NHS Redress Bill [HL]

My Lords, I must apologise even more than usual for the sound of my voice this evening. It appears to have broken for the second time in my life. At least, that has the merit that I will probably not be able to go on for too long. I assure my noble friend the Minister that I am not after his sympathy; I only want him to listen to me. I am very supportive of the Bill. The motive behind it—trying to provide accessible and appropriate redress for patients in a timely and efficient way, avoiding the necessity to resort to lengthy and expensive litigation—is welcome and should benefit patients and healthcare professionals alike. I strongly support it. I should declare my interest as president of the Medical Protection Society, a not-for-profit discretionary mutual organisation that provides our members, who represent over half the medical and dental professions in the UK, with indemnity, legal advice and assistance for matters arising from their practice. We run education and risk management programmes that aim to improve patient safety and reduce the number of reasons for complaint. It is clear, then, why the MPS is in favour of speedy and fair resolution of the types of problem outlined in the Bill. The Bill is unfortunately lacking in detail about how the scheme will be operated, leaving much of that to secondary legislation, as many noble Lords have said. That makes it very difficult to get a grip on the all important detail. That is all the more reason why it would be helpful if the Minister could give us some reassurance now on one or two important points. First, it is clear that the Bill is not a no-fault compensation Bill. Like other noble Lords—the noble Baroness, Lady Neuberger, mentioned the issue—I like the idea of that type of compensation for a patient who has suffered some adverse effect from treatment, where no one is at fault, and no blame is to be attached. The Bill is for patients who have suffered because someone has been at fault. That means that someone else has to make a judgment about whether a complaint by a patient that they have been treated wrongly is justified. Was the treatment or management wrong or below acceptable standards? Should he receive compensation and an apology? I always taught my medical students and junior staff that expressing regret when a patient had suffered—expressing concern and empathy—whether or not one was at fault should be part of the culture. Not admitting liability where one is not liable is, of course, important; but one can surely express regret that a patient has suffered. Is it correct that the NHSLA will be responsible for the making of that judgment? Will it set up a system for that assessment? That is a concern. Other noble Lords have talked about the problem of the NHS appearing to make the judgment. I have concerns that the litigation authority may make speedy judgments because that is cheaper than doing it in any other way. It is vital that we balance a quick resolution, which is highly desirable, with a fair and thorough investigation of the complaint. At present when a medical professional has to defend himself in court against a complaint he leans heavily on the Bolam principle which compares what the doctor in question did with what would be regarded as normal medical practice. Did what the doctor did fit within the range of acceptable practice as judged by a respected body of experts in that field? If the practice was normal then it cannot be held that there was an error and fault cannot be claimed, even though a patient may have suffered; and that is the problem. That is why I like the idea of no-fault compensation. However, we are not talking about that today. The point about this is that when an assessment about a complaint is being made, if it is to be fair it is essential that expert advice about the specific area of medical practice is available to the judging panel. The Bolam principle should be applied; hence the need for the input of an informed body of professional opinion. The Bill provides no detail on how judgments will be reached on complaints, who will make the assessments and to what advice they will have access. Can my noble friend give us any clues on that and any reassurance on the thoroughness with which complaints will be assessed? I hope that he will not say that this will have to wait and all will be revealed in due course. However, if he does, perhaps he will at least tell us that there will be an obligation on the Secretary of State to consult all stakeholders on the future regulations and on such important matters as the composition of adjudication panels, the role of medical experts, the nature of guidance on assessing and awarding compensation and the appeals process. I am also concerned that primary care is omitted from the Bill. Is there any chance that primary care may be included at some point? The Bill is welcome but, as always, a little more detail about how it may work would be extremely helpful.