NHS Redress Bill [HL]

My Lords, I welcome this long overdue NHS Redress Bill, whose advantages seem to me to be obvious. It reduces legal costs. In 2004–05, the cost of clinical negligence was about £503 million, of which £150 million—just under a third—went on legal costs. The smaller the claim, the larger was the percentage of legal costs. The Bill should also avoid complicated complaints procedures, which on average take about a year and a half, and sometimes go on as long as 10 years. It should also provide access to medical justice. Last year, I am told, around 800,000 adverse events relating to the NHS occurred. Only a tiny percentage—about 6,000 complaints—involved litigation and compensation payments. This seems to suggest that a large number of people who have suffered from medical negligence are deterred from complaining for all kinds of reasons, and the proposed scheme should be able to remove some of these. I like the idea that the scheme is proactive, and the onus is no longer on the patient. This should be of particular help to the poor and ethnic minorities, who are not familiar with the system of complaint and litigation that may be available to them and therefore do not take advantage of it. While I endorse the Bill for these and other reasons, I have a few questions. Some are straightforward and simple, others a little more complex. First, I am not clear whether the figure of £20,000 includes remedial treatment. If it does, compensation is likely to be very little and the limit needs to be raised. Secondly, how do we ensure that the remedial treatment is adequate and suitably monitored? Thirdly, this Bill would cover only a small percentage of claims. I am told that last year only 5 per cent of the claims involved amounts of around £20,000. It would therefore be useful to monitor the scheme to see how it works, and, if it works well, to find ways of extending it to claims involving larger amounts of money. I have difficulty with the NHS Litigation Authority. The noble Earl, Lord Howe, and the noble Baroness, Lady Neuberger, raised this question, and I want to repeat the point they made. I am not entirely sure that the authority can be both prosecutor and judge. It is bound to be seen as in some sense loaded in favour of the medical staff against whom the complaint is made. We must find some way of ensuring that the two functions are separated. I am also not entirely sure how the authority is to be composed. Will it include a larger percentage of lay members than it has so far? What about ethnic minorities? My next point concerns the mechanism to ensure that information on mistakes made in one hospital or NHS trust is circulated widely so that it does not remain confined merely to the hospital concerned. Perhaps we should have a national register of mistakes that have been made. It is also important to have a record of good practices, and to see that they are duly disseminated throughout the country, and not limited to the organisation concerned. This final point interests me enormously. The Bill is said, rightly, to have been designed not merely to deal with small complaints, but also to change the NHS culture, and to alter profoundly patients’ experience of the NHS. Although the Bill makes some progress in that direction, I do not think it goes as far as it could and should. A MORI poll conducted on behalf of the Department of Health revealed statistics that are a great compliment to our country, and to the culture that prevails. Only 11 per cent of complainants were interested in financial compensation. In the case of severe damage, the percentage was no higher than 15 per cent. The figures for the United States are between 75 per cent and 85 per cent. Some 34 per cent of complainants were happy simply with an apology; 23 per cent wanted an inquiry, to avoid a reputation of negligence for themselves or others; and 16 per cent wanted support in coping with the consequences of negligence. That would seem to suggest that nearly 73 per cent of our people have no interest in financial compensation. That raises some interesting questions. How do we ensure that that culture is sustained and does not become a culture of complaint or compensation? It is not just a question of identifying pockets of negligence and dealing with them; we need a profound transformation of the way in which the NHS functions. We need more openness. Often, consultants take decisions that are not explained to the patients. Like many Members of your Lordships’ House, I could cite cases in which a consultant has diagnosed a patient in a particular way and the patient has screamed, ““Look, your diagnosis doesn’t make sense. It does not fit in with my history”” and still the diagnosis is registered on the patient’s file. We also need greater humility on the part of doctors. It is important to bear in mind that some cases of negligence can be attributed directly to the medical staff, while others are the complex product of the system in which decisions are taken. It is important, therefore, not merely to think in terms of identifying pockets of negligence among particular members of staff but to consider the system as a whole and ensure that there are clear rules about how medical decisions are taken. There have been cases—I could have cited several—in which, for example, surgery was ordered by a junior doctor, even though the patient was not satisfied that the case warranted surgery, the patient has asked to see a senior registrar, and the registrar has reversed the decision of the junior doctor. If the patient had not had the confidence in himself and the courage to ask for a second opinion, he would have been subjected to the surgery and would either have wasted a large number of days suffering the consequences of it or would have made a request for compensation. The example suggests that, often, in some of the hospitals with which I am familiar, the rules on who is entitled to order surgery and whether—especially in the case of patients who are admitted at the end of the day—surgery can be ordered by a junior doctor or must be approved by a senior consultant are not clear. For those and other reasons, although I welcome the Bill wholeheartedly, I suggest that there are some loose ends that need to be tightened up. I hope that, in Committee, the Minister will explain why those changes should not be made or will be gracious enough to incorporate them into the Bill.