should consider issuing clear guidelines on how far voters are expected to walk to a polling station. In the last local election in my constituency, the London borough of Barnet placed one polling station in a marginal ward about 40 minutes’ walk away from a less well-off area and right in the middle of a more well-off area, which gerrymandered the result.
I know that the Electoral Commission takes the view that it is not possible to specify the maximum distance that an individual should walk to a polling station. However, the Electoral Commission is involved in such issues. For example, it has recommended a change in the last date for registration, so that it is closer to the date of an election, and it has also recommended clearer powers for returning officers and registration officers to encourage participation at a local level, which relates to the hon. Gentleman’s question.
The hon. Member for Middlesbrough, representing the Church Commissioners, was asked—
Ecclesiastical Appointments (Women)
At the end of 2004, there were five female archdeacons, two female deans or provosts and 14 other female cathedral clergy.
It looks as though the Church of England is slowly moving towards women bishops, but progress is far too slow. Many women who work in the Church would do a far better job than many of the current bishops. Will my hon. Friend tell the Synod on behalf of this House that we want women bishops as soon as is humanly possible and, for that matter, as is divinely possible? Will he point out to the bishops that, although every one of them voted with the archbishop for the ludicrous apartheid system, seven of them have subsequently written personal, private letters to me saying that they will not support those measures? Can we make sure that there is no apartheid on this issue and that women are treated equally in the Church?
I am grateful to my hon. Friend for that question. If I can steer him back to deans, canons and archdeacons, he has said that
“the number of women ordinands is rapidly catching up with the number of male ordinands.”—[Official Report, 13 June 2005; Vol. 435, c. 15.]
May that process continue and eventually lead to women bishops.
Nearly half the clergy latterly surveyed stated that their standard of living was equivalent to or above that of the majority of households in their parish. By way of a statement, the average stipend increased by 25 per cent. between 1999 and 2005, compared with an increase of 16 per cent. in the retail prices index and 27 per cent. in average earnings.
Does my hon. Friend really believe that a parish vicar’s pay is substantial, given that a vicar must look after their family and will need a house at the end of their service? The pension should meet the number of years that a vicar has put into the Church in order to provide for quality of life.
I am grateful to my hon. Friend for relating his question to pensions. As I told the House on 24 April, the Church is reviewing its pensions arrangements. On the stipend, he will be aware that most clergy are provided with housing, including the payment of their council tax, water charges, maintenance, external decoration and insurance, and a non-contributory Church pension. There is no such thing as a parish priest who is as poor as a church mouse.
This year’s joint allocation from English Heritage and the Heritage Lottery Fund for repair grants for listed places of worship is £25 million, while the VAT grants scheme reimburses about £12 million per year. By way of a statement, and to put these sums in context, in 2003 the cost of major repairs was £101 million.
Will the hon. Gentleman confirm that that amounts to a radical cut in heritage grants from last year? Has he had the opportunity to make representations to the Chancellor of the Exchequer to apply for a reduced rate of VAT, or have the Church Commissioners considered doing what is done in Denmark by imposing 1 per cent. on income tax for all those who practise at the state church?
The first part of the hon. Lady’s question deals with a Government Department. It is for the Department that deals with heritage to say whether the English Heritage grant has been cut. However, I can tell her that English Heritage estimates that the cost of repairs to listed places of worship, 80 per cent. of which are Anglican churches, will be £925 million over five years, or £185 million a year. We are raising the question of funding for church repairs with the Chancellor, but I would not be so bold as to invite him to add 1 per cent., or 1p, to income tax.
Point of Order
On a point of order, Mr. Speaker. You will be aware that Culture, Media and Sport questions overran for about five minutes. I am grateful that you permitted that in order to enable my hon. Friend the Member for East Devon (Mr. Swire) to ask his two questions. However, may I ask your department to conduct an analysis of the tape and consider the length of answers given by the Secretary of State and other Ministers in the Department for Culture, Media and Sport, and, possibly, Ministers in other Departments? The answers seemed extremely long in places, and although I do not argue that their quality was bad or good, the length was excessive.
Orders of the Day
NHS Redress Bill [Lords]
[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.
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?
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.
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 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.
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.
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.