NHS Redress Bill [HL]

My Lords, what is proposed in this welcome enabling Bill has the potential to do much more than at first appears. I support this Bill: it will help to improve the culture of responsiveness to complaints in the NHS. I declare a personal interest as chair of a strategic health authority in London which last year spent over £26 million on compensation claims and legal costs through the NHS Litigation Authority schemes for trusts on our patch. The NHS Litigation Authority has done a terrific job in my view over the past years to bring down the number of new claims. After all, that is what we hoped it would do. However, the amount awarded by the courts for the more serious cases has gone up and so have legal costs—quite dramatically in some cases and possibly unjustifiably. As Ron Bradshaw, the chair of the authority has remarked, the authority and insurers, when paying legal fees, are like those paying a taxi fare for a driver who is choosing the route, at a rate that he would like to be paid, for a passenger—the claimant—who is totally disinterested in the fare because they will not be paying. Compensation culture has become legal vulture culture in many instances. Thirty-eight per cent of claims are abandoned, 43 per cent are settled out of court, usually in favour of the patient, just less than 2 per cent are settled in court in favour of the patient and an even tinier percentage, 0.5 per cent, are settled in court in favour of the NHS—the last two instances at quite phenomenal cost. Even going as speedily as they can, the whole process takes on average about one year and four months. This Bill is designed to address that multitude of smaller claims that at present not only often take just as long for the patient to get settled but are at the heart of a disastrously defensive NHS culture of avoiding blame at all costs. I do not know whether noble Lords have ever been in receipt of an NHS response to a complaint letter, but I have seen dozens. I usually see them five or six months down the line when it is too late to say, ““Oh dear””. They make me cringe with embarrassment. They are couched in something like:"““We are sorry you felt the need to complain about your perception that””," followed by a list of what they think is wrong. They are awful. There is rarely a straight apology that something has gone wrong and never an honest, open explanation. Given that, importantly, there is no opportunity for the clinical service to learn from mistakes to prevent the thing happening again. An escalation of patient and family resentment follows; positions become entrenched; and while legal action is being pursued there is every likelihood that the patient’s physical and psychological recovery from the mistake will be delayed. We see that time and again. People could get back to work but their return to work is delayed because they are waiting for some compensation claim to be settled. The National Patient Safety Agency has put in a first-rate confidential incident reporting system to encourage clinicians to be honest about accidents, mistakes and near misses. It aims to end the blame culture, but unless we change the redress culture, too, its efforts will not yield fruit. If I have a concern, it is about the duty of co-operation between the NHS Litigation Authority, the NPSA and the Healthcare Commission outlined in Clause 13. At present the NPSA operates with the full confidence of the clinical professions and the NHS management because they know that they can turn to it in absolute confidence. I should like reassurance that there will be no obligatory information sharing, even of anonymised data, if in the NPSA’s judgment that would be detrimental to its role in allowing clinicians to speak in confidence. The scheme is attractive because it provides a more proactive approach to clinical negligence with the onus no longer on the patient to initiate a claim but a duty on the service to initiate an intervention. All scheme members—trusts—will be required to review adverse incidents themselves, where appropriate. I want reassurance on how the schemes will be triggered. I am still rather puzzled as to how it will work in practice. If the patient does not initiate a request, who does? If the patient cannot, who can? If the clinical service initiates it, there is scope for major under-reporting. I need to know more about the practicalities of the scheme. I am disappointed, as I had hoped that the Bill would ensure speedy assistance to children with severe neurological birth injuries so that parents could receive a support package as well as financial help as quickly as possible. That would be a major advance and simplification of the legal wrangles that have to be negotiated, and would give practical help at a time of enormous distress. I wonder what happened to that—so many of us were hoping that it would be alongside the low compensation qualifying amount scheme. Overall the aim of the scheme is to ensure that NHS money goes directly to benefit patients and to provide appropriate, speedy redress, with less spent on legal costs. Of the £26 million spent in my area, two-thirds was paid out, properly, in damages to patients, and about one-third—nearly £9 million—was spent on legal fees. That would fund an awful lot of hip replacements or cancer treatments. Everyone to whom I have spoken in the NHS supports the Bill. Although I am sure that there are many ways in which it could be improved to ensure that patients feel that it is a fair and ready way for them to get the compensation they need, I wish it a speedy passage and hope that it will be very much supported by Members of this House.