NHS Redress Bill [HL]

My Lords, the Bill is an important step forward in ensuring that there is reasonable compensation for patients when things go wrong. That is the point upon which I want to focus—when things go wrong. The Minister, in his helpful opening remarks, spoke of the framework powers for Wales. I hope that consideration will be given in negotiations on the way in which the Bill will work in practice in England towards negotiating and discussing with Wales as well. There are patients who cross the border. Cross-boundary flows are the one area where patients may get caught, because clinical conditions are very complex. It may be difficult to know to which side of the England/Wales border the error might be ascribed and blame apportioned. Access to the scheme depends on a tort that would be otherwise actionable. How do we know when things go wrong, however? Currently, in courts, the Bolam test is applied, to ask whether the treatment was in acceptance and accordance with current medical practice. The answer this question, there is a peer review process—from someone with the scientific knowledge and clinical expertise to give truly informed comment—and a judgment made. We are all aware of some notable failings of the expert witness system. They have been principally in relation to criminal conviction, however. It is a real problem for any system of review to know just what should, or should not, have been done. Medicine is now so specialised that without reference to expert opinion consistency of outcome will not be achieved. Indeed, the very foundation on which a judgment is made will be flawed. It will not be possible to have expertise in all the details of all the conditions. Some of them will be absolutely crucial to the case in hand, details which will prove or disprove negligent care. Without sound information, my concern is that inappropriate and inconsistent payments will be made. While the intention behind the Bill is excellent, it may stack up some problems if we abandon the Bolam test. The Bill anticipates that the Bolam test will remain. I hope the Minister will be able to reassure me on that. It would be better if the Bill explicitly stated that the redress scheme will apply only where it can be shown that the care is inadequate as judged by accepted medical practice. We are not talking about the lowest common denominator, but about a standard which is accepted as good. A different robust standard to the Bolam principle has not been found. Unless we use the Bolam principle, what will happen? There is, of course, a risk that people will claim that things should have been done based on anecdote, Internet website findings or whatever, but that those interventions which they claim should have happened would not be recognised as evidence-based clinical practice. The difficulty is that, when we look at evidence-based practice, most of the time we are looking not only at the situation of one disease and one intervention but also at complex human beings with multiple pathology and different psychological states, all of which can affect outcome. How all those interact will determine ultimately whether care was reasonable and up to standard or whether it was substandard. Under the NHS redress scheme, there will be inherent criticism of the NHS professionals involved in the award of a payment. If a payment is made because the care is unsatisfactory, the system must have failed—it may have been the team, a managerial system or a central policy rather than an individual. The claimant lobby may be trying to find another standard. It is in their interest to get the maximum compensation out of the system, and it is right that they should keep up the pressure for it. But if the compensation threshold is lower, it will be set by a person’s unrealistic expectations to fly in the face of what the NHS can offer rather than realistic expectations that take into account co-morbidity and other incidental factors. Co-morbidity is the most important factor in determining poor outcomes, yet sadly it is rarely recognised by the claimant. Clinicians cannot be held responsible for the presence of co-morbidity before patients presented themselves but they must take it into account. They cannot always predict its detrimental effect. The difficulty in clinical practice is that doing nothing can have adverse consequences and may be more dangerous than attempting to do something, so each clinical decision is taken on a balance of risks. When those risks are finely balanced, the inexact science of human disease behaviour can tip the scales so easily the wrong way. Why do some people resist infection yet others succumb? The NHS cannot be held responsible for the inherent genetic factors in the spectrum of the ““normal population””. Such variation in the ““normal”” is not clinical negligence. What happens if the service is unusually stretched for some reason? In a major incident, for example, the staff and the system have to deal with that incident so other patients may have their care delivered differently. If the incident goes on for some time, some patients may get less effective care than they otherwise would—for example, a delay in diagnosis—but that must be taken into consideration in a fair scheme of redress. What of the difficult presentation of a serious situation? Let us take subarachnoid haemorrhage as an example. A patient has a warning bleed and attends accident and emergency with a terrible headache. A full history is taken, the patient is properly examined and is told that she has migraine because the story fits that diagnosis. She appears to recover and goes home but then has a catastrophic bleed. Not every patient who presents with a headache can have a head scan. If the patient had not recovered in the interim or the symptoms had not fitted a migraine picture, further investigation would have been indicated and warranted. Using the ““stands to reason”” argument, it would be suggested that the diagnosis should have been earlier and that there may not have been sufficient information to warrant such a rapid diagnosis of migraine. But when a typical situation is presented, you can see how that diagnosis was assumed and made. The redress scheme may award compensation, but without a robust determination of the facts the scheme risks handing out money as sympathy rather than true redress. It is usually not the NHS’s fault that someone is ill or that someone’s disease does not respond to treatment, and the nature of disease and its course is not an exact science—as a clinician, I dearly wish it were. But it is appropriate that, using the Bolam test, every patient should have the best possible treatment within the resources available. The NHS system cannot investigate every possibility of every case, but I hope the system will operate reasonably against an accepted standard, and I urge the Minister to use the Bolam principle.