NHS Redress Bill [HL]

My Lords, in many ways we must all welcome the NHS Redress Bill. I need to declare a few interests: I was formerly—a long time ago—chair of the Patients Association; I have been a member of the GMC and I have chaired an NHS trust, so I have dealt with some of those issues over a long period of time. Indeed, going back nearly 20 years, AvMA—Action against Medical Accidents, or the Association for Victims of Medical Accidents, as it was then called—had as its chief executive Arnold Simanowitz, who was even then proposing a similar scheme so that we could get away from the adversarial and litigious system that he saw growing in our country. More recently we have seen concern about the huge cost of litigation, although that is mostly down to lawyers’ costs, and some very large settlements, because the actual number of cases has begun to go down. Most of us would also have broadly welcomed the Chief Medical Officer Sir Liam Donaldson’s excellent consultation document, Making Amends, which came out some two years ago. No one thinks that the present system is satisfactory and all of us have concerns that it militates against a culture of openness and frankness between clinicians and patients and between staff more generally and patients. At present it leads to a less than frank approach; and given the understandable reluctance to admit mistakes it is all the more difficult to learn from them. If we add to that a growing risk aversion more generally in our society and a failure to accept that things will go wrong in human interactions and that modern medicine is complex and can be dangerous, we seem to have a recipe for a difficult atmosphere between patients and clinicians when things go wrong. Indeed, in my experience staff often prefer to hide mistakes because they are frightened of being blamed within their own organisations for mistakes that have taken place—as they will in normal human interactions. Add to that the natural if not wholly acceptable tendency of organisations to be loyal to themselves and staff within them to each other and one can see how it might be difficult for an ordinary patient or patient’s relative to obtain a proper explanation or apology when things go wrong—as they do. As an NHS trust chairman in the 1990s I certainly saw that at first hand: people seemed to find great difficulty in admitting mistakes, apologising and explaining what had happened. So all credit to the Government for trying to take on the issue and for realising that the present position is far from satisfactory. That having been said, however, like the noble Earl, Lord Howe, we on these Benches feel that the Bill begs more questions than it answers. The Minister will no doubt already have had presented to him by other means many of the issues that I and other noble Lords will raise with him today. He may indeed answer that all our concerns will be dealt with in the detail of regulations, but I have to say that we will not be satisfied with that, any more than the noble Earl, Lord Howe, is satisfied that we have not at least seen draft regulations to examine at this stage. We too think that there may be a large number of probing amendments in Committee. However, we are seriously concerned with three separate aspects of the Bill as well as wishing to raise other questions. Like the noble Earl, Lord Howe, we were surprised to see that we have before us a wholly talk-based system, given all the publicity there has been about the system and all the agonising there has been about a talk-based system in the past. The first of our three major concerns, as AvMA and others have rightly pointed out, is that it is essential that any investigation into an adverse incident is truly independent. That is because of the organisational point to which I referred earlier, where those within an organisation, however well intentioned, tend to back their colleagues unless the circumstances are extreme. That is backed up by this week’s news from the Healthcare Commission that around one third of NHS complaints are referred back to the organisations concerned. We are not good at dealing with that issue. It is also essential that the system has an independent element if the new system is to be one from which doctors, nurses and other health professionals can learn. Only by being held up to an independent view can people truly learn, where there is no question of bias. Yet the Bill does not say anything about that. AvMA suggests that the responsibility for investigating and deciding upon cases under the redress scheme should rest with an independent body rather than the NHS litigation authority, which is part of the NHS system and which will administer the scheme. That has some attraction, as has its suggestion that the Healthcare Commission would be an obvious candidate, given its role at the independent stage of NHS complaints. The Healthcare Commission also has a much more general monitoring role, so that it could ensure that lessons were properly learnt and absorbed from the incidents dealt with by the redress scheme. Even if the Government do not want to go that far, they should certainly be emulating in the Bill what has already happened in the current Welsh speedy resolution scheme and in the Resolve pilot scheme which took place a couple of years ago, a fast-track resolution scheme for smaller claims. In both schemes, the judgment as to whether compensation should be awarded was made by an independent medical expert, agreed by the NHS and the claimant together. Independence is the first main question. We would also like to know why AvMA and other members of the Clinical Disputes Forum were told that the redress scheme would be run like the Resolve and Welsh schemes, and why that now appears not to be the case. Secondly, there is the major question of the dropping of the duty of candour, which was such a key feature of Sir Liam Donaldson’s consultation paper. Yet at least half the thinking behind the desire to go for a redress scheme such as this was to encourage openness and candour, as the National Patient Safety Agency’s policy seems to suggest, as the GMC’s good medical practice guidelines insist, and it has also been warmly welcomed by the Healthcare Commission. Yet that duty of candour is not mentioned in the Bill, despite it being key to the National Patient Safety Agency’s thinking and despite the fact that this whole approach rests upon a desire to move away from an adversarial and less than frank approach to an open one of trust between clinician and patient where redress, when things have gone wrong, can be swift and simple. Thirdly—and this point has already been raised by the noble Earl, Lord Howe, and the Minister himself—the scheme appears to be limited to hospital care, despite signals from the Minister that it may eventually be extended. Yet it is clear that the vast bulk of care is provided by primary care. At present, if patients are damaged by negligence in primary care, they have to sue their GPs individually, as contractors to the NHS. That makes no sense, given the changing shape of primary care, the vast increase in care in the community, especially for chronic conditions, and it makes it difficult for both patients and GPs. Patients often know and like their GP, yet they may have been damaged by care received within the primary care system. Meanwhile, GPs are paying large premiums for indemnity cover. It is hardly satisfactory. There are many more questions, perhaps not of such great importance, that the Minister may be able to clarify in his response. First, what happens when it is not a case of individual negligence but system failure, arguably organisational negligence? Will the scheme cover that, and will the NHS be able to learn from it thereby? Secondly, are there any rights of appeal against a decision of the litigation authority, or does a dissatisfied claimant simply have to go to the courts, as now? If that is the case, will it not militate against openness in the system? Thirdly, who will monitor the scheme to see that it is carried out fairly—if the NHS is investigating itself—and that the NHS learns from these errors and that systems are put in place to help NHS organisations learn openly from things that go wrong? Fourthly, how will claimants be advised? Will they be able to get access to independent specialist representation and paid for beyond the solicitor who will be paid for at the time that an offer is made by the litigation authority? If not, how will this be seen as truly involving the patient as an equal, especially if the investigation is being carried out by the organisation which has been challenged and complained against? Few patients have the expertise to ask the right questions at the right time. Nor would they necessarily understand how judgments are made, such as by the Bolam test where it is not the ““highest expert skill”” that is the test but the standard of the ““ordinary skilled man””. One has to be technically reasonably competent to get one’s head around that. Fifthly, although the Government have not gone for a no-fault compensation scheme—a system favoured by these Benches—the Scottish experience with the Macfarlane trust for HIV-infected people from blood products is one where people receiving payments waived their right to litigate and the Government were excluded from liability. Did the Government consider the advantages in terms of openness and less defensive practice—a contrast with the US-style practice about which the Chief Medical Officer is so worried of a no-fault system? And, if they did, and rejected it, how does the Minister think that this system will truly promote openness, when practitioners will still be concerned about being found negligent? How does this present Bill relate to the Swedish no-fault system, where successful claims are those that compensate for injuries unexpected by the patient and unforeseeable or impossible for physicians to avoid—in other words, the practitioner is not found to be at fault, but injuries worthy of compensation are compensated? There appears to be no similar provision in this Bill. Such a provision would give clinicians some comfort—they would not be seen to be negligent. Lastly, this Bill seeks to deal with relatively small claims and the Secretary of State can cap the amounts, yet the real cost of settlements comes from severely damaged babies at birth and from legal costs. To what extent will capped settlements mean that prospective claimants will choose not to use the scheme, but instead go to claims farmers operating on contingency fees? Even if legal aid will not be freely available—clearly it will not be—will a low cap not make it likely that lawyers will operate on a contingency fee basis and claimants go through the courts as at present so that the hoped-for reduction in litigation will not necessarily take place, health professionals’ fears of litigation will not be reduced and the whole aim of openness and learning from mistakes will simply not be realised because the cap may be set too low? In conclusion, in principle we are delighted to see this legislation. But at present there are too many unanswered questions—I have given the Minister a few—and too many concerns of principle for people on these Benches to give it their unqualified support. Like the noble Earl, Lord Howe, we also think that this is a wasted opportunity.