NHS Redress Bill [HL]

My Lords, I welcome the introduction of the Bill. As one of the signatories of the NHS Plan back in 2000, as was the noble Baroness, Lady Neuberger, when the initiative was first trailed, I am pleased that we are debating the principles of the new scheme today. I shall focus for a moment on why the Bill represents an important step forward for patients, and I make a plea that when we get into the detail we do not lose sight of that. Yes, in recent years it has been widely recognised that the NHS does not respond well when things go wrong. It has been a fight for patient organisations to get to that place. In some cases when things have gone wrong, the NHS has literally added insult to injury. We have heard already that health professionals can close ranks and become defensive; but we know also that, depending on the severity of the wrong, most patients would consider an apology and the knowledge that their experience would not be replicated for others to be an appropriate response, and that only a minority of patients who experience the most serious mistakes or wrongs would like to go on to seek financial compensation. We know that when things go seriously wrong, patients have little alternative but to go through the legal system; and while most cases are settled out of court, pursuing those cases can be extremely time-consuming and a distressing experience for all. As we have heard, the NHS Litigation Authority reports that 60 to 70 per cent of claims do not proceed past initial contact with a solicitor or disclosure of medical records, and 95 per cent are settled out of court. Let us think about the people behind those numbers. I am particularly concerned that more should be done to eradicate the unnecessary suffering of patients, their families and the carers whom that statistic represents. We need to do much more to change the situation—and noble Lords should remember that some cases can take up to 10 years to settle. There is a very strong case to be made for a redress scheme that would provide a real alternative to litigation and which is fair and accessible. Very importantly, the scheme should promote a speedy resolution and improved patient experience when things go wrong. It is essential that such a scheme should create a new openness about mistakes and should contribute to a cultural change, away from defensiveness and secrecy—a cultural change that is vital if lessons are to be learned from mistakes, as we have already heard today. Most importantly, it is essential that the scheme is made as accessible and effective as possible for patients; otherwise, those who can will continue to litigate, with all the costs and distress associated with that. Key to that success is the principle of access for patients to free, independent, specialist medico-legal advice. The scheme proposes that that should be made available to all, and I think that is an extremely important principle; but I am concerned about the timing of the advice, and that access to independent advice might be too limited if it remained at the end of the process—at the ““take it or leave it”” stage. I am particularly concerned that while any offer may be made without prejudice for the scheme member trust, participation in the scheme for patients who may at a later stage go on to require legal aid, should they decide to decline an offer, could prejudice their legal aid, because their refusal of an offer might be viewed as unreasonable by the Legal Services Commission. Therefore, that particular group of patients will need to have their interests protected by accessing legal advice before entering into the scheme. I do not believe that that is intended as the scheme stands. That brings me on to the question of who initiates the scheme. I, too, believe that the tenor of the scheme is proactive, and that is a very important principle. I am pleased to see that trusts as well as patients would be expected to initiate the scheme when they see a wrong done, but that must be with patient consent because it is only patients who can assess whether participation in the redress scheme is in their interests. I am very pleased that remedial care will represent an integral part of the scheme. All too often the current adversarial system conspires against the establishment of appropriate care packages. When accidents happen, lines of communication between healthcare professionals and patients can break down and it can lead to needs going unmet. As has already been said, the Bill does not contain much detail about the operation of the scheme, and much will be defined in secondary legislation. Therefore, I am particularly keen that we should explore with the Minister more of the thinking behind the scheme to obtain an indication of what we might expect to see in regulations. For example, I am interested to know more about the £20,000 ceiling. Will that act as a deterrent to the success of the scheme? I do not know. What will be the process of review in three years’ time? What will be the success criteria? How will the assessment of the appropriateness of the expansion of the scheme into primary care be made, especially as we are now seeing government policy move ever faster towards the provision of hospital services out of the hospital setting? I am interested to hear more about whether there will be convoluted or complex definitions of a hospital service, regardless of its location. I am pleased that the scheme aims to be speedy and to place time limits on the various stages, but I am concerned that in the interests of speed we should not place a restrictive time limitation on a patient’s right to apply to the scheme. What is envisaged? There is a strong desire for the redress scheme to be handled locally and to dovetail with the new complaints procedure, which is vital. But only this week, as we have already heard, there have been reports from the Healthcare Commission that trusts are not dealing with complaints as well as they could be. There may be some real issues about how practical it will be for trusts to manage the scheme effectively at a local level. We have heard that trusts will be seen by many to be acting as judge and jury for their own mistakes, so we need to be confident that the new redress scheme can operate in a fair way for patients. There has been much consultation in preparing the scheme, and I understand that the legal profession and the healthcare professionals’ organisations are supportive—as are patients’ organisations. There are concerns and I am sure that we will be able to debate them further. For example, I was particularly interested to hear concerns from mental health charities about the Bolam test, where there is quite a wide spectrum of usual practice and there will be some interesting matters to discuss in relation to it. There are also real concerns about the independence of the scheme. I understand that the Minister will not have time today to respond to all my points, so I look forward to having his responses in due course. The aim of the new scheme is to increase access to justice and I fully support that. I very much hope that we will be able to make the most of the opportunity that the scheme represents. I hope that it will lend dignity where often there is none, and help to create a National Health Service that is open and learning, a service where there is rarely a need for patients to litigate, because the caring principles of our patient-centred NHS will prevail, even when things go wrong.