NHS Redress Bill [HL]

My Lords, I beg to move that this Bill be now read a second time. It is a Bill for and about patients, and about delivering a better response to patients who have been harmed by their NHS hospital care. It puts patients at the heart of the process. It is about supporting the NHS to learn from mistakes, and making the NHS a safer place to deliver patient care. In 2001, the then Secretary of State, Alan Milburn, asked the Chief Medical Officer, Sir Liam Donaldson, to look at reform of the clinical negligence system. This was because the current system was perceived to be complex, unfair and slow. It was seen as costly in legal fees, in diverting clinical staff from delivering care and in its negative effect on NHS staff morale and public confidence in the NHS. It leads to patient dissatisfaction with the lack of explanations, apologies or reassurances that action has been taken to prevent the same incident happening to another patient. Perhaps as worrying is the fact that the present arrangements encourage defensiveness and secrecy in the NHS that stand in the way of learning and improvement. In June 2003, Sir Liam published a series of recommendations for reform in his report Making Amends. The Bill gives effect to his recommendation that we should introduce an NHS redress scheme to provide investigations when things go wrong; remedial treatment, rehabilitation and care, where needed; explanations and apologies; and financial compensation in certain circumstances. We want to take a radical approach to responding to patients who are unhappy with the healthcare that they have received. The Bill sets out the framework for an NHS redress scheme. The scheme will provide a mechanism for settling claims in tort arising out of hospital treatment, brought by patients, their estate or their dependants. It will provide a mechanism for the swift resolution of low monetary value claims without the need to go to court, covering claims in respect of personal injury or loss arising out of a breach of a duty of care and in consequence of any act or omission of a healthcare professional. Only liabilities in current tort law will be covered by the scheme; the intention is not to create new rights but to improve access to justice for those with rights that exist under current law. The scheme is not an end in itself; rather, it is a means to an end. It supports a better response to those patients who have suffered clinical negligence under the care of the NHS. It delivers what patients tell us they want when something goes wrong with their care—an explanation, an apology and things being put right, including coverage of financial losses and financial compensation where appropriate. They want to know that the NHS will work to ensure that what has happened to them does not happen to others. It establishes mechanisms for there to be a response in a positive and open way to patients and their relatives when mistakes are made in the delivery of healthcare. The scheme is intended to facilitate the resolution of cases in a swift manner, ensuring that redress is provided to the patient as quickly as possible. The scheme will apply only to cases arising out of hospital care provided or commissioned as part of the health service in England, wherever that hospital care might be provided, regardless of the type of provider or contracting arrangements. The majority of cases of clinical negligence occur in secondary care; it is therefore appropriate for the scheme initially to be implemented in hospital care. I recognise that there are concerns about restricting the freedoms of NHS foundation trusts by requiring them to be members of the scheme, as we intend. However, we believe that patient interest is best served through a level playing field, with all providers participating in the scheme. Those principles have the support of the director of the Foundation Trust Network. We do not intend it to be possible for a patient to be compensated twice. Any case that is or already has been the subject of court action—successful or otherwise—will be excluded from the scheme. When a patient accepts an offer under the scheme, he or she will waive the right to bring civil proceedings for the liability to which the settlement relates. If legal action commences during the consideration of a case under the scheme, the case will be excluded from the scheme. We envisage that the scheme will be administered locally. To drive culture change, scheme members will need to take ownership both of how they respond when something goes wrong and of the solutions to any shortfalls. Learning from mistakes at a local level will be promoted by a new requirement for scheme members to appoint an appropriate member of staff—for example, a director—with responsibility for overseeing the scheme and learning from mistakes. It is intended that the NHS Litigation Authority will monitor the scheme to ensure consistency, support scheme members and provide advice and assistance where needed. We envisage that the NHSLA will determine liability and quantum for cases falling within the scheme and make payments under it. Scheme members will contribute to the costs of running the scheme through financial contributions that will be adjusted to reflect the quality of the risk management processes that each organisation has in place. The Bill sets out requirements for organisations to identify cases covered by the scheme while investigating or reviewing cases and to take appropriate action. We intend that all scheme members will be required to trigger the scheme and provide investigations and explanations. In appropriate cases, apologies will be offered and, after consultation with the NHSLA, an offer of financial settlement. Patients or appropriate representatives will also be able to apply to the scheme directly. Financial compensation will be broadly equivalent to the level of compensation that would be provided in a successful claim before a court and the offer of redress may include, where appropriate, remedial care. The scheme will cover cases up to a maximum financial limit which will be set out in secondary legislation. It is currently intended that this limit be set initially at £20,000 . I note the concerns of the charity Action against Medical Accidents, that to guarantee patient empowerment there needs to be access to specialist independent advice. I should like to reassure your Lordships that to protect patients’ interests it is intended that the applicant will be given the opportunity to have the offer of redress independently evaluated by a solicitor without charge to them. It is also intended that where awards are made to vulnerable people such as children or those lacking capacity, they will be subject to approval by the appropriate court to ensure that accepting the offer is in the patient’s best interests. If an offer is rejected, the patient will retain the right to pursue the matter through the courts. The scheme is not intended to affect the legal rights of the patient. The NHS redress scheme is not a cost-saving measure. In the short-term it may increase costs, as access to justice is improved. Costs may be around £48 million in the first year. However, this is a small increase when set in the context of the huge investment the NHS has seen over the past five years with NHS funding rising to around £70 billion in 2004–05. The scheme ensures that money is spent on compensating patients with a genuine claim of clinical negligence rather than on the disproportionate legal costs that come with litigated cases. The scheme’s costs will be offset by a saving of around £7.6 million on claimant lawyer costs in the first year alone. Where patients are unhappy with the administration of the scheme, the Bill provides for handling complaints about maladministration of the scheme. The Bill broadens the remit of the Health Service Commissioner for England to allow her to investigate complaints relating to maladministration of the scheme and to report on her findings. Much of the technical detail of the scheme and how it will be run will be set out in secondary legislation. A delegated powers memorandum and further note providing additional detail on the rationale behind the structure of the powers has been submitted to the Delegated Powers and Regulatory Reform Committee. A statement of policy will also be published before Committee stage which will set out the detail of how the scheme will work in practice. It is intended that there will be a single scheme set out in a document that will be scheduled to regulations. The regulations and detail of the scheme will be subject to full parliamentary scrutiny. Specifically, the regulations establishing the scheme will be subject to affirmative resolution procedure. Prior to this, the regulations will be published in draft and a full consultation will be carried out with stakeholders. Scotland and Northern Ireland do not currently intend to adopt the NHS redress scheme. The Bill includes a framework power allowing the National Assembly for Wales to make regulations establishing arrangements as to how redress will be provided in Wales. Extensive consultation has taken place with stakeholders to develop the policy behind the NHS redress scheme. Its principles have received broad support from a wide range of stakeholders, including representatives from the medical and legal professions, NHS organisations and patient groups. Many organisations acknowledge the need for change and support these reforms as a way to deliver a better response to patients. The British Medical Association and Royal College of Nursing have indicated their support for the broad principles behind the Bill. The Patients Association is,"““encouraged by the Chief Medical Officer’s commitment to reform of the present arrangements””," and the charity Scope has welcomed the scheme as,"““a clear indication of the determination of the Government to have a more open and fairer NHS””." The Law Society has expressed support for providing,"““a package of measures concentrating on access, openness and improving patient safety””." The NHSLA believes that,"““the scheme should enable [it] to deliver access to justice even faster and more economically in future””," and the NHS Confederation welcomes the Bill,"““if it can succeed in its aim to make the cumbersome compensation process more effective””." In conclusion, I believe that the NHS Redress Bill will deliver valuable support to patients who have been harmed by their NHS hospital care and provide a focus for better patient care in the future by delivering the mechanisms—and perhaps more important, by supporting the culture change—that is necessary to deliver a better health service. I commend the Bill to the House.