My Lords, I beg to move that the Commons amendments be now considered.
Moved accordingly, and, on Question, Motion agreed to.
[The page and line references are to Bill 137, as first printed for the Commons.]
1: Clause 3, page 3, line 3, leave out “and”
2: Page 3, line 4, at end insert “and
(d) the giving of a report on the action which has been, or will be, taken to prevent similar cases arising,”
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 1 and 2. This group of amendments deals primarily with the provision of reports to individual patients, and annual reports.
Amendments Nos. 1 and 2, made to Clause 3(2) in the other place, provide that redress will now ordinarily also include the giving of a report on the action that has been, or will be, taken at local level to prevent similar cases arising. During the debate in both this House and another place, the point has been well made that patients harmed during their NHS healthcare often say that they do not want that to happen to anyone else.
There will be occasions where mistakes can simply be ascribed to genuine human error or where no procedural changes need to be made, and there a report of that type will not be appropriate. In these specific types of circumstances, the scheme may provide that a report will not be necessary. Ordinarily, though, such a report will now be provided.
Amendment No. 6, agreed in the other place, requires the scheme to provide for the findings of an investigation to be recorded in a report, which is to be made available on their request to the individual seeking redress. To reduce unnecessary bureaucracy for scheme members, we do not wish to impose an extra burden on them to provide the investigation report in every case. In some cases, an explanation may be adequate, but these amendments now ensure that, ordinarily, the investigation report will be provided if requested.
The amendments enable the scheme to provide that the report need not be provided before an offer is made or before proceedings are terminated, which is also intended to reduce the administrative burden on scheme members. It is envisaged that when the offer of redress is made an investigation report will be sent to the individual, where they want a copy of it. That will give them a complete set of documentation, which they can then consider with their legal adviser when the offer under the scheme is being assessed.
The amendments also enable the scheme to specify other circumstances where the reports need not be provided. That is intended to be used for rare cases where, for example, the person seeking redress is not the patient and it is considered appropriate to withhold certain confidential health information. I wish to provide reassurance that any exceptions will be the subject of full consultation.
I hope that the amendments made in the other place will satisfy noble Lords that we fully intendthe investigative process to be transparent. The investigation report will not be kept back on grounds that it is privileged, nor will it be claimed that investigation reports are “without prejudice” and inadmissible in any subsequent legal action.
Regarding Amendments Nos. 11, 14 and 15, it has been 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 learnt from them. However, Clause 10(2)(i) provided that a scheme may require a member of it to prepare and publish an annual report about such cases and their lessons. These amendments are a response to the discussions that have taken place in both this House and another place. They place on the face of the Bill a requirement on scheme members to publish an annual report. The “may” has been replaced by “must”.
Amendments Nos. 12 and 13 are minor drafting amendments and clarify existing policy. Amendment No. 12 leaves out the words “a specified person” in Clause 10(2)(h) and replaces it with the words,
“an individual of a specified description”.
The amendment makes clearer the intention that the scheme may require a member to give an individual of a specified description responsibility for overseeing the scheme. The provision will enable the schemeto specify qualifications and experience, to be determined after consultation with stakeholders, that such an individual must possess to undertake the role.
Amendment No. 13 splits Clause 10(2)(h) to avoid any implication that only a person who has given responsibility for overseeing the carrying out of functions can be given responsibility for advising on lessons to be learnt. As we draw up the secondary legislation, we may wish to enable bodies to appoint two different types of people to carry out the two functions. For that reason, it again seems preferable to retain flexibility by splitting up the function. I commend the amendments.
Moved accordingly, and, on Question, Motion agreed to.
3: Clause 6, page 4, line 10, leave out “(3) and” and insert “(2A) to”
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3.
Amendment No. 3 is a drafting amendment consequential on Amendment No. 6, which we discussed in the last group and Amendment No. 7 is a consequential drafting amendment to Amendment No. 10, to which we shall come later. It may be convenient for the House if I explain the legal advice that I have received on Amendments Nos. 3A, 3B, 7A and 7B.
I understand that the amendments question the drafting of Clauses 6(1) and 8(1). The noble Earl, Lord Howe, has written to me about this. I know that he is concerned that the wording of Clauses 6(1) and 8(1) could give rise to ambiguity or incoherence. I have consulted my legal advisers—we have been back to parliamentary counsel on this—and I am satisfied that there is no realistic risk of that. I hope that I can provide some reassurance. This will be rather technical, but it is important that we put this on record.
The general powers in Clause 6(1) are intentionally subject to the duties imposed by Clauses 6(2A) to (4). Clause 6(1) appears to give the Secretary of State an unfettered discretion, but that discretion is in fact fettered by subsections (2A) to (4). In the context of the clause, we think that it is helpful to flag up the fact that the discretion conferred by subsection (1) is not as wide as it might at first appear.
Amendment No. 3B does not assist the reader of the Bill, as his attention is no longer helpfully drawn to the fact that the Secretary of State’s power is qualified. Furthermore, Amendment No. 3B causes ambiguity and confusion as the reader’s attention is now drawn to subsection (2B). Yet subsection (2B) merely confers another power. The reader’s attention is therefore drawn to another power. The power in subsection (2B) is linked to the duty in subsection (2A), but the reader’s attention is not drawn to subsection (2A).
As I said, I have taken legal advice, including that of parliamentary counsel, and do not accept that there is, or could be, any realistic risk of ambiguity regarding the drafting of Clause 6(1). The Commons amendment to Clause 6(1) is properly drafted, according to the legal advice that I have been given. It helpfully draws the reader’s attention to the fact that the power conferred by subsection (1) is subject to the duties imposed by subsections (2A) to (4).
On Amendment No. 7, the general powers in Clause 8(1) are intentionally subject to the duties imposed by Clauses 8(2) to (4). Clause 8(1) appears to give the Secretary of State a discretion, but this discretion is in fact fettered by subsections (2) and (4) of that clause. In the context of the clause, we again think that it is helpful to flag up the fact that the discretion conferred by subsection (1) is not as wide as it might at first appear. Amendment No. 7B, again, would no longer helpfully draw the attention of the reader of the Bill to the fact that the Secretary of State’s power under Clause 8(1) is qualified. For these legal reasons, I encourage noble Lords not to pursue Amendments Nos. 3A, 3B, 7A and 7B and to accept Commons Amendments Nos. 3 and 7.
Moved, That the House do agree with the Commons in their Amendment No. 3.—(Lord Warner.)
3B: Clause 6, page 4, line 10, leave out “subsections (3) and (4)” and insert “subsection (2B)”
The noble Earl said: My Lords, in moving Amendment No. 3A, I shall also speak to Amendment No. 7A. I thank the Minister for his explanation of the amendments. I realise that the points are fairly legally abstruse. I wrote to him only because I received advice that the drafting was questionable. I note what he has said. I interpret his words as meaning that, for practical purposes, the wording is clear. As he knows, one of the issues that I flagged up was that a court, if we are to judge by case law, could interpret the word “may” as “shall”, because the power conveyed by the word “may” is fettered in the way that the Minister acknowledged. However, the Government and the Minister may be prepared to pay that price. I do not propose to press the point, and I will not press my amendment.
My Lords, as the amendment has been spoken to, I must put the question on it.
Moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 3, leave out “agree” and insert “disagree and do propose Amendment No. 3B in lieu”.—(Earl Howe.)
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 4.
When the Bill was last in this House, it was amended to require the Secretary of State for Health to make provision for the appointment of patient-redress investigators. There was to be a panel of independent investigators, and the Healthcare Commission was to maintain a list of those investigators and oversee them. The independent investigation was to be confined to fact finding, and the scheme authority was to have no role whatever in investigations. It could not even provide advice or guidance to scheme members. To refresh the memories of noble Lords, the amendments were passed here by the narrowest of margins—one vote—and were comprehensively rejected in the other place by 95 votes.
When the Bill went to Report in the other place, there was no attempt to reinstate references to patient-redress investigators or the Healthcare Commission. I believe this to have been an appropriate response. The model passed in this House suffered from excessive cost and impracticality. On that occasion, I mentioned that Department of Health economists estimated that the cost would be £41 million a year.
We are now presented with a group of amendments that would enable the scheme to provide for independent oversight of investigation, with the person overseeing the investigation required to be independent of the scheme member in question and the body or person being investigated. I suggest that this is an attempt to reintroduce the concept, firmly rejected in the other place, of independent oversight of the initial investigation. This again raises many unanswered questions, the obvious ones being: who is to provide the independent oversight; how will these people be chosen, and by whom; what qualifications are they to have; to whom, if anyone, will they be answerable; how and by whom is administrative support and accommodation to be provided; and what if the member carrying out the investigation and the independent overseer do not agree about the investigation report?
In Committee in the other place we were toldthat there would be the same administration, but operating under the direction of an independent person, so that there would be no new bureaucracy. This seems to imply that the investigation will merely be checked by an independent person but from the wording of the amendment before us, I do not know how we can be sure of that. It seems strange to be introducing at this stage in the Bill an un-thought-out set of proposals that is uncosted and which must make the whole scheme more bureaucratic and difficult to explain to patients.
It is not as though we have not provided for independent oversight, and I know that Members on the Benches opposite have been concerned about independence in this Bill. Should the investigation not be carried out properly, the Bill has in place a complaints system, ultimately to the ombudsman, who is of course fully independent of the NHS and the Government and who may be used if a patienthas a complaint about maladministration in an investigation which has fallen below the standard expected. Ann Abraham, the Health Service Commissioner, has welcomed the fact that the operation of the scheme will fall clearly within her jurisdiction subject to the usual conditions set out in the Health Service Commissioners Act 1993. She said:
“I hope the fact that an independent review of complaints about the scheme will be available will give reassurance to both complainants and the NHS bodies involved”.
It certainly gives reassurance to the Government.
The Bill also takes powers that will enable the scheme to have other elements of independence. There may, where appropriate, be independent medical advice and evidence, and free independent legal advice that must be provided to people to whom an offer of redress is made. We have existing powers in Clause 10(2)(a) which will enable the scheme to require its members to charge an individual of a specified description with the responsibility for overseeing the carrying out of specified functions. This enables the scheme itself to provide that the person must oversee the investigation at the local level and have particular qualifications and/or experience. We envisage that the person given the task of overseeing the carrying out of investigations will ensure that appropriate information is properly collected and provided to the scheme authority. This will provide an additional check on the standard of investigation.
Finally, responding to concerns expressed by noble Lords about the need for an independent check on performance in the operation of the redress scheme, we intend that consideration of the effectiveness of the operation of the NHS redress scheme, including investigations carried out under the scheme, will be included as part of the Healthcare Commission’s annual review of the provision of healthcare by and for NHS bodies. The intention is that the Secretary of State would include a new standard relating to redress and that the Healthcare Commission would include new criteria against which the operation of the scheme would be reviewed. This role can be taken on by the Healthcare Commission without the need for any amendment to its existing powers. Because I know of the concerns about independence, I have gone through this to demonstrate the wide provision in the Bill for independent elements at the various stages.
I want to say a little about natural justice because the term has been bandied about in this context on the issue. We need to be clear whether it is at stake here. It has been said in the Commons Committee that:
“Independence is a basic principle of natural justice enshrined in the rule against bias that no man may be judge in his own case”.—[Official Report, Commons Standing Committee B, 26/706; col. 1539.]
That is absolutely right, but the rules of natural justice are rules of procedure. The common law recognises procedural fairness and this same principle is reflected in the rights contained in the European Convention on Human Rights. If decisions are being taken which determine a person’s civil rights and obligations, then the requirements of Article 6 of the European Convention on Human Rights must be met. There must be a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. We accept that.
However, the redress scheme will not involve any determination of civil rights and obligations. An offer may be made to a complainant, but it is only an offer. No rights will be determined when cases are investigated under the scheme in an effort to resolve disputes without having to go to court. It is standard practice for potential defendants to investigate, to try to discover what happened, and, if appropriate, to try to resolve matters without legal proceedings. Neither the rules of natural justice nor the rights under the European Convention on Human Rights require an independent investigation procedure to be established under the redress scheme. We have gone into this with a great deal of care, and this is the established legal advice in this particular area. There is no question of the NHS or the NHS Litigation Authority acting as judge in these cases.
I fear that some of the objections in this area lose sight of the purpose behind this Bill: to provide patients with the speedy resolution of low-value monetary claims without the need to go to court. We do not intend to set up a second independent judicial process or to duplicate the existing court systems. Throughout this Bill, we have argued that where a mistake is made, it is right that the scheme member promptly investigates the case, where appropriate makes an offer to resolve it, and learns from the mistake. If we remove or in some way fetter that responsibility, we damage the integrity of the scheme.
I must stress that the proposals put forward in this amendment are bound to lead to considerable additional bureaucracy, and they must lead to some costs—we do not know at the moment what those costs would be. It would mean there was no single body with overall responsibility to ensure consistency of approach, cost-effectiveness and good standards. If investigations are to be independent, it is hard to see how a separate bureaucracy is to be avoided, even where the role is limited to oversight. This is why we believe we should accept the Commons amendments, and not pursue the ideas and proposals in the amendments to them.
Moved, That the House do agree with the Commons in their Amendment No. 4.—(Lord Warner.)
4A: Line 1, at end insert “and insert “in accordance with natural justice such that the person overseeing the investigation is independent of the body or person 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);””
The noble Earl said: My Lords, I beg to move Amendment No. 4A and shall also speak to Amendment No. 5A and Amendment No. 16A. I have listened carefully to the Minister and thank him for his full remarks. I would be the first to acknowledge that we have come a long way during the course of this Bill. There are a number of amendments incorporated into it as well as undertakings given by the Government that are positive and welcome. Yet it is with disappointment as well as a sense of genuine puzzlement that we on these Benches view the Government’s resistance to the single most important concept which we have sought to introduce into the Bill and into the scheme—independent oversight.
We genuinely want this scheme to work. I am not in the business of making life difficult for the Government just for the sake of it. We all know and all agree that there needs to be a workable alternative to civil litigation for patients who feel aggrieved about treatment they have received from the NHS. One of the main ingredients of a workable alternative is that it has to be credible. It has to command confidence. Patients have to believe that it will produce a fair result. What have we got? We have a scheme that will see a patient’s application for redress disappear into a closed process, one that is the very opposite of transparent. The patient has no idea whether the facts of his case have been looked at fairly or fully.
Additionally, we have, examining the claims and acting as the scheme authority, a body that is a part of the NHS itself. The NHSLA is not, in a true sense, independent of the interests of the trust whose actions it will be examining. Why is it not? Because one of the main functions of the NHSLA at present—a function which it fulfils with considerable success—is to defend the health service against claims made against it. That is essentially its current role. It is there not to take the patient’s part but to act on behalf of the NHS. How can patients regard the NHSLA, for all its in-house expertise, as having the necessary degree of objectivity and independence to do what is fair and right? They surely cannot. That is why we have sought at an earlier stage, with the approval of the House, to introduce amendments designed to import into the process that vital element of independence.
It is important to emphasise one thing here: independent oversight is needed at the initial stage of the process when the facts are being assembled. It is not necessary or appropriate thereafter. I am not suggesting that there should be independent oversight of the NHSLA when it comes to consider issues of fault and liability—it will consider those issues and make an offer of compensation at the end or not as the case may be; the patient can take the offer or leave it—but unless the patient is confident that the factual basis on which his claim has been considered is accurate and fair, it is very difficult to see how the scheme will command his confidence.
There are all kinds of ways in which this element of independence could be imported. At Report stage I proposed that there should be a panel of independent redress investigators, who would act rather as a coroner does when conducting an inquest. I am not bringing that idea back because the Government have told us repeatedly that it would be too expensive. In these amendments I am asking the Government to accept the principle of independent oversight of the fact-finding part of the process. I am not being prescriptive about how this should be achieved—after all, this is largely a skeleton Bill; a great deal will be left to regulations—but, as one idea, I would propose that where the actions of a particular trust were the subject of a redress claim, a non-executive director of a different trust could be brought in to provide the necessary element of independent scrutiny and oversight. The cost of such an arrangement should not be a factor. Indeed, it should be no greater than the cost of the Government’s proposals. Someone has to be responsible for ensuring that the trust assembles the facts of a case fairly and fully. Instead of it being someone within the trust itself, I am saying that it might be someone from another trust. The cost implications are surely de minimis.
My amendments preserve the concept of independence, to be fleshed out in regulations, and they also preserve the necessary accompaniment to independence—the separation of fact-finding from fault-finding. The scheme itself covers both elements but the wording is designed to make clear that there are two separate processes—fact-finding and fault-finding—under the aegis of the trust and the NHSLA respectively.
In another place, the Minister, Andy Burnham, conceded that the scheme would have to comprise de facto a two-stage process. I suggest, therefore, as regards this point, that there is not much separating the Minister and me. Indeed, one has only to look at Section 2 of the Inquiries Act to see that the separation of fact-finding and fault-finding is one that the Government accept as a way of achieving a ready separation between what is privileged and what is not privileged and as being conducive to achieving natural justice.
Natural justice is what these amendments seek to achieve. I note that the Minister argues that this concern is out of place in the context of the redress scheme. I am sorry to hear him say that, because I disagree. It really is a question of patient confidence in the scheme. It is, I suggest, a nicety to point out that this is not a judicial process. Of course we agree that it is not a judicial process, but the patient will want fairness. I very much hope that the Minister can take these points on board and I look forward to hearing what other noble Lords have to say. I commend the amendment to the House.
Moved, as an amendment to Commons Amendment No. 4, Amendment No. 4A.—(Earl Howe.)
Lord Hughes of Woodside: My Lords, I hesitate to intervene in this debate, since health matters are generally considered to be outwith the remit of Scottish Members. However, the issues of redress, and of confidence in the medical profession and the health trusts, are very important. I do not know how we will get that confidence. In all the cases I have dealt with in my years as a Member in the other place—and in some personal experiences, which I have related to this House before and will not repeat, as the issue is now resolved—generally speaking, people who do not have confidence in the system will never accept a decision that goes against them. That is the nub of the problem.
I honestly do not know how one can get independence in the health service. The noble Earl suggests that someone from a different trust could be brought in. If my memory serves me correctly, this often happens with police authorities: a chief constable from one authority is brought in to oversee, or look at the problems in, another authority. What is the cry? “You cannot trust the police to investigate themselves.” I suggest that exactly the same thing would happen in this case. It is quite wrong to sow the seeds of the suspicion that the medical profession cannot investigate itself. For my sins, I sat as a lay member of the General Medical Council on its old disciplinary committee. I was constantly told that, although I was a lay member and independent, I could not be trusted because, not being a medic, I would automatically accept the views of the medical profession. All I say in this debate is that we have come a long way with this Bill. I wish we could achieve an absolute guarantee of transparency, of fairness, and that in every case the right result would be achieved. What we can hope for from this Bill is that the progress made will lead to more satisfaction, less delay and better care of the patient.
Baroness Murphy: My Lords, I was a strong supporter of this Bill at Second Reading. It is fundamentally worthwhile to get early resolution of these cases, keeping down legal fees and the frustration of patients. I have administered complaints systems in the NHS for the past 15 years or so. The problem has always been that when local resolution fails in-house, and goes on to the next stage of the convenor system, it is perceived by patients to be partisan. As one patient’s relative said to me: “You think you are appealing to an independent person, and you get an answer on the headed notepaper of the organisation you are complaining about”. The system thereby encourages people to seek independent legal advice. Unless we have, in here, the principle that the fact-finding, at least, should be independent, we will not encourage patients to accept the fact-finders’ reports., We should remember that fact-finding is usually the most disputed part of the case.
I know the Minister is concerned about the costs, but we do not yet have regulations worked out. There is everything to play for in the practical implementation of the scheme. We know that it is possible to set up panels of people from the local community to do a number of jobs around the NHS, very professionally, with the right support and training, without incurring costs. For example, people who serve on research ethics committees have to do very complex work for which they do not get a great deal of financial reward. They do it because the work is interesting.
It can easily be worked out how these schemes could be administered so that there was an independent fact-finding element. We have heard of one possibility which I believe would be quite practical. In any case, fact finders will require training, and that will cost, whether it is done in-house or out of house. It is a detailed job that needs a lot of professional work, but it does not have to be expensive.
This issue could be delegated to regulations but having an independent fact finder is such a fundamental principle of an effective complaints system that it should be in the Bill. It would add immeasurably to the confidence that patients have in the scheme, which is why I have added my name to Amendment No. 4A.
My Lords, I thank the Minister for the things he has said that have given us a degree of comfort. I speak on this amendment again, in sadness more than anger. This has been a long-running saga, as the Minister indicated, and I pay tribute to him for accepting that some level of independent oversight of the NHS redress scheme is necessary. He stated in terms back in February that the Healthcare Commission would make looking at how the scheme works part of its annual review,and he has repeated that today. The Healthcare Commission is regarded as independent, and that is good news. But as my noble friend Lady Barker said in further consideration of the Bill, and as the noble Earl, Lord Howe, said from the Conservative Benches in previous debates, this is still not enough. We accept that both sides can instruct an independent medical expert, but even that is not adequate when there is no clear fact-finding separate from the fault-finding.
The Minister will forgive me if I go back to an earlier time in my life, when I was part of the advisory group that worked up the previous complaints system. We all, in good faith, believed that an in-house complaints investigation system could work. He will also know, because this will have landed on his desk now and in his previous incarnations, that we were wrong. As an NHS chairman, like the noble Baroness, Lady Murphy, I chaired a community health service NHS trust and had to sign off the letters responding to complaints. Very often, I felt that the trust had investigated itself fairly. Sometimes I did not. Either way, it was equally clear that the punters outside—the patients and their families—were dissatisfied because no one outside had had a proper look.
I know the Minister will tell us that this would add hugely to the costs; he has already done so. Let me put it to him like this: whether investigation is done internally or externally, as the noble Baroness, Lady Murphy, has already said, someone has to be paid to do it. They also have to be trained and their activities monitored. Irrespective of being inside or outside the trust concerned, that is the case. If, for instance, non-executive board members from neighbouring trusts were to carry out and supervise the fact-finding, I cannot see why that would be more expensive than the board members or the employees of the trust itself doing so.
Why does the Minister think that it would cost so much more when the amount of time spent on investigating complaints by the trust’s own staff is also considerable? It does not make sense to me. What does, however, make sense is that patients and their families have little faith in a wholly internal system of investigation of complaints. We were wrong when we thought they would have confidence, and we need to recognise that for what it is—a fact. Given that, surely the Minister can see some way to allow fact-finding before any assessment of fault, independent of the trust concerned. Surely he can see that it would be perceived as fairer by the patients and their families to go down that route.
Given that the scheme authority is to be the NHS Litigation Authority—we all feel that it has a clear role to play here—it might be thought that a wholly internal investigation conducted by a trust, although at a distance under the NHSLA’s auspices, could amount to a conflict of interest. The NHSLA, as the noble Earl, Lord Howe, has already said, has legitimately to try and keep the lid on compensation payouts to the public. Many of us would say it was quite right that it should do so. That means, however, that it does not necessarily have the interests of individual patients close to its heart. However, if the NHSLA is the body that makes the offer but the investigation that went on before had an independent element within it, people might trust the system more. The non-exec route is one possibility, while groups like the people who serve on research ethics committees are another. That is still to be debated, and regulations are still to be written. The system might not then be seen to be unfair, with a trust likely—in people’s minds, at least—to exonerate itself, and a scheme authority wanting to keep the payouts low.
The advantage of independent oversight of fact-finding also goes to the heart of the Chief Medical Officer’s original intention in Making Amends. He wanted to see the National Health Service become a learning organisation. If fact-finding is independent but it is people within the broader NHS family, such as those who serve on research ethics committees and other non-execs from neighbouring organisations, who discuss the matters with those they are investigating, there does not need to be an automatic blame culture. Things go wrong and mistakes happen, but they can be discussed within the organisationwith sympathetic but outside supervision of the investigation before the fault-finding even begins.
In his consultation paper on the governance of doctors, Good doctors, safer patients, published last July, the Chief Medical Officer, Sir Liam Donaldson, put forward a two-stage scheme for investigating doctors. I quote:
“In serious fitness to practice cases … investigation … should be carried out by the General Medical Council but formal adjudication should be undertaken by a separate and independent tribunal”.
That was clearly in reference to serious cases, but earlier in the same report he had argued that:
“As the complexity of both medicine and the system within which it is delivered increases, the General Medical Council cannot reasonably be expected to fulfil the roles of complaint recipient, processor, investigator, prosecutor, judge and jury. Involvement of a single organisation in all of these processes brings with it difficulties that are philosophical, presentational and practical”.
I could not have put it better myself. What Sir Liam wrote may apply to medical regulation, but the principle applies to any scheme where one authority is to be in charge of both the investigation and the redress, hence our continued demand for an independent element in fact-finding and our desire for it to be seen as being separate from fault-finding. That is why we are back here at this stage, making the point yet again.
The Government have accepted that this is a two-stage process. We know the scheme is relatively inexpensive; we all recognise and applaud that. Indeed, when we were originally told of the Bill’s arrival, we were all delighted. Such an attempt to help in cases of clinical negligence is long overdue. If it is to work, however, it has to have certain elements: independence—we have been arguing for it each time we have come back to this subject—sufficient for patients to trust the fact-finding involved, and it has to carry trust more generally.
We are not alone. Just to make the point even clearer, the chairman of the Bar Council has written to me on the subject this very week. The very distinguished noble Lord, Lord Patel, who expresses his regret that he cannot be here, has written to me saying how strongly he supports the desire to have independence here. InterResolve has written about it. The noble Lord, Lord Hughes of Woodside, has made the point.
It gives us no pleasure on these Benches to keep pressing for a reasonable level of independence in the scheme, and it gives me no pleasure to say that the NHS Litigation Authority on its own will not be seen as independent as the scheme authority without an independent element in fact-finding. The Healthcare Commission’s oversight and the responsibility of Ann Abraham as the ombudsman give us some comfort, but that is not yet enough. I hope the Minister will see his way to accepting that this amendment and those that go with it are intended to bring some public trust to this scheme, and that he will recognise that it is not that expensive. The costs do not need to be huge, as the investigation has to happen anyway.
We all want to see a good, solid, trusted NHS redress scheme. I hope the Minister will give us the assurance that we can have some real independence in the fact-finding in this process.
My Lords, it is often a very simple matter to deduce why the Commons has rejected amendments passed in this House, but I am puzzled about this one because surely it is unarguable that no verdict can be seen as just if those reaching it are biased or clearly linked with one side of a case. I listened most carefully to what the Minister said. I am bound to say that I am still just as puzzled as I was at the beginning because none of the points that he made alters those facts. A decision made by people who are biased will be rejected by those on whom that decision must rest. The Minister says that they can always go to the ombudsman, but is that the best way to look at it? Do we say that our courts need not have unbiased judges and unbiased juries because the matter can always be taken further? Surely not. In this case we are dealing with people who deserve justice and deserve to see that justice is being done.
The Minister pleaded the case that the cost would be too high. Is it too expensive to have justice? Is it too expensive to ensure that decisions made in this land of ours are reached fairly and justly? I think not. I have argued for years that natural justice is not served when suspended hospital doctors are judged by those who suspended them. No judge in any court would have his judgment accepted if he were known to be very much on the side of those to whom he awarded a favourable verdict. Even the chairman of the most modest and humble committee is expected to be impartial. Surely investigation must be not only open and conducted solely on facts but clearly seen to be exactly that. Do the Government not recognise that deep resentment will be caused in doctors and patients if this un-British amendment of the other place goes through? Is the Minister impressed—I hope that he is—by the fact that noble Lords on all sides of this House are begging him to accept that we need to have a just conclusion to these matters?
Is the Minister not moved by the fact that many people outside this place have written to us about this matter, as the noble Baroness has just pointed out? I have received letters and I have no doubt that other Members of this House have received them as well. I felt so strongly about this that I was determined to make a small speech. It is such a basic point of justice that I could not keep silent.
My Lords, I consider that we do have a just conclusion. I am sorry that I did not get my points across clearly. I shall reiterate briefly one or two of the points that I made and challenge the amendment’s intellectual basis.
In my opening remarks I mentioned the number of elements in this scheme which have a fair degree of independence. I mentioned independent legal advice and independent medical advice. There are provisions in the Bill that you can make requirements on the experience and qualifications of the investigator. There is the ombudsman waiting in the wings for complaints. There is the Healthcare Commission, which I think everyone will agree is very independent, and it is overseeing the functioning of the scheme.
Let us examine what the Commons actually rejected. By a majority of 95 votes, it rejected a proposal from this House, which was passed by one vote, that there should be a panel—I am not making this up; this is what was passed—of patient redress investigators. It has rejected that idea of a panel of independent investigators. We are now coming back, as far as I can judge from the amendments, to a panel of independent overseers. Some would cynically say, “What’s in a name?”. Let me explore what the overseer does. I am not altogether clear on it. Does he or she sit on the shoulder of the investigator? How far do they follow through the investigation? Are they a duplicate investigator? Is that what this House is providing in the Bill? That provision was rejected by the other House.
I have not heard any answers in any of the speeches that have been made to the questions that I raised about this proposal in my opening remarks, yet people want to place this in the Bill. I am going to repeat those questions, because they are relevant. What if the member carrying out the investigation and the independent overseer do not agree about the investigation report? That is not fanciful; that is quite possible. Who resolves that conflict? Who provides support to the overseer? Does the overseer just come along and decide whether they like the look of the draft report at the end of the process? Do they track the quality of the investigation by the investigator? How do they monitor and carry out their oversight arrangements? Those are the practical things that would determine whether the scheme works well.
The scheme has been introduced at the very last knockings of the Bill without any explanation of how it would work. If the Government come along and have a go at making a general provision, rightly we are interrogated in Committee about the details of those schemes. Here are the opposition Benches coming along and trying to put in the Bill a set of proposals that have not previously been discussed, for which they can give no explanation of how they would work or how much they would cost. I am charged with exaggerating the costs; I do not know what the costs are. I cannot see how it would work in a very clear way if we do not know exactly what the overseer would do or how much detail they would have to give to the investigation.
The noble Earl, Lord Howe, said that it is said that patients will have no idea whether their claim has been investigated fairly. However, the Government have tabled an amendment to explicitly require the redress scheme ordinarily to provide an investigation report to be prepared and provided to the individual. That is a new approach. The individual sees that investigation of the facts, and they are then in a position to challenge that report if they think it is unfair, using legal advice and independent medical advice. We have put things very clearly in the Bill that support the independence of the investigation and will ensure that patients are properly supported. We have learnt from the past; we have introduced changes here that make it much more likely that patients will get a fair shout on this issue. I come back to the point that we really do have to know how an overseer system would work, because it looks remarkably to me like the panel of investigators by another name, which was rejected by 95 votes in the other place.
My Lords, the Minister said much that was helpful, but I am extremely disappointed that he has not acknowledged the central point of principle here. He acknowledged it obliquely by listing those elements of the scheme that will provide a measure of independence. Yes, we can assume that the legal and medical advice received by a complainant will be independent. The ombudsman is clearly independent, as is the Healthcare Commission, but my concern is that patients look at the scheme and see a closed process that is not transparent as it deliberates.
A report will be produced at the other end, but you cannot see that report at the outset. I do not wish to accuse the Minister of disingenuousness, but that is the word that springs to mind when he protests that we have not fleshed out how independence would be imported into the scheme. The Government have not fleshed out many of the details of the Bill; it is a skeleton Bill and we have had extensive debate on many aspects of it, but much needs to be fleshed out in regulation.
I have outlined one way in which the element of independent oversight could be imported; that is to say that the person charged with responsibility to deliver a full and fair investigation of the facts should come from outside the trust being investigated. That is not a complicated proposal. The noble Lord, Lord Hughes, helpfully drew our attention to a parallel from the police service. That is exactly right. It is not an unworkable system—
I am not so sure about that, my Lords. I differ from the noble Lord on that; a much greater degree of confidence is perceived by the public when such an arrangement is put in place.
The Minister listed a raft of practical difficulties in this matter and pointed out that I had not made clear how, for example, a conflict of views would be resolved, how the independent overseer could be supported and so on. Those are not complicated questions to resolve and are certainly not beyond the wit of all of us, with good will, to sort out between now and a further day when the Bill could return to this House, should I decide to divide it.
This is an issue of principle. As the noble Baroness, Lady Neuberger, indicated, the concern is not confined to this Chamber or even to Parliament; it extends much more widely than that. The need for an element of independence in the scheme, in whatever form, is an issue of principle. Because I want the scheme to work well, we owe it to ourselves to ask the Government and the other place to have one further look at this issue.
Motion, as amended, agreed to.
5: Page 4, line 17, leave out paragraph (c)
moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 5, leave out “agree” and insert “disagree”.
The noble Earl said: My Lords, I spoke to Amendment No. 5A together with AmendmentNo. 4A and made clear that it was grouped. I beg to move.
Moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 5, leave out “agree” and insert “disagree”.—(Earl Howe.)
On Question, amendment agreed to.
Motion, as amended, agreed to.
6: 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.”
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 7.
Moved accordingly, and, on Question, Motion agreed to.
[Amendments Nos. 7A and 7B not moved.]
8: Page 5, line 1, leave out “in connection with proceedings under the scheme”
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 8.
I shall deal, first, with Commons Amendments Nos. 8 and 9. During debate in another place, the point was rightly made by representatives of the Benches opposite in relation to Clause 8(1)(a) that it is vital for a legal adviser to know to whom he is providing advice. It was suggested that clarification was required to make it clear whether the legal advice was to be provided to the person seeking redress or to the scheme. These amendments make it clear that legal advice without charge may be provided to individuals seeking redress under the scheme.
I turn to Commons Amendment No. 10. Clause 8(1)(b) enables the redress scheme to provide for the services of medical experts. In the statement of policy, published in November 2005, we made it clear that, where evidence from an independent medical expert is necessary, the scheme authority will seek to ascertain the wishes of the patient to reach agreement on an acceptable person. The amendment makes it clear that, where the services of medical experts are provided under the scheme, the medical expert will be an agreed independent expert. The services of that expert will be provided without charge to the individual.
Although the amendment makes specific reference to medical experts,
“instructed jointly by the scheme authority and the individual seeking redress under the scheme”,
I reassure the House that we do not consider it reasonable to expect a lay person to instruct a medical expert on a complex issue. It is our firm intention that the individual seeking redress will have access to appropriate legal advice without charge to enable the individual to be fully informed and involved in the joint instruction of the expert. We have existing powers to enable that in Clause 8(1)(a).
Amendments Nos. 8A, 8B and 9A would completely remove the power for the scheme to provide free legal advice to people using the scheme prior to an offer of redress having been made. By rigidly preventing free legal advice being provided to patients seeking redress under the scheme, the scheme will not give patients the assistance that they may require.
The argument for these amendments, put forward in the other place, is that legal advice is not necessary during the fact-finding process. Investigation merely ascertains what happened. I do not agree. For example, there will be circumstances in which it will be appropriate for there to be instruction of medical experts to help to ascertain the facts of a case. As I have said, we do not consider it reasonable to expect lay persons always to instruct medical experts without legal 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.
However, not only are patients to be prevented from having legal advice to assist with the instruction of medical experts, but Amendment No. 10A would remove the provision inserted in the other place that guaranteed that any medical expert would be jointly instructed.
In Grand Committee, the noble Baroness, Lady Neuberger, seemed to suggest that, if patients as well as the NHS trust are to be able to start proceedings, which they are, they will need help to do so and to understand the proceedings. These amendments would prevent the scheme making provision, where appropriate, for the availability of legal support under the scheme to assist patients seeking redress.
For those reasons, I strongly urge the noble Earl not to pursue Amendments Nos. 8A, 8B, 9A and 10A but to agree to Commons Amendments Nos. 8, 9and 10.
Moved, That the House do agree with the Commons in their Amendment No. 8.—(Lord Warner.)
8B: Page 5, line 1, leave out paragraph (a)
The noble Earl said: My Lords, I shall speak also to Amendments Nos. 9A and 10A. I should say at the outset that it is not my intention to press these amendments but I think that it is right to take a brief time to debate them. We need to hear from the Government in a little more detail why they have changed their minds about offering free legal advice throughout the redress process.
I do not have, and never have had, a problem about free legal advice being available under the scheme at the point at which the NHS local authority comes forward with an offer. It is at that stage that the aggrieved person wishes to assess the adequacy of the offer and to weigh up the alternatives open to him if he decides not to accept it. To make those decisions, he needs legal advice. Perhaps more importantly, he needs legal advice on the implications of his accepting an offer from the NHSLA, because the acceptance of an offer brings to an end his legal right to pursue civil litigation on that matter. Clause 8(2) covers that situation, and it is important. I have no argument with it.
But here we find that in another place the Government have agreed to the insertion of Clause 8(1), which would apparently allow for a complainant to have access to free legal advice from the very outset of the redress process. That is a significant changeof mind. In Grand Committee, the Minister acknowledged that at the beginning of the process support to the patient would be provided by PALS and ICAS. I had reservations about PALS and ICAS and suggested that we might think about someone more akin to a Mackenzie friend to support the patient, but the one thing that neither the Minister nor I envisaged was the intervention of lawyers.
There are two reasons why I am resistant to the presence of lawyers at this stage of the process. The first is cost. One reason why we all agree that we need to find an alternative to civil litigation is that it is costly to all concerned. Although the Government have not said it in so many words, they surely cannot be oblivious to the size of the legal aid bill associated with civil claims against the health service—it is enormous—yet here we seem to be reimporting one of the features of the current unsatisfactory system into the new one.
The second reason that I balk at the amendment is that I cannot see why lawyers are necessary at this point of the process. The whole point of the redress scheme is that it affords a quicker, less cumbersome way for a patient to receive an explanation; where appropriate, an apology for treatment that has gone wrong; and, in appropriate cases, an offer of financial compensation. By making an application under the scheme, you lose none of your legal rights; you are simply making an application. The added value of a lawyer at this stage of the process is therefore unclear to me. I have heard the argument that, if you make an application under the scheme and have it rejected on the grounds that it is ineligible, you might need a lawyer to contest that decision. Again, I do not follow that argument. If an application is rejected on grounds of ineligibility, the reasons for the decision will presumably be given, and that is certainly a situation in which ICAS could be brought in to offer the patient appropriate guidance. But a rejection need not be the end of the road: civil litigation may still be open as an alternative. Once you import lawyers into this early stage, you introduce elements appropriate to an adversarial, judicial process. The redress schemeis not a judicial process, nor is it adversarial; it is essentially an offer-making process which is consensual.
I have noticed in my time working on this Bill that there are only two groups of people who believe we need more lawyers for the NHS redress scheme—the lawyers themselves, and those with an interest in promoting the services of lawyers. It is unfortunate that the Government have allowed themselves to be beguiled into modifying the Bill in this way. I put it no stronger than that.
In Amendment No. 10 we also see that the Government have changed their minds on the question of having jointly instructed medical experts. They were always in the Bill, but here we have a new subsection about joint instruction. Again, that concept introduces a dimension that we see operating in the courts. The redress scheme is not the same as a court. It is an executive process. A joint instruction implies that an adversarial tussle is going on. As I have said, I do not view the redress scheme in that way, and I did not think that the Government did either. What will be the status of the medical experts’ evidence? Will it be privileged, or will it be available to the patient at the end of the process? That is an important point.
In our earlier debates the Minister was quite clear that some elements of the NHSLA’s deliberations would have to remain legally privileged. I am not sure whether the Minister has changed his position, but should be interested to know whether that is so. If he has not changed his position, I understand exactly why that should be. If the patient is party to a joint instruction it implies that he or she should be entitled to know what evidence is given as a consequence.
I should be grateful if the Minister could elucidate a little further how he sees this provision working and exactly how it fits with the concept of the scheme as the Government envisage. I beg to move.
Moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 8, leave out “agree” and insert “disagree and do propose Amendment No. 8B in lieu”.—(Earl Howe.)
My Lords, let me reassure the noble Earl that it is certainly not our intention to have free legal advice available at every stage of the proceedings. However, we recognise that in some cases legal advice may be necessary at an earlier stage, for example, when the services of jointly instructed medical experts are required. In these cases, it may be inappropriate not to offer appropriate legal advice, but without that provision the scheme is unlikely to gain the confidence of patients.
I notice that the Liberal Democrats are not speaking on this Motion. I was pleased that Dr John Pugh said in the Commons Standing Committee that the Minister had confirmed that medical experts, where instructed, would be jointly instructed. It is imperative for any meaningful joint instruction of a medial expert that the patient has specialist legal representation. It would not be reasonable to expect a lay person to instruct a medical expert on such complex issues.
The noble Baroness, Lady Neuberger, will be pleased to see this new accord between the Government and some of her colleagues on this aspect. We agree with that entirely. We have certainly not changed our minds in the area of reports. They will be made available, and there is no question of using the excuse of privilege in denying access to the views of the expert medical witness. I tried to make that clear earlier, but I may not have done so as well as I might. A claim for privilege to prevent disclosure to another party can be made if a document is a communication between a solicitor and a third party, which arises after litigation is contemplated and the purpose of which is to obtain legal advice. Where documents have a dual purpose the test is whether the dominant purpose of the document was for legal advice. Privilege cannot be claimed for an accident or investigation report unless the sole or dominant purpose for which it was prepared was for submission to a legal adviser for advice.
In this case, the expert advice will be a shared appointment and what they say will be made available to both parties, so I do not think there is any question of doctors claiming privilege on that issue. I hope that that reassures the noble Earl.
My Lords, that was a helpful reply, and I am grateful to the Minister. My reservations about the interpolation of lawyers still stands, but I note what he said and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Motion agreed to.
9: Page 5, line 2, at end insert “to individuals seeking redress under the scheme”
10: 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.”
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 9 and 10.
Moved accordingly, and, on Question, Motion agreed to.
11: Clause 10, page 5, line 29, at beginning insert “Subject to subsection (2A),”
12: Page 6, line 9, leave out “a specified person” and insert “an individual of a specified description”
13: Page 6, line 11, leave out "and" and insert
“(ha) require a member of the scheme to charge an individual of a specified description with responsibility for”
14: Page 6, line 14, leave out paragraph (i)
15: Page 6, line 15, 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.”
moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 16, leave out “agree” and insert “disagree”
The noble Earl said: My Lords, I spoke to the amendment earlier. I beg to move.
Moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 16, leave out “agree” and insert “disagree”.—(Earl Howe.)
On Question, amendment agreed to.
17: Insert the following new clause—
“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.”
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 17.
This new clause imposes a general duty to promote resolution under the scheme. A duty will now 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.
The redress scheme to be established under the powers in the Bill aims to open up access to justice for the less articulate, less wealthy and those who traditionally would have been fed up and would have abandoned the process before a case is completed. Providers of NHS services will now be expected to take forward cases when they believe there may be a case of negligence.
An active approach of redress will be required under the scheme. 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 redress scheme, but there will be others who continue to be defensive and drag their heels. We need to do all we can to ensure that this will not happen.
The new clause signals that the redress scheme is not simply a parallel process to run alongside the courts. It 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 would be wrong to require cases to be settled under the scheme willy-nilly, but the desirability of resolution is a factor that must be taken into account along with all other relevant considerations. For those reasons, I commend the Motion to the House.
Moved, That the House do agree with the Commons in their Amendment No. 17.—(Lord Warner.)
My Lords, with the leave of the House, I wish to ask a question. Despite the Minister’s explanation, I am a little puzzled as to why the wording has been chosen. Despite the reasons adduced by the Minister, there is a problem of whether the new clause has genuine legal force. How could one ever verify one way or the other whether the scheme authority or scheme members were abiding by it, or failing to do so? In practical terms, the provision is unenforceable. If so, it is bad law and should not be in the Bill.
The whole point of the redress scheme is to provide an alternative to civil proceedings. The NHSLA is tasked at present with keeping disputes and complaints out of the courts. It does that successfully. No doubt it will continue to do so when the scheme is up and running. I cannot see why we need to state in the Bill that it must have regard to the desirability of redress being provided without recourse to civil proceedings. I am not sure what value that adds.
Perhaps the Minister could say a little more on those issues.
My Lords, as I understand it this new clause was tabled on Report in the Commons. Views were expressed outside the Commons—for example by Action against Medical Accidents—that some reinforcing mechanism was needed in the Bill. The new clause seeks to reinforce the message that scheme members and the scheme authority should actively seek resolution under the scheme.
I can understand where the noble Earl, Lord Howe, is coming from. But the clause is not meaningless; it makes it very clear that there may be a legal remedy if the duty to promote resolution is not properly exercised. We felt that it was important to put this matter beyond peradventure, given some of the points made. This provision was generally approved in the other place as a way to give a clear signal that the redress scheme is intended as the primary means by which disputes are resolved, so far as is reasonably practicable. That is the reason we went ahead with this particular provision.
On Question, Motion agreed to.
18: Clause 12, page 7, line 1, leave out Clause 12
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 19.
This is a privilege amendment. It removes Clause 19(6), which is commonly known as the “privilege amendment” and which states that nothing in the Bill will impose any new or increased charges on public funds. It is the privilege of another place to control charges on public funds. In order to acknowledge that financial privilege of another place, when a Lords Bill such as this, which includes charges on public funds, transfers to that other place, this House formally declares that the Bill will not result in any new or increased charges. The privilege amendment is then added to the Bill as it passes to another place. This amendment simply removes the privilege amendment.
Moved, That the House do agree with the Commons in their Amendment No. 19.—(Lord Warner.)
On Question, Motion agreed to.