As amended in the Standing Committee, considered.
[Relevant documents: Third Report from the Constitutional Affairs Committee, Session 2005-06, HC 754, on Compensation Culture; Fifth Report from the Committee, Session 2005-06, HC 1009, on Compensation Culture: NHS Redress Bill; and the Government’s responses thereto, Cm 6784.]
New Clause 1
General duty to promote resolution under scheme
‘A scheme must include provision requiring the scheme authority and the members of the scheme, in carrying out their functions under the scheme, to have regard in particular to the desirability of redress being provided without recourse to civil proceedings.’.—[Mr. Simon.]
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.
I am delighted to move the motion, and I declare an interest as a trustee of AvMA––action against medical accidents––the leading patient safety charity in this country. I speak to the new clause as a Member of Parliament and not on behalf of that organisation, with which I cannot and do not formally speak. However, I know that, like me, AvMA is grateful to the Minister for having listened to our concerns and those of patients across the country, and many other patient and consumer organisations and other stakeholders, about the original provisions of the Bill and for acting on them, as evidenced by not just my new clause but the Government’s amendments, both those that they have tabled today and those that were tabled and made in another place. We are also grateful for the Government’s attitude in Committee, which I think Members will agree was, broadly speaking, most of the time a very constructive and cooperative place.
I mentioned the other Government amendments because my new clause makes sense, and has the force that I believe it can have, only if it is viewed in the context of the other amendments tabled, here and in the other place, by the Secretary of State. Collectively, I hope that they represent a tangible and real response to the three big calls that have been made: first, for measures of independence to be brought to bear where necessary to resolve disputed cases within the NHS redress scheme; secondly, for specialist legal advice or representation to be available, where appropriate, to empower patients—I use the word “empower” rather than “entitle”, which I know, in the context of this NHS scheme, the Minister does not like—within this NHS process; and thirdly, for measures to ensure that patient safety lessons are learned and implemented and seen to be learned and implemented.
By placing a general duty to promote resolution under the scheme, my new clause seeks to ensure that all the provisions already made possible by the other amendments will have to be considered before proceedings can be finalised. The new clause appears to be quite general, bit I think it can be very powerful, because it is an enabling measure that gives force to all the other amendments that have been made, here and in another place. Crucially, it would mean that where the NHS scheme member’s initial conclusion is not to offer redress but the patient feels, having received independent, specialist legal advice to that effect, that they should be eligible, consideration would have to be given to the use of joint instruction of medical experts as a means of seeking resolution, because—the Minister looks at me quizzically, but I know that he will agree with my “because”—all possible instruments within the scheme would have to be examined and eliminated before having recourse to civil proceedings. In some disputed cases, that might well result in bringing independence to bear on the assessment of eligibility for redress, rather than just establishing the facts of what happened, as others, not least on the Opposition Benches, have sought.
In some such disputed cases, it would mean that the patient was empowered through specialist legal advice and representation jointly commissioned from independent sources, but within the scheme. If an independent medical expert assessed that there was negligence and causation, the expectation would be bound to be that there would be an offer of redress.
The new clause and the amendments—largely the Government amendments—made here and in another place would help to ensure that patient safety lessons were learned and implemented if the independent medical expert identified in the report the salient risk management issues. In other words, the positive experience from the resolve pilot in England and the speedy resolution pilot in Wales would be put to good use, just as I argued—with some sympathy across the House—on Second Reading and throughout the Committee stage.
The crucial point is that the original ethos of the scheme—putting the emphasis on the NHS itself and recognising where it has been negligent, and the NHS proactively putting things right and offering redress within its own owned NHS scheme—would be safeguarded, empowered and furthered by the new clause. The process that I have described of joint instruction would be necessary only if and when the NHS’s assessment did not tally with that of the patient and the legal adviser. That is my interpretation of the overall effect of this enabling new clause and of the combined effect of my new clause with the various Government amendments that it seeks to enable. I would be grateful for a few words from the Minister—I have no doubt that they will be forthcoming—about how that tallies with his interpretation. Kindly, he has already written to me about that so I have an idea of what he might say. Given the effect of the new clause and the amendments that it seeks to enable, I believe that we have the framework of a scheme that could enjoy public confidence and deliver real benefits to patients and the NHS.
We have made it clear that we support the sentiment behind the Bill and therefore we have no problem in supporting the sentiment behind the new clause. In many ways, it is inherently obvious and what it says goes without saying. It could be argued that that raises the question of why it has to be included in the Bill. The Minister will be fully aware that we welcome and support the good intentions underlying the redress scheme. Our problem is that we have difficulties with some of the detail and content of the operation of the Government’s proposed scheme.
It is ironic that the new clause refers to
“the desirability of redress being provided without recourse to civil proceedings.”
In many respects, and with due respect, those words could be construed as misleading. If the Government have their way, the redress scheme will replicate the difficulties of the civil litigation scheme instead of representing a genuine alternative to litigation. That is anything but desirable. The Government are proposing that the role of lawyers be extended to any stage prior to the offer, including the joint instruction of medical experts. However, the redress scheme is not conceived as a judicial process, so the question of legal representation should not arise. Legal rights are not being asserted or defended. Thus there will be lawyers involved in a process that is non-determinative and non-binding. The scheme will not ensure the closure, certainty or finality of a court process. It will attract the problems of civil legal proceedings, such as expensive lawyers, protracted cases and complexity, without the good aspects of the judicial process, such as finality and independence. It is, in many respects, a lose-lose situation.
I suggest to the hon. Member for Birmingham, Erdington (Mr. Simon)—I think that he almost conceded this point in his remarks—that the new clause is legally meaningless. As a matter of statutory construction, it merely provides for an expression of good intent. It does not bestow any legal rights. It neither confers a power nor prescribes a duty. Instead, it expresses a requirement that there must be regard to
“the desirability of redress being provided without recourse to civil proceedings.”
In legal terms, it is meaningless. It is not enforceable and would not appear to give rise to legal remedies, whether in public law or private law. In many respects, his new clause is empty. It does not bring anything new to the Bill or to the present situation as it stands. The NHS Litigation Authority, for example, has always had the power to settle cases. The health service has always had the power to resolve claims without recourse to civil proceedings. In short, because the provision will have little basis in reality if the Government have their way, we suggest that the new clause is unnecessary. It is a bit of waste and so we will not waste the House’s time in forcing a vote on it.
I thank my hon. Friend the Member for Birmingham, Erdington (Mr. Simon) for the constructive way in which has engaged with me and the Department on the Bill. I thank him for facilitating the meeting that we held with AvMA between the conclusion of the Committee and today’s proceedings. To complete the tribute to him, I should compliment him on his parliamentary drafting skills, which are clearly excellent.
As I understand it, the new clause imposes a general duty to promote resolution under the scheme. Under the new clause, a duty will be imposed on scheme members and the scheme authority to have regard, when carrying out their functions under the scheme, to the desirability of settling the case. Scheme members and the scheme authority should have particular regard to the desirability of settling under the scheme, rather than leaving cases to be pursued through the courts.
I welcome the new clause and the approach that my hon. Friend seeks to achieve through it. He is right to say that it should be seen in the context of the Government amendments. I should say to hon. Members, including the hon. Member for Romsey (Sandra Gidley), that we have listened between the Committee stage and the Report stage. We have taken on board comments made by hon. Members on both sides of the House and we believe that the Bill will be strengthened through making those amendments. In my view, the new clause reinforces the positive front-foot spirit that we want the Bill to encourage.
The Bill and the redress scheme to be established under the powers in the Bill aim to open up access to justice for the less articulate, the less wealthy and those who traditionally would have been fed up and abandoned the legal process before a case was completed. Under the new clause, if providers of NHS services believe that there might be a case of negligence, they would be expected to take cases forward. An active approach to redress will be required under the scheme. To be effective, it is important that the NHS is not defensive. The NHS must do all that it can to identify and, where appropriate, resolve cases falling under the scheme.
My hon. Friend the Member for Birmingham, Erdington was absolutely right to say that the spirit of the Bill is about empowering patients, providing information to them and ensuring that we address their needs when harm has been done. I urge him to see the Bill in the context of other reforms that the Government are making in the national health service to ensure that it is a service that focuses on the individual patient and that patient’s experience of the health service, and on ensuring that, when things go wrong, redress to the patient is the thing that matters. I am confident that the NHS redress scheme has the potential over time to effect culture change in the NHS, although I readily acknowledge that that is never an easy thing to achieve. There will be scheme members who are already taking an active approach to complaints and to clinical negligence cases. Some organisations will be prepared to be open and honest, and will embrace the principles of the redress scheme, but there will be others who may continue to be defensive, drag their heels and have a less than positive approach to these matters. We need to do all that we can to ensure that that does not happen.
Does my hon. Friend agree that although the new clause is subtle, and its scope and extent may not therefore be immediately apparent to everybody, it is a powerful and significant addition to the Bill because it fundamentally changes the obligations on scheme members? It is not at all empty or meaningless, as the hon. Member for Billericay (Mr. Baron) claimed. It is subtle, for sure, but it is powerful and complex, and it fundamentally alters the presumptions that will now legally have to inform the actions and attitudes of scheme members.
My hon. Friend sums up the new clause extremely well. It is not at all empty or superfluous, as the hon. Member for Billericay (Mr. Baron) sought to claim. It does indeed involve a wide, general duty, but it sets the whole tone for how scheme members should carry out their duties and use the measures and avenues that the scheme puts at their disposal. In making decisions, they are at all times legally required to consider the desirability of concluding matters under the scheme. I emphasise to the hon. Gentleman the word “concluding”, because there is a need for finality, and for giving patients an early apology and explanation of the steps being taken to prevent incidents from happening again. All that is enshrined in the new clause.
I am anxious to avoid cases being brought under the scheme, only for some of the old thinking to prevail so that at the point at which they may be settled they are pushed into the legal process. That would lead to duplication of expense and resource, which would not be in the interests of the taxpayer. I believe that we will avoid that by having a clause that promotes the desirability of settling. I am sure that hon. Members in all parts of the House can think of cases, not only in the NHS but in other parts of the public sector, in which individuals have been stonewalled and pushed into pursuing a legal action against a public body, possibly in the hope that they will get fed up and give up, having been ground down by the seemingly interminable process in which they find themselves. That process, which comes about because individuals in organisations will not accept that they have made mistakes and apologise for them, can be extremely wasteful of public resources. It can also ruin people’s lives because they become consumed by a case that ultimately has to be pursued through the courts. As I understand my hon. Friend’s new clause, it is precisely that situation that it seeks to avoid.
The new clause signals that the redress scheme is not simply a process parallel to that in the courts but is intended to be the primary means by which disputes arising out of NHS hospital services are, where reasonably practicable, to be resolved, rather than leaving cases to be pursued through the courts. It is drafted in general terms, imposing a general duty to promote resolution. My expectation is that at each stage of the proceedings, the scheme member and/or the scheme authority, if they are considering giving up on the scheme for a specific case, must have regard to the desirability of settling under the scheme. At that point they should consider the means that they have at their disposal, such as the joint instruction of medical experts, and positively consider whether it would be right to take that course of action given the desirability of settling and the awareness that the case may continue by the legal route.
The new clause is entirely in keeping with the spirit of the Bill that we have put before the House. It is consistent with the open learning culture that we want to see in the NHS, in which mistakes are identified and acted on at an early stage and in which redress is offered as early as possible. In reinforcing that duty, the new clause adds significantly to the Bill, and I am pleased to signal to my hon. Friend that the Government are prepared to accept it.
Question put and agreed to.
Clause read a Second time, and added to the Bill.
Redress under scheme
With this it will be convenient to discuss the following: Government amendments Nos. 9 and 10.
Amendment No. 4, in clause 6, page 4, line 23, at end insert—
‘(g) about the publication of a report of the independent investigation in accordance with paragraph (a)’.
Government amendments Nos. 11 and 16 to 18.
In Committee, the point was well made, particularly by the hon. Member for Romsey (Sandra Gidley) and my hon. Friend the Member for Stoke-on-Trent, Central (Mark Fisher), that patients harmed during their NHS care often say that they do not want it to happen to anyone else. I have never been at odds with that statement. Those are normally the first words out of the mouths of people presenting at our constituency surgeries when they seek to pursue a case and confront the NHS with the harm that they have suffered through its failings. For many individuals, redress and closure—to use that terrible word—may often mean being clear in the knowledge that measures have been or will be taken to ensure the mistake does not happen again.
I was asked by the hon. Lady and others to consider an amendment to the Bill to provide for a report on action to be taken to prevent similar cases arising in the future, and for that report to be made available where appropriate. I am pleased to say that, having considered this matter carefully, I have tabled such an amendment. The amendment, to clause 3(2), provides that redress will now ordinarily include the giving of a report on the action that has been or will be taken at local level to prevent similar cases arising.
As was accepted in Committee, there will be occasions where mistakes can simply be ascribed to genuine human error—mistakes where no procedural changes need to be made and where a report of this type will not be appropriate. As I said in Committee, we must be careful about placing extra administrative burdens on the NHS. I believe that the hon. Lady accepts that caveat. In these specific types of circumstance, the scheme may provide that a report will not be necessary, although ordinarily such a report will now be provided. Therefore, not only will scheme members publish an annual report about lessons to be learned from cases under the scheme, under clause 10, but the redress offered to individuals under the scheme will now ordinarily include a report on the specific action to be taken to prevent a similar mistake happening again in that patient’s individual case. I think that that was what the hon. Lady was urging me to do, and she was right to do so.
On amendments Nos. 4, 10 and 11, I listened carefully to what was said in Committee, particularly by my hon. Friend the Member for Birmingham, Erdington (Mr. Simon), about the reasons why investigation reports should be provided to individuals if requested. He focused on the importance of providing the full facts, not only to those to whom offers are made under the scheme, but to those to whom an offer is not made and whose case is terminated. He spoke about the sense of grievance that people may experience if they are not eligible for redress and he explained why they should, if they so wished, be provided with the facts and the outcome of the investigation, so that they could understand why they were not entitled to the redress that they sought.
Amendments Nos. 10 and 11 require the scheme to provide for the findings of an investigation to be recorded in a report, and for the report to be made available to the individual seeking redress on request. As I stressed in Committee, clause 3(2) already ensures that an explanation will ordinarily be provided under the redress scheme. It will be a full explanation, and we envisage that in a number of cases—particularly the more straightforward—the patient will be satisfied with that explanation. We want to reduce unnecessary bureaucracy for scheme members, and we do not wish to impose on them the extra burden of providing the investigation report in every case. In some—perhaps many—cases, an explanation may be adequate, but our amendments ensure that, if it is requested, the investigation report will ordinarily be provided.
The amendments enable the scheme to provide that the report need not be made available before an offer is made, or before proceedings are terminated. That, too, is intended to reduce the administrative burden on scheme members. Providing investigation reports at an earlier stage may result in increased correspondence and delay. It is envisaged that when the offer of redress is made, a copy of the investigation report will be sent to the individual, if they request it. That will give the individual a complete set of documentation that they can consider with their legal adviser when the offer under the scheme is assessed.
The amendments enable the scheme to specify other circumstances in which reports need not be provided. That covers rare cases, such as those in which the person seeking redress is not the patient, so it is considered appropriate to withhold certain confidential health information. Including in the Bill an explicit requirement that investigation reports generally be provided to individuals is in the spirit of openness that the scheme seeks to engender. That will reinforce our messages about more open apologies and explanations.
In Committee, the Bill was criticised because it was said that the investigative process could not be transparent if its findings were not open. I hope that the amendments satisfy hon. Members that we fully intend the investigative process to be transparent. There is no question but that investigation reports will generally be available, if requested. That will be in addition to the explanation provided to the individual complainant. I would like to make it clear that the investigation report will not be kept back on the ground that it is privileged, nor will it be claimed that investigation reports are “without prejudice” and inadmissible in any subsequent legal action. That matter was raised in Committee by the hon. Members for Billericay (Mr. Baron) and for Eddisbury (Mr. O'Brien), and I am happy to give an assurance on that point.
The power in proposed new subsection (2B) is an enabling power. Under the scheme, no report need be provided until an offer is made, or until proceedings under the scheme are terminated. As I have said, the intention is to reduce the administrative burden on scheme members, but in clause 15 we have a specific power to make different provision for different cases, and to exercise powers “subject to exceptions” or
“in relation to any particular case or class of case.”
The power to restrict the provision of investigation reports may therefore be exercised only in relation to particular cases or a class of cases. Our intention is that the power will not be exercised in cases in which it is appropriate for a joint medical expert to be instructed. However, it does not prevent investigation reports from being provided until the final stage. My hon. Friend the Member for Birmingham, Erdington was concerned about that problem, but I can assure him that the Government amendments do not require reports to be provided at the end of the process in all cases. There is flexibility in the Bill so that investigation reports can be provided to individuals at an earlier stage if that is deemed necessary. He was right to press me on the issue, because if people are to make an informed judgment on the instruction of a joint medical expert they need to see the contents of the investigation.
The Government amendment further weakens the need for independent investigations—a subject that we will debate in the next group of amendments. However, there is no question but that investigations will be open. The actions of scheme members in conducting the investigation, the scope of the investigation and the processes followed will be open and subject to scrutiny. We have introduced a general duty to promote resolution by accepting new clause 1, which deals with the desirability of settling, and the amendment clarifies the need for openness and transparency. Taken together, the provisions strengthen further the NHS redress scheme.
Turning now to Opposition amendment No. 4, hon. Members will realise from my earlier comments that I agree that investigation reports should generally be made available to individuals. I am afraid to tell the hon. Member for Billericay that I reject his proposal for a number of reasons, although I accept that it attempts to achieve a similar goal to our provisions. First, Government amendments Nos. 10 and 11 go further than his amendment, which enables the scheme to provide for reports to be made available but does not require it to do so. If the power is not exercised, the scheme could not make provision for the publication of investigation reports. The Government amendments require the scheme to provide for reports generally to be made available when requested.
Secondly, the amendment refers to
“the publication of a report”,
but I do not believe that publication is appropriate. Investigation reports deal with an individual’s health care and contain personal, often confidential, information. It is right that they should be made available to the individual whose health care has resulted in harm, but it is not right that they should be more widely available. Even if anonymised, some scheme members will have so few redress cases, or so few cases of the kind described, that the individual patient could be identified in a published report.
We obviously accept that the publication of a report on an specific case could reveal an individual’s details, but if the NHS scheme repeatedly finds categories of problems—clearly, we hope that the national patient safety agency or another body would identify such categories anyway—is there a mechanism for systematic learning from groups of cases when confidentiality is not an issue?
The hon. Gentleman is right to raise that point. I can reassure him that there is provision under the Bill for such a report to be compiled on an annual basis by scheme members. Under clause 10, duties are imposed on members of the NHS redress scheme. Subsection (2)(j) contains a requirement to produce an annual report and the lessons to be learned from it. We are making a further amendment on that point.
There is an expectation that scheme members will look in the round at cases that they have dealt with in the past year under the NHS redress scheme and, as the hon. Gentleman says, draw general conclusions and lessons from such cases and put that information into the public domain for local people to consider. However, in response to the amendment tabled by the hon. Member for Billericay, we argue that it would be wholly inappropriate for the report on an individual’s health care to be placed in the public domain by an NHS trust. An individual may choose to do that following the receipt of such a report, but that could not be mandated under the Bill. The general point made by the hon. Member for Northavon (Steve Webb) is picked up by the Bill further on.
The third problem with amendment No. 4 is the reference to “independent investigation”. I consider this inappropriate because we do not intend that there should be an independent investigation. We will discuss the issues around independence in due course, but for the three reasons that I have outlined, I reject the amendment.
Amendments Nos. 16 to 18 show the Government’s intention to require a member of the redress scheme to prepare and publish an annual report about cases falling under the scheme and the lessons to be learned from them—the report that I described a moment ago to the hon. Member for Northavon. I gave assurances about that in Committee.
However, clause 10(2)(j) states that a scheme may
“require a member of the scheme to prepare and publish an annual report about such cases and the lessons to be learnt from them.”
I was asked in Committee by the hon. Members for Beverley and Holderness (Mr. Stuart) and for Ruislip-Northwood (Mr. Hurd) to accept that there should be a guarantee written into the Bill that annual reports will be provided. Being a partisan soul and one who, in very rare circumstances, considers himself likely to accept Conservative amendments to any Government legislation, I find myself in an extraordinary position. The hon. Gentlemen made a reasonable suggestion, and the amendments that we have tabled are a response to their sensible argument and the constructive discussions that we had.
Indeed, it is desirable that such a report should be a requirement under the Bill, as suggested by the hon. Member for Northavon and the two Conservative Members. We are happy to amend the Bill to make that a requirement of membership of the NHS redress scheme. The word “may” has been replaced with “must” and the scheme must now require scheme members to publish annual reports on cases dealt with under the scheme and lessons to be learned from them.
I have covered all the Government amendments. We will resist amendment No. 4.
As we know, the amendments deal with the publication of reports and the limitation on their disclosure. We have no problem with Government amendment No. 9. It is important that lessons are learned, so a report to that effect should be produced and encouraged. Our concern is with Government amendment No. 11.
Our approach to the preparation of reports and their disclosure is relatively simple. We propose that the investigation should be limited to a fact-finding exercise. That is a discussion that we will come to later on a different group of amendments. We propose that in every case a report should be made of such an investigation and made available to the person concerned in any event, whether or not compensation is sought and whether or not an offer is accepted. If we believe that the culture of the NHS needs to change and that we need a more open, transparent and robust investigation of the facts, it is logical to expect that reports in all cases should be made available to the patients. That is what our amendment No. 4 aims to achieve.
When the stage is reached at which any offer is made, then in any reports concerned with assessment of liability the usual professional practice in respect of privilege would apply. In other words, the practice where a client and a lawyer consider the client’s legal liabilities remains confidential to the client and the lawyer. This solution is a logical consequence of separating fact finding from fault finding.
The Government’s solution to that is partly set out in amendment No. 11. It refers to an investigation report, but it is not clear whether that report is fact finding, fault finding or both. I ask the Minister to reflect on that as it creates a functional incoherence that was described in another place as a dog’s breakfast.
It is important to be clear on that point. My understanding is that the investigation report is the document that would be prepared by the scheme member for the NHS Litigation Authority to use when considering the conduct of the investigation and the issues arising as regards quantum and liability. That document should ordinarily be provided to the individual seeking redress.
I thank the Minister for that clarification, which prompts a further question. The Minister says that the report would be produced in any case because it would be the report on which the NHSLA would base its assessment, as opposed to its determination, of liability. Under amendment No. 11, the report need not be shown before an assessment is made, where proceedings are terminated, or in other as yet unspecified circumstances. If the report is going to be produced anyway, why should not it be made available to the patient, given that we are trying to encourage a culture of openness within the NHS and that no added bureaucracy or cost would be involved? The Government’s proposal does not guarantee the disclosure of the report in every case. It is the opposite of the openness and transparency that we propose, which is needed if we are to transform the culture of the NHS. What does the Minister have to fear from patients receiving a report at the end of the fact-finding stage regardless of whether an offer is subsequently made?
I think that I have made this clear, but I am happy to do so again. In providing an offer of redress, at the end of the process the scheme would seek, if appropriate, to give the individual an apology, an explanation, a statement or a report of what action will be taken to prevent similar adverse incidents happening again, as well as a copy of the investigation report. That is ordinarily what would happen. Were a financial offer to be appropriate, that would be included too. That would be the package of redress.
My hon. Friend the Member for Birmingham, Erdington (Mr. Simon) has raised certain points privately and in Committee. He asked whether in the more complex cases, particularly where the instruction of a joint medical expert might arise, the patient would need to see the investigation report at that point. I take his point. However, in order to minimise bureaucracy and correspondence, the general intention is that all that information will be disclosed and provided to the individual at the end of the process. We believe that that is ordinarily the right way to conclude matters.
I thank the Minister for that, but ask him to re-examine Government amendment No. 11(2B), which says:
“A scheme may provide that no copy of an investigation report need be provided…before an offer is made…in such circumstances as may be specified”.
That needs clarification. I think that the Minister is saying that the investigation report produced at the end of the fact-finding stage would be made available to patients if they so requested. If that is not the correct position, he has an opportunity to put it right and to clarify what amendment No. 11(2B) means.
It is helpful to clarify those points. I said that (2B) would be necessary to cover rare cases, for example, when the person who seeks redress is not the patient and it is considered appropriate to withhold some confidential health information. I want to emphasise that the scheme is flexible. There is provision for investigation reports to be released earlier in the process to individuals when the merits of the case require it. However, they would generally be provided at the end. There is, therefore, flexibility, but the Bill sets out what will happen in the normal course of events.
Doubtless we will revert to the matter later. There is no point in questioning the Minister further. He has attempted to clarify the position, but a few questions remain about when and under what circumstances a report would be withheld from the patient.
It goes without saying that we support the proposal to prepare and disclose the report, but we oppose any unspecified and undefined overriding discretion to refuse to disclose such a report. That would not reflect patient priorities or help to change the culture of the NHS to make it a more open and transparent investigation. It would not help patients in their search for not only an explanation and an apology, but a simple and honest investigation of the facts. I am sure that we will revert to the point later.
I welcome especially amendments Nos. 8, 9 and 10 and other consequential amendments. As the Minister said, we discussed the subject at some length in Committee. He seemed genuinely engaged and said that he would reconsider the matter. I therefore thank him for doing that because it is the first time that that has happened to me in my six years in this place.
I am delighted that the Bill includes a clear statement that a report should be produced on action to prevent a recurrence of similar cases. As the Minister says, people mainly want to know that the likelihood of what happened to them recurring will be reduced. Many people’s prime motivation is not money. We need to be clear about that in our discussions today.
I, too, am concerned about Government amendment No. 11, especially proposed new subsection (2B) to clause 6. The Minister claims that there is some flexibility and that the general aim is to provide a report, but it is still not crystal clear in what circumstances the report will be provided when the scheme is about to be terminated or an offer has been made. Some guarantees about that would be welcome because, although I do not doubt the Minister’s good intentions, the Bill now includes a clause that will enable future legislators and Governments to take a step back from what the Minister appears to claim. That is worrying.
I, too, regard it as fundamental that a copy of the investigation report is available to all parties, bringing together the facts of the case as soon as possible so that everybody can reach a clear decision about what has gone wrong and the action that needs to be taken. The facts need to be on the table before we move to the next stage. Liberal Democrat Members disagree with the Government because we believe that an independent, separate stage is vital to the long-term success and acceptability of the scheme. Sadly, there will probably be further disagreement about that, but I shall not repeat the arguments at this stage.
I am worried that the report is available only on request. Although the ability to ask for a report is a step forward, I believe that the emphasis is slightly wrong. As has been said, it is not clear what extra bureaucratic burden making available a report, which has already been prepared, puts on the NHS. What reassurances will there be that patients under the scheme will even know that they have a right to ask for the report. Will that be part of the explanation process? How will they become aware of that? There is a host of legislation, but there is also a great deal of ignorance among the public about what is and what is not available. At the very least, there needs to be a clear procedure for informing a patient about any report. Perhaps there should be an opt-out rather than an opt-in, because I fully accept that there might be a small number of cases where patients, for a variety of possible reasons—they might have had a mental health problem associated with the report, or they might not want to be reminded of things—are not interested and do not want to see it. However, everybody should know that such a measure is available and be able to access it.
Amendment No. 4 has cross-party and independent support. It makes it clear that there needs to be an independent investigation and that a report of any such investigation needs to be published. It also makes it clear that that needs to be an integral part of the process, rather than merely of the end of the proceedings. The Minister has clarified that point.
Although I welcome the Government amendments, there are still a few small areas where refinements could be made to make the final version of the Bill clearer.
I, too, welcome the Minister’s comments on openness, which is essential. I welcome the fact that the report will be available, if requested, and I echo the comments of the hon. Member for Romsey (Sandra Gidley) that the right to get that must be widely publicised and known. The need for a report of the fact-finding investigation has been emphasised to me several times recently. Healthcare Commission reports have been seen by the claimant and have been very definitely disagreed with for gaps and errors, and that has led to discussion, so it is crucial that this report is available.
I am also unhappy about proposed new subsection (2B) in amendment No. 11, because I am not sure whether the Minister has sufficiently reassured me yet. Are there still exceptions at the point between the investigation and the offer? If the complainant requests the report at that time, does he still have the right to have it before the offer is made, or are there circumstances in which the report would be withheld from the complainant at that time?
I rise to support amendment No. 18 and to place on the record my gratitude to the Minister for having had, like the hon. Member for Romsey (Sandra Gidley), my first experience of a Government Minister actually listening to me—unlike at the current moment. The amendment might change only one small word—“may” becomes “must”—but that is the right thing to do, because it sends a stronger signal about the Government’s intentions and, as the Minister probably recognises, the central challenge here is how to generate trust in the Government’s proposals. Central to that is the perception of transparency and the sending of a signal that the Government understand what motivates people in this context. The Minister and other Committee members were very clear that a large part of people’s motivation is to try to make sure that what they suffered is less likely to happen to other people. An annual report will play a part in that process. I also congratulate the Minister on listening to the arguments made in Committee—principally by the hon. Member for Romsey—in favour of stiffening the requirements of explanations to include reports on further actions taken, where appropriate.
May I press the Minister on one point? In Committee, he was concerned about the administrative burden that this might involve the system in. Is he any clearer on the figures—he did not have them to hand in Committee—as to what proportion of cases, on a current run rate of about 5,000 cases a year, are down to human error or basic actions that would not require a report of the kind under discussion?
I am pleased to have provided the hon. Member for Romsey (Sandra Gidley) with a “first”. I find it hard to believe that that was the first occasion when such an offer was made to her, but never mind—I am happy to do the honours.
I want to respond positively to the points that have been made. As the Bill makes clear, a scheme must provide for investigation reports to be available on request, as the hon. Member for Wyre Forest (Dr. Taylor) acknowledged, but we recognise that that might not be appropriate in some cases, particularly those in which patient confidentiality or data protection issues are involved. In our view, to adopt a rigid approach in primary legislation would be a mistake, but as I said in response to the hon. Member for Billericay (Mr. Baron), the intention is that the report that the scheme member makes available to the NHS Litigation Authority would ordinarily be the self-same report provided to the individual patient, on request, at the end of the process.
On the points raised by the hon. Member for Ruislip-Northwood (Mr. Hurd), we clearly must have regard to the administrative burden that primary legislation will place on scheme members. It would be a mistake to make the Bill so rigid as to increase the potential burden on individual scheme members, which is why we have sought to retain some flexibility. Some of these matters will indeed be dealt with through the regulation-making process, but I can assure the hon. Gentleman that there will be further consultation with Members and within the NHS to get the balance right. The balance that we seek is openness and transparency for the patient and the right to see the details of their case as provided to the NHS Litigation Authority, while at the same time not creating a scheme that is so rigid that it churns round paperwork and is unnecessarily bureaucratic.
Can we be absolutely clear about this point? I and other Members have tried to question the Minister on it and we are having a little trouble pinning him down. We all agree that an investigation report will be produced at the end of the fact-finding stage. Can he confirm that it will be made available just to those patients who request it, and that there will be no exceptions to that rule? If that is so, what is the function of proposed new subsection (2B) in amendment No. 11?
Of course, the report is not independent, as the hon. Gentleman just claimed, but the report of the scheme member to the NHS Litigation Authority. The purpose of proposed new subsection (2B) is to address the point that I made a moment ago. Ordinarily, most cases will not deserve a flurry of paperwork as the investigation goes on; many will be relatively straightforward. At the point at which redress is offered, the package that the individual receives will include: an explanation; if necessary, an apology; as other amendments that we have tabled make clear, an explanation of how lessons will be learned and action taken to prevent similar events from happening again; an offer of financial compensation; and, on request, a copy of the investigation report.
A scheme member cannot opt out of that package, because the Bill places such a requirement on them. However, paragraph (b) of proposed new subsection (2B) allows for other circumstances, and in doing so deals with the issues raised by the hon. Member for Wyre Forest and the question of confidentiality. My guess is that the number of such cases would be small, but there may be occasions when it would not be appropriate for investigation reports ordinarily to be provided. It is right to seek in primary legislation to create the flexibility to allow for such circumstances.
I am grateful to the Minister for listening to the representations made in Committee about the production of an annual report. However, if the report of a particular case is made available to a member of the public—we are all in favour of transparency and openness here—has he considered whether any clinicians named in the report might become more defensive and seek legal or other representation before they participated in what is supposed to be a relatively low-key, speedy and internal investigation? In those circumstances, is there not a danger of undermining the Government’s approach to independent fact finding?
Possibly, but that is why I would tell the hon. Gentleman that the Conservative amendment should be fiercely resisted. To publish such a report and put it into the public domain would be extremely detrimental and could damage the whole process that we are trying to construct. I believe that I made the point in Committee that there is an important balance to be struck between the wish to be open and transparent and the desire for candour and frankness in the reports. We would not want punches to be pulled in the construction and writing of these reports and we would like things explained as openly as possible, so there is a balance to be struck.
Having reflected on the debate in Committee, I decided that we should come down in favour of openness and transparency. Indeed, that is the spirit of the scheme and it explains why we tabled the Government amendments to make it clear that the report should ordinarily be provided to the individual. The hon. Gentleman raises a valid point in that the report may contain sensitive information, but I strongly urge him to realise that amendment No. 4 would create a different scheme altogether.
Words such as “ordinarily” need clarifying, particularly with respect to the Government amendment. May I ask the Minister a simple question, to which I would appreciate a simple answer? If patients want to see the investigation report—he has admitted that it is going to be produced, so we are not talking about added bureaucracy—will they be able to see it under all circumstances? I am talking about the patient seeing the report.
Obviously, there is no “ordinarily”. The proposed subsection (2A) makes it clear that on request a report should be provided to the individual seeking redress. Then we have proposed subsection (2B) because, as I have already explained, it would be inappropriate in some cases to provide the report on request. The individual seeking redress may not be the person to whom the health care was delivered and, in rare cases, patient confidentiality may be breached or it may be inappropriate to release sensitive information.
What I am saying, as clearly as I can, is that we responded to legitimate points and built into the Bill the clear expectation that reports will be provided on request to the patient. If the hon. Gentleman is asking me whether it is a guarantee that applies to 100 per cent. of cases, I have to draw his attention to paragraph (b). He is right to challenge, but he should not interpret the provisions with such suspicion.
I hope that it will become custom and practice under the NHS redress scheme always to provide the report. Indeed, I hope that, rather than on request, the report will always be provided to the patient because, as I have said all along, that will facilitate the process of finality and closure. That will be a good thing in my view. In no way are we taking away with one hand what we appear to have given to the hon. Members for Billericay and for Romsey. I hope that he will understand that it is appropriate to include flexibility in the Bill, given that, as was just mentioned by the hon. Member for Beverley and Holderness (Mr. Stuart), such reports could contain highly sensitive information that it would be inappropriate to disclose in every case.
I thank the Minister for his clarification. I think that he said at the Dispatch Box that, in all cases where the patient wishes to see the investigation report, the patient will be given that report—unless I am wrong, in which case he may wish to correct that.
There will be consultation on paragraph (b), so the regulations that will flow from the clause will precisely tackle some of the other circumstances where it might not be appropriate to provide the report. It is right that there should be wide consultation on that point, so that we can be precisely clear about where providing the report would not be appropriate. It is impossible to give a 100 per cent. guarantee that that will happen in every case, because that is not how the Bill is drafted. Proposed subsection (2B) has been drafted using the word “may”. It states that a “scheme may provide” to delay the provision of a report or to provide that a report need not be provided in rare cases. It simply gives flexibility.
If the report is not provided to a patient, where would that leave the patient? What form of redress would the patient have in those cases? How could the patient ascertain where the failings occurred in his or her the treatment if he or she does not have a copy of the report?
We were asked to go further in Committee. We have in the Bill a requirement to provide an explanation and an apology if one is deemed appropriate. I argued in Committee that that would ordinarily meet the concerns expressed by the hon. Member for Romsey, because people would receive an explanation that, for all intents and purposes, would comprise the same information as the report. She pressed me to go further. She said that a report will be compiled, so it is right that the patient should have access to that report. If it is accepted that a case should proceed under the NHS redress scheme, those provisions are laid down in the Bill, so the patient is left in a strong position, and the patient will be in an even stronger position as a result of the amendments.
The core criticism of the Bill is that the NHS will be judge, jury and defendant if negligence occurs. The Minister is now telling us that, in addition to being judge, jury and defendant, the NHS can withhold the report on the investigation of the facts in some cases from the person who has been wronged. How can that be right? How will that be heard outside the House?
Opposition Members have chucked around the phrase “judge and jury” in considering the Bill, but the hon. Gentleman is clearly wrong, because a judge decides whether or not an individual’s rights are invoked, leaving the individual with an adjudication. The scheme does not do that; it is out of the legal process. It does not dispense with people’s legal rights to pursue their cases through the courts; it does not do that at all.
If there is a case under the scheme and redress is offered, it provides for all the things that I have said are in the Bill. I do not believe that I could be clearer in my remarks. Indeed, the Bill makes it absolutely plain that the expectation is that, on request, people will be given their investigation reports. I believe that I have answered in full the points that have been put to me. I believe that we should try to draw these remarks to a close.
Will the Minister clarify what would happen in a case in which the files were lost and the coroner’s report was also missing? That happened in a case in Northern Ireland, in which a family has been trying for 30 years to get answers about the death of a young child who had been in hospital following a heart attack. He was given fluids when he was not supposed to be given any foods. Where should people go for redress in such cases?
The hon. Lady has described an extremely unfortunate case. However, that would be an unlikely scenario in today’s NHS, given that much of the documentation is now computerised. I do not want to open up a debate on NHS information technology, but much of the information would be held on an IT record today, and there would not be the same risk of data relevant to a case going missing. Even if some paperwork were lost, it could probably be replicated from the source material. However, the hon. Lady has made a reasonable point, and obviously we would not want to see such things happen.
I have dealt with the points raised by Opposition Members. They seem to want to snatch defeat from the jaws of victory, but I urge them not to do so. Indeed, they should be pleased with the concessions that we have made. Earl Howe pressed us to go further and to provide a report giving an explanation of how similar circumstances would not arise again, and I believe that the amendments have responded to concerns that were expressed in another place. There was consensus on all sides on these issues, and I believe that there still is. However, if Opposition Members want to pursue the issue of consultation, I recommend that they do so. I commend the amendment to the House.
Amendment agreed to.
Amendment made: No. 9, in page 3, line 8, at end insert
(d) the giving of a report on the action which has been, or will be, taken to prevent similar cases arising,’.—[Andy Burnham.]
Suspension of limitation period
Amendment made: No. 10, in page 4, line 13, leave out ‘(3) and’ and insert ‘(2A) to’.—[Andy Burnham.]
With this it will be convenient to discuss the following amendments: No. 2, in page 4, line 16, at end insert
‘in accordance with the rules of natural justice such that the person overseeing the investigation is independent of the trust under investigation (such investigation to be confined to the facts of cases and not to consider issues of liability in law, whether civil or criminal).’.
No. 3, in page 4, line 19, at end insert—
‘( ) about the assessment of liability in tort under the scheme.’.
No. 6, in clause 11, page 6, line 28, at end insert
‘save for the investigation of the facts of cases in accordance with subsection 6(2)(a)’.
This group of cross-party amendments reflects our concern that the NHS redress scheme, as envisaged in the Bill, lacks independence. This represents a missed opportunity to create a mechanism that will have the full confidence of patients and therefore provide a meaningful alternative to going to court. This is the key dividing line between the Government and the Opposition. I speak also for the Liberal Democrats and for the hon. Member for Wyre Forest (Dr. Taylor) when I say that we believe that the fact-finding stage of the investigation must be independent. The Government do not agree. The Minister explicitly conceded that in stark terms in Committee, when he said that the scheme “is not independent”. In other words, the investigation will be conducted internally by the NHS. The very trust being investigated will be investigating itself.
We believe that to be fundamentally wrong for a number of reasons. The first relates to the principle of natural justice. The NHS should not be its own judge and jury, as that represents a clear conflict of interest. Independence is a basic principle of natural justice enshrined in the rule against bias that no man or woman should be a judge in his or her own cause. We have consulted widely on this issue, and there is widespread concern outside this place about the lack of independence in the Bill.
There is also an issue of credibility. Independence is a pragmatic necessity, in the sense that an investigation without the badge of independence would lack credibility and fail to inspire the confidence of patients. That point was acknowledged by the Constitutional Affairs Committee in its report “Compensation Culture: NHS Redress Bill”, published on 1 March 2006.
Will the hon. Gentleman clarify a point for me? In his amendment No. 2, he proposes that the person overseeing the investigation should be
“independent of the trust under investigation”.
He also referred to the NHS investigating itself. Does he envisage that person being an NHS employee, or does he envisage that person being employed outside the NHS? If the former, how does he square that with his opposition to the NHS investigating itself?
The Minister makes a reasonable point. We believe that it is absolutely wrong that the trust being investigated should conduct that investigation. As is normal practice in coroners’ courts and the like, we suggest that the person who would oversee that investigation, who would be totally independent of the trust, could sign a disclosure of conflict of interest to ensure that there was no connection with the trust in question. Let us be clear: this is enabling legislation. We are trying to establish the principle of independence, which the Government will not even acknowledge. In our view, the best way of establishing that independence is to ensure that the person overseeing the investigation by the trust is independent of that trust.
The hon. Gentleman has therefore confirmed that the NHS would be investigating itself, as the person would be an employee of the NHS— [Interruption] The hon. Gentleman says from a sedentary position, not necessarily. Let me ask him again: is that person an employee of the NHS, or is the person employed outside the NHS? Would each NHS trust have an independent investigator? An elaborate scheme was put forward in Committee for patient redress investigators, and this proposal appears to be different. For the sake of a good debate, he needs to clarify this point.
It is very straightforward, and I am sorry that the Minister is having trouble with it. We are suggesting that whoever oversees the investigation should be independent of the trust in question. I hope that that is a simple concept to understand. That is the best way of importing independence into the scheme. We are trying to avoid the situation where the trust being investigated conducts the investigation itself. As this is enabling legislation, we are trying to import into the Bill the concept and principle of independence, something to which I think that the Minister—certainly, he suggested this in Committee—is totally opposed.
I return to the point acknowledged by the Constitutional Affairs Committee in its report, “Compensation Culture: NHS Redress Bill”, published on 1 March 2006. It 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.”
That is terribly important. A change of culture within the NHS is desperately needed. At the moment, too many patients are frustrated by their inability to get to the truth, because they see themselves as fighting a bureaucracy that is not willing to co-operate. However, one cannot change the culture of a massive organisation such as the NHS by flicking a switch in Whitehall or through exhortation, as long as the trusts and individuals involved have an organisational and professional interest in the case—a conflict of interest. Patients want an independent fact-finding investigation, in which they have faith because of its independence. There can be no substitute for that. In patients’ eyes, independence will guarantee an honest assessment of the facts.
To illustrate the point, I briefly beg the House’s indulgence—I am sure that all Members will have examples of constituents who have struggled—to recount a very sad case from my constituency. A daughter of the family in question suffered brain damage as an infant but survived into young adulthood. Sadly, she died unexpectedly, shortly after abdominal surgery. Even to a layman—it is a matter of common sense—there was a striking temporal relation between the occurrence of the operation and the occurrence of her death. It required some explanation. However, the cause of death certificate made no mention of the recent surgery. There has been a post-mortem examination, but the pathologist made no mention of the recent surgery in determining the cause of death. The death had apparently not even been reported to the coroner immediately following its occurrence.
Months later, the death was reported to the coroner, who declined to hold an inquest. Eventually, two years after the death and following much campaigning by the family—and several letters of robust representation from me—the coroner was persuaded that the death was a matter into which she ought properly to inquire.
I do not know and cannot comment on why the cause of death certificate and the pathologist’s determination of cause of death did not refer to the recent operation. I can say, however, that the doctors who dealt with those matters were connected with the hospital where the events took place.
The family—Mr. and Mrs. Sharp, who have obviously given me permission to raise the case here—want a factual explanation. That is all that they have ever wanted. Only then can they decide whether further action is required. They want an honest investigation of the facts, and have made it clear to me that that can only be brought about, in their minds, if the investigation is independent. Unfortunately, however, that request and many like it are being ignored by the Government.
The Government have made clear, especially in Committee, that what is more important to them is for the NHS to take ownership of the scheme. That was reinforced by the Minister in Committee. The Government want the redress scheme to be an internal system that the NHS will feel that it owns and controls. But that is precisely why people might not have confidence in the system. They have already been battling with an internal system for years, and they are very frustrated by it. They want change, and they want independence. Without independence, any redress scheme risks lacking credibility.
The amendments are also about separating fact finding and fault finding for the purpose of the scheme. We have specified that independence must relate to the fact finding stage of the scheme, because establishing the facts must precede any assessment of liability. Both the Minister and the Secretary of State have conceded that there is a practical and logical distinction between fact finding and fault finding for the purposes of the scheme, and have also conceded that the Government’s proposed scheme is itself a two-stage process.
On Second Reading, the Secretary of State said
“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.”—[Official Report, 6 June 2006; Vol. 447, c. 30.]
The Minister explicitly confirmed that in Committee, and that is exactly what we envisage. The principle underlying the distinction is set out in the Inquiries Act 2005 in relation to the coroner’s inquest, and its logic is readily acknowledged in our courts.
If an additional endorsement of that logic were required, we would need look no further than the Inquiries Act itself. The Act provides that an inquiry has no power to determine a person’s civil or criminal liability. The explanatory notes state
“There is often a strong feeling…that an inquiry should determine who is to blame for what has occurred. However, inquiries are not courts and their findings cannot and do not have legal effect. The aim of inquiries is to help to restore public confidence in systems or services by investigating the facts and making recommendations to prevent recurrence, not to establish liability or to punish anyone.”
The Inquiries Act provides that an inquiry is not to be inhibited in the discharge of its functions by any likelihood of liability being inferred from findings of fact or recommendations that it makes. The explanatory notes state that
“it is not intended that the inquiry should be hampered in its investigations by a fear that responsibility may be inferred from a determination of a fact.”
It is important for the investigation of facts not to be contaminated by considerations of fault, either by the NHS Litigation Authority with a mind to defend the NHS or by lawyers asserting rights on behalf of the patient.
Given that we and the Government agree that a two-stage process exists, the only issue is whether the investigation of the facts ought to be independent. We propose that the person who oversees the investigation of the facts must be independent of the trust concerned, as we have discussed. We believe that there is no other way of ensuring real independence. Rather than referring to independent fact finding, however, the Minister has referred to various mechanisms to safeguard patients’ interests.
We suggest that those are leaky buckets that do not hold water. The Secretary of State, on Second Reading, and the Minister, in Committee, referred to a variety of those. In our view, they cannot offer the reassurance to patients that genuine independence would provide. For example, the Minister suggested that free, independent legal advice on an offer or settlement would import elements of independence and safeguard patients’ interests. But that is not the same thing as an independent scheme. Participation by independent lawyers in a process does not transform a non-independent process into an independent one. Moreover, lawyers are not independent, but have to act on someone’s instructions.
The Minister has also made great play of free, independent medical expert advice. I suggest that that is an empty assurance, because expert advice should be independent anyway, or it is not worth the paper it is written on. If it is not independent, it is not expert opinion at all, but advocacy. The person overseeing the investigation at the trust level would have the right to obtain independent medical expert advice in order to help to ascertain the facts, so the Government’s assurance that free, independent medical expert advice would help does not add anything.
What is the Conservatives’ view on the joint instruction of medical experts, which many patient safety organisations and I think is very important? If it were integrated into the scheme, it would be a valuable way to improve it. However, the Tory party seems determined to oppose that, for reasons that I genuinely do not understand.
I thank the hon. Gentleman for giving me the opportunity to raise that point in the House. To be kind to him, I suggest that his recommendation is only a half-measure, because the independent person who oversees the investigation of the facts would have the right to call forward expert medical opinion. The suggestion of joint instruction would add nothing that would not be available to the independent person overseeing the investigation. If the hon. Gentleman is serious about independence, he should back the concept of ensuring that whoever oversees the investigation is independent of the trust that is being investigated. Like a coroner, that person would have the right to call forward expert medical advice that was truly independent for the benefit of the patient in question. The only way to guarantee independence is by having somebody independent oversee the investigation.
The Minister talked about access to court action. The Government claim that a safeguard is that the patient can reject the scheme and have access to the courts, but that is nonsense. The Government are defining the merit of redress scheme by the occasion of its failure—when people resort to court action even though the scheme is supposed to provide a genuine alternative to litigation. The Secretary of State and the Minister have made great play of the fact that the patient can always complain to the health service ombudsman and ask for a review to be undertaken by the Healthcare Commission. However, the availability of such remedies relates to maladministration and procedural matters, not substantive issues.
Overall, the leaky buckets do not change the fact that the trust under investigation would be investigating itself—a clear conflict of interests that acts against patients’ best interests. Nor would the independence that we envisage be more expensive. The Minister has made great play of that point.
The Minister persists with that question because he is trying to mask the fact that the Government do not accept that the scheme should be independent. We are trying to import into the Bill the concept and principle of independence, and the best way to do that is to ensure that whoever oversees the investigation of a trust is independent of that trust. It is as simple as that.
The Minister seems to have forgotten that this is enabling legislation. The thousands of civil servants behind the Government should mean that it is possible to decide, after an appropriate time, precisely who should control investigations. Does my hon. Friend agree that what is important now is to determine that that person should be independent, and that the Minister is simply trying to pick our proposal apart?
May I make a suggestion that may go at least half way towards answering the Minister? In “Making Amends”, it was proposed that the NHS redress scheme should be aligned closely with the new NHS complaints procedure. If that were to happen, the Healthcare Commission would be involved, and that would mean that people would automatically be available to oversee the process independently.
I do not disagree, but we need to make it clear that we are trying to introduce into the Bill the principle and concept of independence. I am willing to give way to the Minister again if he wishes to clarify his position on the matter. However, in response to an intervention by me in Committee, he made it abundantly clear that he did not believe that the scheme should be independent, and that ownership was more important.
I am happy to intervene again. At the start of his contribution, the hon. Gentleman made it clear that he does not believe that the NHS should investigate itself. In Committee, his proposal was for independent and suitably qualified patient redress investigators, but now he is proposing something different. He needs to give the House an explanation of that, and not evade the question that I am about to ask. Will the people holding those posts be employed by neighbouring trusts, or by PCTs, or by a body such as the Healthcare Commission? If I am to answer him, he needs to be specific. It is not good enough for him to say that the Opposition do not have armies of civil servants: he is asking us to change our legislative proposals, so we need to know what he intends.
The Minister referred to amendments that were proposed in Committee, but I suggest that he confine himself to those tabled for today’s Report stage in the House. He seems unable to accept that we are trying to push for the principle and concept of independence. He has not refuted my earlier suggestion that he does not believe that the redress scheme should be independent, so there can be no merit in going into detail about how we would secure that independence. We are using the amendments to introduce the principle and concept of independence into the Bill.
The Minister has tried to attack our proposal that the redress process should be independent by suggesting that it would be more expensive. The Government have conceded, however, that in both their and our proposals there is a two-stage process; the fact-finding cost is, therefore, fixed, inevitable and unavoidable whoever oversees the investigation. There is no question of duplicating bureaucracies and so no question of additional cost. Indeed, our proposals could actually save money as they would inspire greater confidence in the scheme and thus better avoid costly litigation.
In addition, the Minister has contrived the idea that an independent fact finding process would be adversarial, accusatory or finger pointing, but that makes no sense at all. There is a basic legal distinction between an adversarial process and an inquisitorial one. An inquisitorial process is concerned with fact finding, not fault finding; there is no sense in which such an investigation would reinforce a blame culture in the NHS. Indeed, our proposal for an independent fact finding process would ensure that the proceedings were not adversarial, as no lawyers would be present and no legal rights would be asserted or defended.
The Minister talked about promoting a culture of openness and honesty, in which the NHS takes responsibility for its own mistakes. He implied time and time again that because our proposal would require an independent outsider to go in and consider what went wrong—he referred to that point again earlier today—it argued against a culture of openness in the NHS and would encourage NHS staff to close ranks and clam up. But that is absurd. If the openness the Minister is talking about is all in-house and not exposed to outside scrutiny, it is not openness at all. There is a fundamental contradiction between the Government’s desire to promote openness and the Minister’s reluctance to allow an independent person to oversee the investigation of the facts.
In Committee, the Minister tried to ridicule our suggestion for an independent fact-finding process by talking about people “snooping” on trusts. He criticised the Opposition for not trusting NHS professionals to carry out an investigation into their own case, but that is a matter neither of snooping nor of trust. What exactly does the Minister believe that the NHS has to fear if his intention is to promote openness and honesty?
I fear that the Minister has taken the problem at the heart of medical error—the blame culture and the reluctance to admit mistakes—and institutionalised it. Instead of challenging and confronting the problem, he has built his system around it. His non-independent scheme seeks to insulate the NHS from outside investigation even when such investigation is of a fact-finding rather than a fault-finding nature. He has set his heart on a non-independent scheme and will dredge up as many bad arguments as he can to support it. Saying that lessons should be learned, but only if they are the lessons the trust wants to learn, is not a genuine commitment to learning lessons or to changing the culture of the NHS.
In conclusion, I return to my theme: independence is right both in practice and in principle. It complements the culture of openness the Minister is trying to promote. It would not be accusatory because we would separate fact-finding from fault-finding; we would keep the lawyers and the finger pointing out. It would allow lessons to be learned and would reassure the patient. That is the most important point, because without independence, the investigation of facts, which will eventually give rise to an assessment—not a determination—of liability and a possible offer of compensation, will not have the confidence of patients. In the worst case scenario the redress scheme would not be a meaningful alternative to going to court, and because of the importance of the issue I intend to test the opinion of the House on the amendment.
We have just heard a long and detailed explanation—despite what the Minister thinks—so I shall not rehearse many of the arguments.
The amendments are an attempt to improve the scheme by introducing the concept of independence. There is broad consensus that we want a spirit of openness and honesty in the NHS; it needs to be part of the NHS culture. I know that attempts are being made to engender and promote that, with the emphasis on the reporting of incidents, which has quite a depressing effect because we then read reports that there are a million adverse incidents in the NHS in a year. Actually, it is good that any near miss—any slight problem—is reported, because we learn from those mistakes. We are moving towards a culture of openness and honesty, because people realise that in many instances there is no blame attached.
Disagreement has arisen, however, because the Government seem to be wedded to the idea that in-house investigation will promote further openness and honesty. Indeed, Members such as the hon. Member for Crawley (Laura Moffatt), who have considerable experience of the NHS, argue that point very powerfully.
I undertook my own very unscientific straw poll.
I am on the hon. Gentleman’s side here—remember?
I conducted that poll to get a feeling for the attitude of various grass-roots employees of the NHS. I asked for their thoughts in a very neutral way, without prompting. There seemed to be a considerable consensus that a completely in-house investigation causes problems, not necessarily because of a lack of desire for openness, but because often internal tensions and loyalties come into play and are played on in a way that can be unacceptable. For that reason, there seem to be a number of people who strongly support the concept of independence.
I was accused of being unscientific, but, as the hon. Member for Billericay (Mr. Baron) said earlier, a number of bodies support this concept. I think we have to approach it from a patient perspective, because unfortunately patients can sometimes have a deep mistrust of the NHS. When things are going well, people have nothing but praise, but when things go wrong, time and again there is the accusation that “they all cover up for each other”. That perception must be challenged, and that is why the Bill as it stands is so dangerous. I am far from convinced that “they all cover up for each other”, but it does happen from time to time.
For those reasons, there is a huge advantage in introducing someone from outside the organisation: people can talk more frankly, as long as the outside person has some powers to access the information that is required to complete the investigation. If that person is independent, the process will have much greater buyin from the public and, I suspect, much greater cooperation from staff who are involved, directly or indirectly.
The outside person clearly needs to be independent. The Minister questioned us at some length to try to get details of who would employ the person and whether they would be truly independent of the NHS. I confess that I felt that the Minister was taking the view that we, as Opposition Members, often take in Standing Committees, because we are often faced with something fairly broadbrush from the Government and are asked to take a lot of things on trust. [Interruption.] The Minister says that he explains, and I concede that he has tried very hard to explain, but I can think of numerous Standing Committees in which I have served where the detail of proposals was extremely hazy––so the Minister is not exactly unique in this.
Does my hon. Friend agree that if the Government accept the spirit of the amendments and the principle of independence, no Opposition Member would, I suppose, force through the specific wording, provided we received an assurance that amendments on independence would be introduced in another place?
That would be welcome, but, judging from the experience during other stages of the Bill, I cannot see the Government conceding on this matter.
There must be wider consultation on the precise nature of the independence so that we know exactly what is acceptable to patients and those within the NHS. Taking the Government approach of the enabling principle, I would contend that there is everything to be gained from accepting the principle of what we are talking about and consulting more widely on the detail. I urge the Minister to consider the amendments, which have widespread support, carefully, and perhaps live a little dangerously.
I will speak for only a short time—I am sure that the Minister will be pleased to hear that. I want to talk about natural justice, about which we seldom hear from the Government these days. If patients or their loved ones feel that they have suffered at the hands of the NHS, they have already been substantially hurt and often feel enormously let down. If they are told, “Well, it can’t be an independent inquiry. The trust will do the inquiry themselves” they will not understand where the natural justice is in the Bill. I am disappointed by what I have heard. I was not on the Committee, but I am on the Health Committee and we have looked at the matter independently—not in a report, but in relation to the information that has come through. I honestly thought that the Government were going to open things up and allow natural justice in the NHS.
As a new MP, all too often I have constituents who come to me and say, “Would you take my case to the ombudsman?” Naturally we have to go through the bureaucratic process of going to the trust and making a formal complaint. My constituents say, “Why? It’s the trust that’s let us down. It’s the trust that made the mistakes.” How on earth are we going to have confidence in the NHS if we tell them, “Don’t worry. We’ve got a brand new Bill. Everything is going to be fine. And, by the way, the trust is going to make the inquiry into your complaint.” That is not going to work.
The Minister should think about this matter carefully. If it were his children or family and he had cause to seek redress, would he be happy to go to the same management and the same people who had been treating his loved ones and perhaps made mistakes? That is where the danger in not accepting the provisions lies. We need confidence in the NHS. The NHS is going through a difficult time.
I understand what the hon. Gentleman is saying and I appreciate the sincerity of his intent, but, in common with hon. Members across the Opposition Benches, he is missing the fundamental point that the Bill is about the process during which the NHS investigates itself. It is not about these other things. In his example, the alternative is for every case to go straight to the ombudsman. That should not happen, because the NHS is bound to investigate itself and the Bill is about how it does that.
In all sincerity, I understand where the hon. Gentleman is coming from. However, the object of any such Bill is the trust of the public—our constituents—who are using the service. I was not saying, in any shape or form, that we should go from the patient having problems and needing redress straight to the ombudsman. However, as the Bill stands, we still have the trust investigating itself. We have moved away from that in other areas of government. The police used to investigate themselves. They do not do that any more because the public did not trust the methodology. We have moved away from that. I am not saying we should move straight to the ombudsman; I am saying that trust and natural justice should be addressed, which I am sure was the intention of the Bill at the start. That is not going to happen unless there is independence.
I could not agree more. The hon. Gentleman is spot on.
If we had independence it would very much help the professionals who do such a fantastic job in the NHS—those in the management structure and the doctors and nurses who are so worried. The natural assumption is that when another complaint comes in, the walls will go up. Whether or not that is true, it is the perception in the NHS and among patients. I cannot stress how strongly I feel about this matter. We have started to see openness in the NHS: patients can see their records now, which they never used to be able to do. I am sure that the Minister acts in good faith, but I say to him that this part of the Bill is fundamentally wrong. It should be about natural justice, and we will not gain that if the measure lacks independence.
We have heard a very powerful speech that goes to the heart of the issue, which is the patient experience. It is not possible for the House to focus too much on the position of someone who has been wronged by the system and has a great sense of grievance. In the system today, as the Government have described, such people all too often feel that their complaint is not taken seriously, they feel that an explanation has not been provided and they do not receive an apology.
Like my hon. Friend the Member for Hemel Hempstead (Mike Penning), I recognise that the Government and the Minister are sincere in their desire to create a decent redress scheme. Unfortunately, the more I have seen of the Bill and its proceedings, the clearer it has become that it is fundamentally flawed. Fault and fact finding will not be separated. The hon. Member for Birmingham, Erdington (Mr. Simon) is right to challenge the notion that the NHS investigates itself. It has been used by Opposition Members to sum up the issue, and it is technically correct. I put it to the hon. Gentleman—I know that he takes a great interest in this matter and is sincere in his views—that the problem is not that the NHS investigates itself but that the trust that is responsible for letting down the individual patient ends up investigating the case.
There are trusts that are poorly run—fortunately not many—trusts in which mistakes happen and trusts that have a culture that is less than adequate. Where the local community feels that that is the case, where individuals have been negligently treated by the trust, the justice that they will receive under the Government’s golden new system is that that trust will investigate itself. That is at the core of our objections to the Bill.
My hon. Friend is making an important point. Is it not important that we look at this matter through the eyes of families of constituents such as mine, who are trying to find any way they can to avoid having to go to court and employ expensive lawyers? They support the principles behind the Bill, but what they really want is a patients’ champion, or a families’ champion, separate from the trust. That is the key point.
My hon. Friend is absolutely right. I ask the Minister not to nit-pick at the concept of independence. It is not a failure on the part of the Opposition to fail to specify precisely which authority will oversee this. Doubtless there are various organisations that could do so, and a contribution from the Government to the discussion on how that could better be done would be useful. Rather than challenging the Conservatives to tell them how to run the Government, as this Government, in an intellectually bankrupt way, too often do, the Minister should tell us why he feels that no such body exists or could be created.
I will make a little more progress.
I would rather hear from the Minister why it is impossible to imagine setting up a body to oversee these matters and ensure that there is independence. We are in an invidious position: the Government, who started out with the best intentions, are suggesting that the trust should be the investigator, the defendant and, to an extent, the jury.
The Minister made it clear that there is a truly alarming additional element. Although he says—and I welcome it—that in nearly all cases the report into an incident will be made available to the patient concerned, unfortunately there are no guarantees on how often that would happen. The trust at fault could investigate itself, then refuse to present the report to the patient who has been wronged. When the Minister goes to sleep tonight, he must accept, in all good conscience, that he is a long way from the position that he wanted to secure when he first sought to provide a fairer system of justice for patients who have been wronged.
I cannot think of any reason. The Minister implied that he would like patients always to be provided with a copy of the report. He suggested that when it was not the patient but someone else who asked for the report, it should not necessarily be provided, but such a provision could be included in the Bill. I think that hon. Members in both Opposition parties would urge the Minister to make that change, even at this late stage.
I am rightly being urged to keep my speech short, but, before I conclude, I ask the Minister to think about the clinicians’ point of view. Imagine that, in a trust such as the one that I have described, there was a clinician who was not too popular with the trust’s management, and a complaint was received. Who investigates it? Does an independent fact finder who is experienced in such investigations, and to whom we can look for an objective assessment of the facts, come in from outside? No, the trust’s management, with whom the clinician may have a fractious relationship, decides on the facts of the case, writes up the report and may conceivably release it to the patient. Quite possibly, that patient’s first act will be to stop at the local newspaper office on his way to the lawyers.
I will give way to the Minister in a moment.
The clinician may find himself in that position. The Minister’s suggestion—this is the point to which I would like him to respond—that the clinician will be happy with that, and that it will lead to openness, is absurd.
I will not respond to that, but I want to ask the hon. Gentleman a question. Does he accept that it is standard practice, not just in the public sector but in the private sector, that when a complaint is brought against an organisation, the first stage should be an investigation carried out by the organisation itself? Is the hon. Gentleman suggesting that that does not happen in the private sector? If someone sought to escalate a case before such an investigation had happened, they would normally be told to take the matter back to the organisation for investigation and response.
The Minister makes a point with some power to it, but the Government introduced the Bill precisely because the NHS is not investigating itself in that way. It is because the matter is critical, not only to the patient but to the country as a whole, that independence is needed. The police have similar status, and it is similarly important that they should conduct themselves fairly, but it has been decided that they should not investigate themselves.
The Minister said at the beginning of his contribution that there will not be an independent investigation. That is the message that the Government are sending out. The Minister is telling patients who have been wronged by trusts across the country that there will be no independent investigation. The Government will realise, months or years from now, that it is a mistake to send out that signal and to destroy the good intentions that they had when they set out on this path.
Thank you, Mr. Deputy Speaker, for calling me to speak in this important debate. In Committee I thought that, by and large, this was a good Bill. There were some flaws in it, but on the whole it was facing in the right direction. However, I am becoming concerned.
The Bill raises the question of who is in charge of a hospital trust when a mistake is made. The answer, of course, is the chief executive. The buck stops with him. If a pattern of mistakes emerges, there is a danger that vested interests will begin to take hold. Would a chief executive therefore begin to take a much closer interest in the investigation process, perhaps to make sure that the full implications of the mistakes made do not see the light of day, or that if they do, they are kept well away from his office?
There is a need for trust and transparency in the system. The public sector—the NHS and the police, as my hon. Friend the Member for Hemel Hempstead (Mike Penning) said—is at the best of times viewed with a degree of cynicism by the public. There is a concern among many of my constituents, and no doubt among the public in general, that if faced with an investigation that could be embarrassing, the NHS will close ranks around the senior management team and perhaps the clinicians concerned.
The danger arises if a pattern starts to emerge. We discussed reports being made public or not. Surely if a pattern is emerging, reports may be withheld because they will prove that failures in the system have not been addressed—that something that was identified a year ago has happened time and again. For the sake of my constituents and others, a degree of independence would be wholly justified. Perhaps a complaint against a trust should be investigated by another trust. We see that happening in the police, where one force may investigate a complaint against another.
I know that the Minister is a hugely decent and honourable gentleman and I would not wish to waste his time by making puerile suggestions. I join my hon. Friends in urging him to find some way of injecting an element of independence into the investigation procedure, perhaps by allowing a trust other than the one being investigated to look into the complaint or the case being presented.
I shall add one brief point. The Minister and the Government are deluding themselves in their claim that the Bill will transform the culture of the NHS. I say that for two reasons. First, we on the Conservative Benches are learning a little about culture change, and we know that it requires strong management and strong signals of change. The more I look at the Bill, the more it strikes me that it does little more than formalise what already happens. I cannot see that that is a strong signal of change to the NHS.
Secondly, because necessarily at no point in the process is the legal threat removed—it remains as a sword potentially hanging over the situation at all times—I cannot see how that will make the NHS any more welcoming of a breathing space to face up to its failings or become more active in identifying problems. That is a delusion— it would be much better to focus, as we do, on how the patients will respond to the opportunity. They will have two questions— first, who will find out the facts? The Government say that will be done by the very trust that made the mistake. Secondly, who will define liability? The answer is the very agency whose priority is to defend the NHS. It is very difficult to see how patients will have any more confidence in the new system. It would be far better to focus on a guarantee of independence, as we propose, to find the facts.
I am passionately on the side of those who want complete independence in the process. The Government have a short memory. The old NHS complaints procedure was not independent, in that the complaints convenor was time and again an employee of the trust or very often a non-executive director of the trust. That happened in my area. Only a minuscule number of complaints got through that trust employee. The Government then changed the NHS complaints procedure. Certainly, the first stage is the internal investigation, but then it moves on to the wider, completely independent part supervised by the Healthcare Commission.
I will give an example from personal memory. Rather a long time ago, I was a doctor doing my national service in the RAF. I had just got married. Within weeks of that, I was posted unaccompanied to Christmas Island. My commanding officer, who was the same sort of lovely, helpful, avuncular figure as Mr. Speaker himself, told me that an officer had the right to appeal to the Secretary of State for Air. So I came up to London in my best uniform to appeal to him, but who did I see? It was merely the lowly squadron leader who had given me the posting.
I hate to pick at open wounds, but it is a little like the Prime Minister saying, “Yes, I recognise there is a problem with cash for peerages and the Labour party is going to investigate it.” What confidence would the public have in that sort of statement?
I will not comment on that point.
The Minister has said that the redress scheme will be owned by the NHS. I entirely agree that the investigation has to be carried out, but there must be independent oversight for it to gain any confidence among the ordinary people. I understand that he said in Committee that he favoured a scheme that encouraged the NHS to own up to mistakes. I agree, but was not he being a little naive? Surely, there has to be independent outside oversight to ensure that an investigation is full and open and allows no cover-up.
We have had a long discussion on this group of amendments, during which the Opposition’s confusion has been laid completely bare.
Amendments Nos. 1, 2, 3 and 6 seek completely to separate fact-finding investigations under the redress scheme from fault finding. The scheme authority would have no role in the investigation and would be unable to provide guidance or advice to scheme members about investigations. The opportunity for a unified and complete scheme for redress would be lost. I reject the amendments and encourage my hon. Friends to do likewise.
The amendments focus on a major area of disagreement—namely, independent investigation. In another place, the Opposition gave us the model of
“suitably qualified patient redress investigators”
who were to conduct the fact-finding investigation in each case and to be overseen by the Healthcare Commission, which was also to be responsible for maintaining and publishing a list of the investigators. On Second Reading, the hon. Member for South Cambridgeshire (Mr. Lansley) defended that proposal. In Committee, we saw it slowly unravel as the hon. Member for Billericay (Mr. Baron) sought to explain it to us. When we asked him to describe exactly how it would work and, importantly, how much it would cost, he said:
“at the top we have one person, an NHS redress investigator, who is truly independent and oversees the fact-finding stage.”—[Official Report, Standing Committee B, 13 June 2006; c. 43.]
That is not what the amendment in the other place provided for. It clearly stated that the patient redress investigators were to conduct the investigation of the facts of a case and produce a report on the principal findings.
In Committee, the redress investigator was no longer to conduct the case but to play an oversight role. The proposal somehow changed between Second Reading and Committee. We now have a new proposal whereby an individual would be independent of the trust. However, the hon. Member for Billericay has provided no clarity about who would employ that individual—another NHS trust, the Healthcare Commission or a different organisation. We have no idea of the proposed number of independent investigators, yet we are asked to accept an amendment that includes no detail, with complete policy confusion behind it.
The hon. Gentleman challenged me on several occasions by saying that I was opposed to independence and had a fundamental objection to it. I hope that I partly convinced him that the Bill and the amendments that we have tabled today will mean more openness and transparency. There is independence in the scheme in that we can use independent medical experts. Independent legal advice will also be provided to individuals at the end of the scheme.
However, if the hon. Gentleman is asking me to explain again the purpose of the scheme, I stress that we are considering the national health service doing better what it should do ordinarily—investigate complaints brought by patients and not cause huge delay and frustration when patients try to have a complaint investigated. We are considering the NHS conducting the first stage of complaints better.
My hon. Friend the Member for Birmingham, Erdington (Mr. Simon) was right to say that the Opposition have consistently misunderstood the point. Why would we replicate the legal process in the scheme? It is an out-of-court settlement scheme. Why on earth would we build into it all the expense of the independent legal process?
Again, Opposition Members are confused. There is a second stage complaints process in the NHS. The Healthcare Commission deals with that. However, if the hon. Gentleman wrote to the commission today with a complaint from a constituent, I am confident that it would write back and ask him whether he had first complained to the relevant trust and what its explanation was. If he took a complaint about a police force to the Independent Police Complaints Commission, its response would be the same. It would not deal with an initial complaint by an individual constituent.
Does my hon. Friend agree that Opposition Members again fundamentally misunderstand our constituents’ position? It is not the case that they do not want to complain to the relevant trust, that they do not want the trust to investigate itself or that they want immediate redress through an independent arbiter. My constituents want to complain to the trust that has done what they perceive to be wrong. They want the people responsible to take them seriously, consider the complaint in depth, find the solutions and provide some answers. The Bill simply creates a process and provides a huge array of tools to enable trusts to do that. That is the purpose of the measure, which Opposition Members have fundamentally failed to understand throughout our proceedings.
My hon. Friend is right and there is probably no point in my saying more, but I shall say a little. He has expressed exactly what our constituents want when they come to our advice surgeries. They want their local trusts to see for themselves the mistake that has been made, acknowledge it, apologise, explain and take steps that will stop that happening to other local people—their neighbours who live in the same community. That is what they want.
When I was sitting through some of the tripe that we heard from Opposition Members, I got the impression that they have a distinct distrust of the national health service’s ability to carry out fair investigations into complaints brought to it. [Interruption.] It is nothing to do with the Government; these are complaints that are brought to NHS trusts. The hon. Member for Hemel Hempstead (Mike Penning) said that he could not take those complaints to trusts because they would not have the trust of the public; he used words exactly to that effect.
Let us be absolutely clear. There is already an independent structure for the making of complaints; what we are talking about here is qualifying liabilities in tort. The Minister risks confusing the two, so let us restrict our comments to qualifying liabilities in tort. He suggested that independence can be imported in some way. He has clearly stated that he believes that the scheme is not independent and he suggests that importing lawyers—so to speak—will somehow make the scheme independent. The trouble is that lawyers do not turn a non-independent scheme into an independent one, because they assert or defend legal rights. I ask the Minister to address that point. In addition, expert medical advice would be available to patients anyway, and that right would be ensured—guaranteed—under our system by the independent person overseeing the investigation. So again, this scheme does not add value.
The hon. Gentleman is entitled to draw his own conclusions from my explanations. Let me say again clearly that he is right in that, for a case to qualify under the scheme, there has to be a recognition of a liability in tort, and that it then follows that there is a likelihood that compensation or other recompense might be due under the scheme. That is the qualifying gateway for cases dealt with under the scheme. However, we are proposing the breathing space of an out-of-court settlement scheme, so that it is not necessary to go through an expensive and polarised legal process in which people dig in for a long and complicated battle, often to the great frustration of individual patients who are kept waiting for a long time. In many instances, those cases are abandoned or do not come to court.
The Bill proposes an out-of-court settlement scheme at the outset, so that redress can be provided much more quickly to individual patients. The national health service will thereby be encouraged to take a positive approach to identifying mistakes and accepting and acknowledging problems by offering an apology and an explanation to such individuals, and by making financial recompense where necessary.
There is no doubt in my mind about the scheme. I resist amendment No. 1 because it would import the independent legal process into the scheme and turn it into something different by replicating the rights that the patient gets under the second stage legal scheme. If this scheme fails and cannot satisfactorily give redress to the individual concerned, they will still have the right to take forward an independent legal action outside the scheme; they sign nothing away by allowing their case to be proceeded with under the scheme. The scheme does something different.
I understand why the hon. Member for Billericay presses me on the question of independence, on which we have had a useful debate.
I appreciate the Minister’s generosity in taking interventions and I thank him for that. He and we agree that this scheme should be an alternative to going to court; that is the Government’s and the Opposition’s stated aim. However, does the Minister accept that the scheme’s credibility therefore becomes very important? There is more likelihood of patients not going to court if they have faith in the scheme being presented to them. The best way of having faith in the scheme is ensuring that it has credibility, and the best way of ensuring that is to ensure that it is truly independent. Otherwise, many patients will come to the conclusion that it is not independent and that there is no change from the present situation. They have had the internal system many times before and now they want something different. The difference that they want is independence.
There is a built-in incentive for trusts to settle under the scheme because if they fail to do so, they face the prospect of duplicating effort and going through a further legal battle. The fact that the scheme contains a built-in incentive for trusts to settle will help to build faith in it. That is precisely why my hon. Friend the Member for Birmingham, Erdington tabled his new clause, putting a positive duty on seeking resolution, thereby avoiding the need to go to the courts. He was absolutely right about that, but we have provided for independent oversight of the scheme through the ability of individuals to take their case to the parliamentary ombudsman. People can ask the ombudsman to ascertain whether or not a case was adequately investigated and the process handled properly—a responsibility that the ombudsman has welcomed.
In dealing with issues raised by the hon. Member for Wyre Forest (Dr. Taylor), I would argue strongly that the success of the scheme will be judged by the reduction in the number of cases that go up to the second level. I would like to see a substantial reduction of cases going up to the Healthcare Commission level or on to the courts. It is precisely because the first stage of the investigation is inadequate that people feel that they have to go up to the higher level and it has to be right to encourage the NHS to do a better job at that first stage. We will thus avoid the need for cases to be passed up to the Healthcare Commission or the courts.
We have had a long debate about the scheme that we propose and the costly, bureaucratic, complicated scheme that the Opposition are seeking to impose on us. They are asking us to accept a bunch of amendments that, quite frankly, have not been thought through and are completely chaotic. I will not go there, so I ask my hon. Friends not to accept such a proposition and to resist the amendments.
It will not surprise you, Mr. Deputy Speaker, to learn that I am somewhat disappointed by the Minister’s response. I do not deny his good intentions in wanting to create an alternative to going to the courts. The problem is that the scheme in the Bill does not reflect patient priorities. What patients want more than anything else is an explanation, an apology if due, and an honest assessment of the facts. Very often, compensation is a secondary consideration, but the Minister’s proposals risk putting compensation in front of explanation when it comes to the operation of the scheme.
Patients want to ensure that the lessons have been learned for the benefit of others. I am sure that the Minister would not disagree with that, but if we are to achieve it, we need an open and honest examination of the facts. There can be nothing more open and honest than having an independent person from outside the trust coming in to oversee the investigation of the trust itself. I do not understand why the Government are so worried about someone coming in from outside to investigate the facts. If we are serious about changing the culture within the NHS, ensuring that it learns from its mistakes and that investigations are open and transparent, there is no better way than ensuring that the person overseeing the investigation is independent. Otherwise, what does the NHS have to hide?
Again, with regard to the Minister’s comments about bureaucracy—it was a throwaway line, but he referred to it again—he was very wide of the mark. We are not proposing to create a bureaucracy. The Government have admitted that they are suggesting a two-stage process, and we accept that it is a two-stage process: the examination of the facts and then an assessment of the liability by the NHSLA. The infrastructure for the first, fact-finding stage is already in place.
All we are suggesting is that the person who oversees the investigation must be independent of the trust. We are not suggesting the creation of a massive bureaucracy, and I suggest that the Minister does not understand that fact and that it is a question of who oversees the investigation itself. For those reasons, I am afraid that I have not been persuaded by the Minister’s arguments and I will press the amendment to a Division, to test the opinion of the House.
Question put, That the amendment be made:—
Amendment made: No. 11, page 4, line 23, at end insert—
‘(2A) A scheme must—
(a) make provision for the findings of an investigation of a case under the scheme to be recorded in a report, and
(b) subject to subsection (2B), make provision for a copy of the report to be provided on request to the individual seeking redress.
(2B) A scheme may provide that no copy of an investigation report need be provided—
(a) before an offer is made under the scheme or proceedings under the scheme are terminated, or
(b) in such other circumstances as may be specified.’.—
Legal advice etc.
With this it will be convenient to discuss the following: Amendment No. 5, in page 5, line 1, leave out paragraph (a).
Government amendments Nos. 13 and 14.
Amendment No. 7, in page 5, line 10, leave out subsection (3).
Government amendment No. 15.
In the statement of policy published in November 2005, we made it clear that, when evidence from an independent medical expert is necessary, it is intended that the scheme authority will seek to ascertain the wishes of the patient to reach agreement on an acceptable person. If patients are to have faith in the system, it is important for them to have confidence in that medical expert and in the expert’s independence.
Amendments Nos. 12 and 15 make it clear that, if the scheme provides for the services of medical experts in certain circumstances, and if an individual case falls within those circumstances, the medical expert will be jointly instructed by the scheme authority and the individual seeking redress. Therefore, when the services of medical experts are provided for under the scheme, the medical expert will be an agreed independent expert and the services of that expert will be provided without charge to the individual. For the avoidance of doubt, I repeat that the expert will be independent.
As the hon. Member for Southport (Dr. Pugh), who has now joined us, said in Committee, it would not be reasonable to expect a lay person to instruct a medical expert on a complex issue. That is a fair point. I can reassure the hon. Gentleman that we have the existing power in clause 8(1)(a) to enable legal advice to be made available to individuals when it is needed at an earlier stage under the scheme. Legal advice is not restricted to the stage at which an offer is made. We specifically have in mind that legal advice may be appropriate to enable an individual to be fully informed and involved in the joint instruction of an expert.
Although amendment No. 15 makes specific reference to medical experts
“instructed jointly by the scheme authority and the individual seeking redress under the scheme”,
I can reassure Members that it is our firm intention that the individual seeking redress will have access to appropriate legal advice without charge. However, amendment No. 5 would remove the flexibility to provide free legal advice earlier. We want that flexibility: by rigidly excluding free legal advice, the scheme will not assist patients.
The argument for removing clause 8(1)(a) produced in Committee was that legal advice was not necessary during the fact-finding process. Investigation ascertains what happened, and for that no legal advice is necessary. I have to say that I do not agree with that assessment. For example, there will be circumstances in which it will be appropriate for there to be instruction of medical experts to help ascertain the facts of a particular case. Government amendments Nos. 12 and 15 clarify that, where provision is made for the services of medical experts, the medical experts are to be jointly instructed by the scheme authority and the individual seeking redress. I consider it entirely reasonable, where the patient wishes it, for legal advice without charge to be made available in those circumstances. Many patients will be unaware of the issues involved in jointly instructing a medical expert and it would be unreasonable to expect a lay person to do so without advice. If the redress scheme is to be effective and to gain the confidence of patients, there needs to be appropriate support throughout the process. The aim behind the legal advice is to assist individuals seeking redress. I therefore reject amendment No. 5.
In Committee, the hon. Member for Eddisbury (Mr. O’Brien) asked for clarification of clause 8(1)(a). He said, rightly, that it is vital for a legal adviser to know who their client is: they must know to whom they are providing advice. It was suggested that clarification was required to make it clear whether the legal advice that may be provided under this clause was to be provided to the person seeking redress or to the scheme.
The amendments make it clear that, in relation to clause 8(1)(a), the client is to be the individual seeking redress, rather than, say, the redress scheme. Legal advice may therefore, without doubt, be provided to individuals seeking redress under the scheme. However, I think that it is important to make clear the intention behind clause 8(1)(a). We want to ensure that patients going through the redress scheme can make a genuine, informed choice when presented with options. Clause 8(1)(a) will enable legal advice to be provided to patients, where appropriate, during the scheme—for example, to assist with the joint instruction of medical experts. However, I confirm that the intentions behind this clause are to facilitate fact finding and resolution and, equally importantly, to ensure fairness within the system by better enabling patients to make an informed choice. Clause 8(1) provides the flexibility for the provision of services that may help to reach an agreement to settle. The advice provided to the individual remains the property of the individual and would not be disclosed to the scheme authority.
Amendment No. 7 would remove the explicit power in clause 8(3) enabling the scheme to provide that free legal advice has to be supplied by a provider included in a list held by a specified person or body. As drafted, clause 8(3) enables the scheme to provide that free legal advice, whether provided when an offer is made or at an earlier stage, has to be supplied by a provider included in such a list. It is envisaged that the scheme may provide that the list of solicitors firms that will provide legal advice under the NHS redress scheme will be those firms that are authorised by the Legal Services Commission to undertake publicly funded work, and that have agreed to provide advice under the scheme.
Any organisation undertaking clinical negligence work under an LSC contract must hold a specialist quality mark in clinical negligence. The LSC awards the quality mark to individual offices. To gain the mark, the firm or office must have a solicitor who is on either the Law Society or the Action against Medical Accidents panel to ensure the work undertaken will be under the supervision of an experienced individual solicitor. We intend that approved providers of legal advice under the redress scheme will be restricted to firms that have achieved the quality mark status in clinical negligence. Clause 8(3) seeks to guarantee that the legal advice offered under the scheme is of a suitable and high standard, and I therefore oppose the amendment.
In a publicly funded scheme, it is appropriate that solicitors funded to provide services to patients meet a guaranteed, appropriate standard. It is also appropriate that the advice is provided by a solicitor’s office with the appropriate level of specialist training. I therefore reject amendment No. 7.
The Government amendments provide some clarification of issues raised in Committee, especially on the joint appointment of medical experts and the status of legal advice provided to individuals. The amendments strengthen the Bill further and I urge hon. Members to accept them.
The purpose of our amendments is to restrict the role of lawyers, except where legal rights are affected—that is, at the offer stage. The Minister has accepted that the policy underlying the Bill is to provide a genuine alternative to litigation. Under the redress scheme, offers may be made on the basis of the NHSLA’s internal assessment—not its determination—of liability.
Legal rights are not determined but remain intact, as the person concerned can resort to litigation at any time. Accordingly, it is difficult to see why lawyers need to be involved before an offer is made or a settlement is considered, when legal rights may be waived as part of a compromise agreement.
The Secretary of State agreed with that sentiment on Second Reading. She said:
“I am quite certain that lawyers will argue…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.”—[Official Report, 5 June 2006; Vol. 447, c. 33.]
However, the Government amendments show that the Government have changed their position. They now want to involve lawyers, in a misguided attempt to enhance the scheme’s credibility. I believe that that will make the process more adversarial. Involving lawyers risks causing whoever is involved in the fact-finding investigation to clam up. We do not want lawyers asserting or defending legal rights, as that will import into the process considerations of fault and defensiveness, whereas we believe that the investigation needs to be open and transparent. The Government proposals are the worst of all worlds, and will add to precisely that blame culture that the Minister says that he wants to avoid.
In addition, there is the question of cost. The more lawyers involved in the investigation, the greater will be the cost—to the scheme and to the NHS and at the expense of patient care. In other words, if more money is soaked up in lawyers’ fees, less will be available for patient care.
The NHSLA annual report for 2006 came out a couple of days ago and made reference to the problem. The Government may think that only the Opposition are concerned that ever higher costs will divert resources away from patient care, but the report states:
“The Authority remains concerned about the relatively high legal costs which are often incurred in clinical negligence claims, and which do not benefit either injured patients or the NHS.”
Yet the Government want to involve more lawyers earlier in the process.
The added costs might be worth while if it could be shown clearly that they added value, but the evidence suggests that they would not. The objective measure of the performance of so-called specialist lawyers is worth considering. In a letter to a member of the public dated 7 November 2002, the Legal Services Commission stated that, since August 1999, only specialist lawyers had been able to start new cases on legal aid. In 2000-01, the overall success rate in clinical negligence cases was 23 per cent. for specialist lawyers, and 24 per cent. for non-specialist lawyers.
According to a written answer to me on 17 January 2006, in the last year for which figures were available, the overall success rate for legally aided clinical negligence cases had remained at 23 per cent. The figures are revealing. First, they show that about five or six years ago, when ongoing legally aided clinical negligence cases had specialist and non-specialist lawyers, the performance of both categories of lawyers was roughly comparable. Secondly, even though legal aid was made available only to specialist lawyers in 1999, the figures show that there has been no improvement since then in excluding opportunistic and unsustainable claims.
We feel that lawyers should be restricted to the offer stage. Involving lawyers would replicate the problems of the adversarial litigation system. It would add to the cost of the redress process and subvert its functions, with the focus on compensation rather than on explanation. In many cases, involving lawyers would be the worst of all worlds; it would import the bad aspects of the judicial process—expensive lawyers, protracted cases and complexity—without the benefits of finality and independence. It would certainly add considerably to the cost of the scheme––money that would be better spent on patient care—
It being Five o’clock, Mr. Deputy Speaker put forthwith the Question already proposed from the Chair, pursuant to Order [5 June].
Amendment agreed to.
Mr. Deputy Speaker then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.
Amendment proposed: No. 5, in page 5, line 1, leave out paragraph (a).—[Mr. Baron.]
Amendments made: No. 13, in page 5, line 1, leave out ‘in connection with proceedings under the scheme’.
No. 14, in page 5, line 2, at end insert
‘to individuals seeking redress under the scheme’.
No. 15, in page 5, line 12, at end insert—
‘(4) A scheme that makes provision for the provision of the services of medical experts must provide for such experts to be instructed jointly by the scheme authority and the individual seeking redress under the scheme.’.—[Andy Burnham.]
Amendments made: No. 16, in page 5, line 29, at beginning insert ‘Subject to subsection (2A),’.
No. 17, in page 6, line 16, leave out paragraph (j).
No. 18, in page 6, line 17, at end insert—
‘(2A) A scheme must require a member of the scheme to prepare and publish an annual report about cases involving the member that are dealt with under the scheme and the lessons to be learnt from them.’.—[Andy Burnham.]
Order for Third Reading read.
I beg to move, That the Bill be now read the Third time.
I am pleased to be able to send the Bill back to another place, and I hope that their lordships will give it their blessing. Although there remain some differences between ourselves and Opposition Members that we have discussed today, there is a good measure of consensus on the Bill. There is a belief that this is a good Bill that will change for the better the lives of patients who have been harmed during the course of their NHS health care. I am pleased with the Bill and firmly believe that it has benefited from the scrutiny that it has received. During its passage through this House, we have given it a thorough examination. The Government have listened and responded to points raised in debate, and we have amended the Bill accordingly.
Importantly, following debate in another place, the Bill was amended to enable the scope of the redress scheme to be enlarged. The scheme may now extend to services over and above hospital services. That addressed concerns that the scheme would be incapable of adapting to the increasing diversity of NHS health care provision, as the NHS moves towards the greater provision of what have traditionally been secondary care services in primary care environments.
Following debate in Committee, we accepted that redress will now ordinarily include not only an offer of compensation, an explanation and an apology, but the giving of a report on the action that has been or will be taken to prevent similar cases from arising. I say again that that is what our constituents overwhelmingly want when they come to us with complaints about their NHS treatment. They want to ensure that people in their locality do not go through a similar experience; they want things to change for the better. We have taken on board the fact that patients often want to know what measures have been or will be taken to ensure that the mistake does not happen again.
We have also accepted that the scheme must now provide for an investigation report to be prepared and given to an individual on request. That was in response to the persuasive arguments that providing patients with investigation reports will better ensure an open and credible investigation. We believe that that will provide additional reassurance to individuals that their cases will be properly investigated, but of course if an individual believes that the investigation by the scheme member falls below the acceptable standard, the ombudsman may ultimately provide an independent review of any complaint.
Furthermore, the scheme must now require members to publish an annual report about cases dealt with under the scheme and lessons to be learned. We have taken it on board that there should be a guarantee that annual reports on lessons to be learned will be prepared and published.
Additionally, we have accepted the point, made eloquently today by my hon. Friend the Member for Birmingham, Erdington (Mr. Simon), that there should be enshrined in the Bill the principle of the desirability of resolution under the scheme. That is something to which members of the scheme must have regard in carrying out their duties under it. I am sure that the Simon amendment will have a positive effect in creating the open learning culture in our NHS that I believe Members in all parts of the House would like to see the Bill encourage. I am grateful to him for tabling it.
We have clarified that the free legal advice that may be provided under the scheme will be provided to the individual seeking redress, and we have inserted a new provision to make it clear, that if the scheme provides for the services of medical experts, those experts will be jointly instructed by the scheme authority and the individual seeking redress.
I firmly believe that these changes significantly improve the Bill and provide greater reassurance that the scheme established under the powers in the Bill will provide what patients want. As I have said, it is those people who are less articulate and less able to see a case through to the bitter end who may benefit the most from the scheme. In cases where harm has occurred, the NHS will take up the case, investigate it and offer an apology, an explanation and, if necessary, redress. That is clearly in the interests of patients and entirely consistent with the further reforms that the Government are introducing to create an NHS centred around the needs of the individual patient. The Bill will further strengthen the NHS in that regard.
I thank hon. Members for their contributions today and in Committee. I was pleased to give the hon. Member for Romsey (Sandra Gidley) her first success in Parliament. It was a good Committee and, despite differences on the issue of independent investigation, all Members contributed positively and the Bill is better as a result. I particularly thank my hon. Friend the Member for Birmingham, Erdington, who contributed constructively throughout the proceedings, and who has improved the Bill. I thank my predecessor, my right hon. Friend the Member for Liverpool, Wavertree (Jane Kennedy), who did so much work to prepare and introduce a Bill that is excellent in every respect.
I thank you, Mr. Deputy Speaker, as well as our Chairmen in Committee and the excellent team of officials in the Department of Health who provided support throughout the Bill’s passage. The scheme is excellent, and it will improve the national health service, so I commend it to the House.
It is with mixed feelings that I rise to speak on Third Reading. We had hoped to support the Bill, which has the worthy aim of providing an alternative to going to court for NHS patients seeking redress, but despite some lively and learned debates, both on the Floor of the House and in Committee, it is significantly weaker than the measure that was brought to the House from another place.
We thank you for supervising our debates and for your customary patience and guidance, Mr. Deputy Speaker. The principles underlying the Bill were at least tested and clarified during its passage through the Commons; I accept what the Minister said on that point, to a certain extent. I thank the Clerks for their advice on amendments and procedure, which was extremely helpful. I pay tribute to my hon. Friend the Member for Eddisbury (Mr. O'Brien), who served as Conservative Whip in Committee. He gave us the benefit of his legal training on a number of points, and I am grateful to him.
The hon. Members for Romsey (Sandra Gidley) and for Wyre Forest (Dr. Taylor), helped to ensure that our attempts to improve the Bill were pursued on cross-party lines. I am grateful for their support, which built on the amicable partnership established by noble Friends in another place. I, too, thank all Members for their contributions, both in the House and in Committee. I commend the Minister on guiding his first health Bill through the House, although trying to pin him down on some of the issues has been a game of cat and mouse. However, we can save that subject for another day.
The overall objective of the Bill—to provide an alternative to going to court by creating a redress scheme—has been widely welcomed. As we know, clinical negligence litigation is complex, costly and basically unfair. Most people do not qualify for legal aid, yet most cases are legal aid-funded. Most clinical negligence cases fail because legal aid is the fuel for unmeritorious claims. A scheme established under clause 1 could widen access to redress and offer patients what they say they want most: a proper and honest investigation into what went wrong, an explanation and, when appropriate, an apology—there is no difference between us on that. Under clause 3, an offer of compensation might be appropriate, but financial redress usually comes far down the list of patient priorities, as a number of Members have said.
The Minister will know of my great disappointment with the Bill in its current form. I do not believe that the fact-finding stage of the investigation will inspire confidence in patients, because the investigation will not be independent. What is more, the objectivity of the fact-finding investigation is likely to be subverted by the involvement of lawyers under clause 8. Many features of the current disastrous system for dealing with clinical negligence have been imported into the redress scheme, and overall the Bill will not succeed in shifting the culture of the NHS towards one of greater openness and transparency that we all want.
Clause 6 is the offending article, because it would allow the NHS to act as both judge and jury in investigations by the trusts. We have consistently argued that someone independent of the trust should conduct the investigation. Patients go to court because they want compensation and an independent investigation into what went wrong during their treatment. In seeking to provide an alternative to litigation, we should have regard to that basic need.
Clause 6 is flawed because it does not address such a need. Instead, it allows for the investigation to be carried out by the trust under investigation. That will not inspire confidence in patients and without that confidence, the Bill is likely to fail. The Minister is aware of this complaint, which has been raised by many hon. Members and by many patient groups. However, he seems to be more concerned with reassuring NHS staff than he is with reassuring NHS patients. He has insisted that under the scheme an investigation of facts should not be independent of the trust. He has argued that trusts should have ownership of the process in order to bring about a cultural shift towards greater openness and transparency, but to most people that is entirely contradictory.
After all, what could be more open and transparent than inviting an outsider—somebody independent—in to consider all the facts? As we have heard, it is a basic principle of natural justice that no man or woman should be a judge in their own case. The same goes for investigation of cases of possible clinical negligence. Because patients understand this principle, our pragmatic complaint against the Bill is that clause 6 will not satisfy those seeking redress. It will not provide an independent exposition of the facts.
The Opposition have similar reservations about clause 8 which, as amended, will import into the scheme the very feature of litigation that has fostered a culture of finger-pointing and blame—that is, lawyers seeking to assert or defend rights. Lawyers are costly but add limited value to a fact-finding investigation. They have no place in the scheme because individual rights are not being contested. Liability is assessed, rather than determined. They are likely to soak up resources originally intended for patient care, with every incentive to push claims beyond their merits.
Lawyers need to be involved only where legal rights are being determined—that is, in relation to an offer of settlement. Specialist legal representation under clause 8 will not guarantee the independence of the investigation. It will merely encourage confusion between fact-finding and fault-finding within the scheme. Accusations of blame will contaminate the objective consideration of facts. That will lead to a more closed and defensive culture among NHS staff. Important lessons will not be learned.
Again, the Bill works against the stated aims of the Government. It contradicts the opinion expressed by the Secretary of State on Second Reading that lawyers should be kept out of the early stages of the investigation. It also flies in the face of the recommendation of Sir Liam Donaldson, who argued for a move away from the adversarial culture associated with tort.
My deepest frustration with the Bill is that it adds almost nothing to what can be done already. It is unnecessary, in many respects. NHS trusts already have the power to investigate themselves where cases of possible clinical negligence are identified. The Litigation Authority already has the power to make an assessment of NHS liability and offer compensation accordingly. The Bill simply formalises these existing powers. One of the few new things that it provides is free legal advice. That sounds good, but it could be a costly mistake, as experience of legally aided clinical negligence litigation suggests.
As amended, the Bill provides for a report on the investigation to be made available to patients, but it then goes on to establish reasons why the report can be withheld in some cases, although I appreciate the Minister’s attempt at clarification on the matter. That was revealing, for it shows how the Government’s priorities are focused on the interests of the NHS Litigation Authority, rather than on the needs of patients, in some respects.
In conclusion, we were happy to vote for the Bill on Second Reading, but since then we believe the Government have greatly undermined its potential. The whole direction of travel has been towards a scheme which leaves the trust acting as judge and jury in its own case while simultaneously importing the bad features of clinical negligence litigation. Having damaged the Bill, the Government do not deserve our support. For this reason and with great disappointment, I shall ask my Conservative colleagues to vote against Third Reading.
I rise to speak on Third Reading with mixed feelings, because I felt at many stages during the Bill’s progress that there was a lot of genuine consensus based on honesty and openness, on trying to ensure that patients could have a means of redress, and on facilitating that in as many ways as possible. Unfortunately, we have reached a point where there is a fundamental difference between Members on either side of the House on how we achieve those ends.
The Committee stage of the Bill was unusually short, which was a first for me. I thank the hon. Member for Billericay (Mr. Baron) for his co-operation, the Committee Clerk for his forbearance, and the Chairs. I thank my hon. Friend the Member for Southport (Dr. Pugh), who supported me in Committee. I also thank the Minister. It is somewhat unusual to put forward arguments and find them genuinely listened to and accepted. I pay great tribute to him for that.
Well, I think that we are sometimes too quick to criticise and not to give credit where it is due. I am hoping to start a new trend, although I do not think that I will succeed. The amendments that the Minister accepted were welcome because they have strengthened what the patient can expect under the Bill.
The Bill was better when it came from the other place, which is why we were happy to support it on Second Reading. Sadly, the principles of independent investigation have in effect been removed. It is a struggle to balance the importance of that against the importance of all the good things in the Bill. A big part of me does not want to vote against the Bill, because it is a step forward, but losing the fundamental principle of an independent investigation will lead patients to not have the faith in the Bill that they otherwise could and should. It is with some regret, but to underline the importance of the strength of feeling on the matter of independence, that Liberal Democrats will vote alongside the Conservatives.
I am conscious that the Whips want to get home for their tea, so I will resist the temptation to dwell on what Opposition Members have said about legal advice, save to say that the whole tone of their remarks was so ill-judged as to be irresponsible and dangerous, and stems from a fundamental lack of understanding of what the Bill is about and a failure to understand the subtleties and complexities of clinical negligence and surrounding issues.
No. Hardly anybody gave way to me in Committee or this afternoon, so I will just make my brief remarks and sit down.
I spoke more than once on Second Reading and in Committee about different ways in which the Bill could have been dealt with from the beginning and different ways in which it could have been improved throughout. Most fundamentally, if I had designed the Bill, I would not have based it on the rather limiting test of liability in tort, but tried to develop a more modern, flexible and patient-centred avoidability test. For me, that is the key remaining weakness, although there is no reason why such issues should not be considered in future. My hon. Friend the Minister said that the operation of the Bill and the scheme will be reviewed. I urge him to examine those matters in the future.
On the whole, the scheme and the Bill are good. It could make a genuine difference to people’s lives at times of sickness, and to their relations with the NHS when it lets them down and they try to deal with that. I am pleased with and proud of the way in which the Bill has developed and changed. I sincerely recommend it to patients and patient consumer organisations.
My hon. Friend the Minister has provided a masterclass in listening government. He has trodden carefully and chosen wisely. He has done that with tolerance and good humour and won grudging plaudits from some Opposition Members. He has my wholehearted admiration and thanks. Until today, albeit on occasions, most Opposition Members had made a good fist of it, and my thanks and congratulations go to them.
The Bill was basically good all along. It is now immeasurably better for having been through Parliament. One cannot say either of those things about many measures. Having been involved with a Bill that satisfies both criteria, we should count ourselves lucky and commend it to our constituents and concerned organisations.
I shall not keep the Whips from their tea for more than a few moments, but I cannot resist telling the Minister that he is in danger of making me change one of my after-dinner speeches. My limited experience of Standing Committees has been uniformly depressing and frustrating. When I served on a Committee a long time ago, a senior Member whispered in my ear that he had tabled 600 amendments and not one was accepted. Yet an amendment to the Bill has been accepted. That is absolutely brilliant and I commend the Minister for that. He will be known as a listening Minister, and I hope that that will not be perceived as a sign of weakness and that he will continue to listen and take points.
Having said that, I still have two genuine worries. Sadly, I do not believe that we conveyed clearly what we meant by independence. I hope that the involvement of legal representation in the fact-finding part of the investigation will not increase the complexity of the process, make it adversarial or increase the stress levels for patients, relatives and staff. The medical profession abominate the involvement of the legal profession, as I am sure hon. Members realise.
I hope that, in time, advantages will be perceived in aligning the redress scheme more closely with the NHS complaints procedure, as “Making Amends” suggested.
Question put, That the Bill be now read the Third time:—
Bill read the Third time, and passed, with amendments.