NHS Redress Bill [HL]

My Lords, I take to heart the comments made by the noble Lord, Lord Colwyn, about points already raised. Eight out of the nine speakers before me have asked similar questions. Perhaps I may add more to the list. We learn a lot about a Bill from its advent. The advent of this Bill has been both strange and telling. After First Reading it received a fair amount of sympathetic publicity—and then nothing. There was a deafening silence. Until late last week Members of the House were receiving a flood of detailed briefing, all of which has been supportive of the principle behind the Bill and all containing a range of questions from people with a degree of expertise in this field. That has set the tone of our debate. Our bizarre job over the next few weeks will be to encourage the Minister to demystify an awful lot of what is in the Bill. I am reminded of an occasion when, in discussion with one of the Minister’s predecessors on one of those annual Bills that takes our NHS system to bits and puts it back together again, I wondered aloud whether the day would come when this House would consider a Bill that stated: ““There is the Secretary of State and here is a list of regulatory powers””. To my horror, I think that that day has come. I am going to put a lot of questions to the Minister because I think it is right to do so. It will save Members of the House valuable time at later stages. Anyone who has tried to make sense of the Bill will have found two documents extremely helpful. The first is Making Amends, in which the Chief Medical Officer sets out the need for a scheme and the key elements necessary to make it effective. To the extent that the Bill before us reflects the recommendations made in Making Amends, it has our support. However, as a number of speakers have already pointed out, key recommendations in Making Amends are not included in this legislation. In our view, the principal omission is the duty of candour on health professionals. That is a deficiency and one that we will seek to address during the passage of a Bill which in principle we very much welcome and support. The other helpful document is the Full Regulatory Impact Assessment which sets out in detail the background to and rationale for the Bill, and the need for primary legislation. Two very telling statements are made in the assessment, which point out clearly the need for this legislation and its main failings. The first states:"““New primary powers will enable the delivery of the reforms listed above, and will enable the Scheme Authority to seek financial contributions from participating local bodies and enable these funds to be used to fund the Redress Scheme. Duties could not be imposed on FTs [foundation trusts] and independent providers other than by primary legislation””." That is a very revealing statement and, were it not for the need to legislate for the inclusion of foundation trusts, I wonder whether the whole matter would have been dealt with by regulation. However, it is a mark of the deficiency of the legislation before us that even informed commentators have had to ask at every stage whether this Bill does indeed include foundation trusts, because they are not mentioned in Clause 1(2) or (3) That statement also goes to an issue which so far no one has mentioned. The NHS Redress Bill is just one of a series of measures such as PALs, ICAS and NHS complaints systems designed to enable people to make complaints against the health service. Each of those elements has an intrinsic value, but together they do not add up to a coherent and consistent means by which citizens can hold the NHS fully to account. Now is not the time to rerun arguments about the abolition of the CHCs, but it is fair to say that the range of measures which the Government have put in their place does not offer an effective and efficient system of representation for individuals, nor do we have a robust system of monitoring and addressing failures of healthcare across geographical locations or in respect of distinct patient populations. The noble Baroness, Lady Morgan of Drefelin, said that the measures were ““convoluted”” and I am concerned that this may be just one more convolution. Moreover, many noble Lords have mentioned one glaring omission; that is, any provision in the Bill for the dissemination of information. Without that it is difficult to see how learning across the NHS can be enhanced. The opening statement of the Full Regulatory Impact Assessment talks of primary legislation in the following terms,"““new coherent powers to enable the scheme to be set out within a single framework of regulations as a real alternative to legislation, and one that will be more readily understood by patients and NHS staff alike””." That is not what we have at the moment. Specialists in the field do not understand it, so I do not see how lay people can. Yet the statement gives your Lordships a good target at which to aim. We have a number of reservations. Some have already been mentioned. The lack of independence of the scheme is a key one, which many of your Lordships have mentioned. The lack of specialist medico-legal advice during the course of an investigation was raised most eloquently by the noble Baroness, Lady Morgan of Drefelin, and by the noble Baroness, Lady Tonge. On these Benches we are concerned not only that patients should be fully enabled to understand the process that they are being taken through, but also that NHS staff can have faith in a system which will explain to people—in much better terms than any existing complaints system—what is happening. The current system has been described by the BMA as harmful, unpredictable and unjust. So it is; but we believe that the Bill, were it to be properly framed, could rectify that. One other recommendation by the Chief Medical Officer in Making Amends was that an avoidability test would be preferable. On these Benches, we would like to see that approach probed—not least because it would shift the blame away from individual practitioners and focus, perhaps, more on systemic failures. I listened with great care to the noble Baroness, Lady Finlay of Llandaff, as she made her defence of the Bolam test. Having listened to her, it seemed that there was nothing in what she said that could not have been understood by a patient. It was the sort of full explanation that patients often look for but frequently do not get. If they were getting that quality of information, then a great many cases would not come forward in the first place. An avoidability test, running alongside initiatives such as the National Patient Safety Agency in its Being open programme, would change practice in ways that would be preferable. We should spend time in Committee looking at that. Another reason for drawing attention to the avoidability approach is that the Bill, as it stands, appears to refer only to clinical or medical errors. What is not clear is whether the scheme would include cases in which a wrong diagnosis was made, or a wrong course of treatment pursued for another reason—for example, administrative failure. Clause 1 lists the healthcare staff whose actions are included in the scheme, However, it is not possible to tell, for example, if a lab technician makes a technical mistake or uses equipment which renders a treatment faulty—and that, in turn, causes wrong treatment down the line—whether that will be covered by the scheme. The noble Baroness, Lady Tonge, made that point well. There are a number of detailed questions I wish to put to the Minister at this stage. I believe doing so will improve the quality of debate at subsequent stages of the Bill. Clause 1 refers to diagnosis of illness. It does not state that the scheme includes advice given to a patient. Why? Clause 8 concerns the provision of legal advice. What research has been done to ascertain the effect on the Legal Aid Fund? In Clause 8(2) there is reference to a ““specified person”” who will prepare a list of providers of legal advice. Who will that specified person be? Clause 9 deals with assistance for individuals seeking redress under the scheme. It is not clear who should provide the advice, or how they will be paid. Noble Lords will require clarification of that. Clause 9(1) appears to be a provision for the Secretary of State to be given the power to appoint a representative to assist an applicant:"““by way of representation or otherwise””." What does that mean? Clause 10 refers to the requirement on members of the scheme to make payments. On what basis will contributions be made? Will there be a per capita basis for members of the scheme? Will the fees be risk-related? Will members of the scheme who carry out more complex procedures have to pay weighted contributions? Or will members who have a comparatively poor track record have to pay higher levels of contributions? Clause 10 also requires a scheme member to charge a specified person with responsibility for overseeing the scheme. How will that requirement relate to clinical governance and existing complaint arrangements? Clause 12 deals with the extremely important matter of disclosure but its drafting is extremely confusing. Does the clause apply to applicants, to scheme members or to both? Access to information is at the heart of any process of investigation or redress and it would be in the best interests of the debate if the Minister could answer this question at an early stage. I have one final set of questions for the Minister. How will the scheme be monitored, reviewed and evaluated? How will learning from individual cases be made known and acted upon throughout the NHS? That will be the true test of whether or not the proposals work. It could turn a cost-avoidance measure into a real driver for change and improvement. The Minister will be well aware from today’s debate that there is good will towards the Bill. This reflects the good will of the population towards the NHS and, as the noble Lord, Lord Parekh, has told us, the desire among people in Britain to remain supportive of our National Health Service and to prevent an American-style litigation culture entering our healthcare system. This kind of legislation involving technical matters comes up once in a very long while, but it provides an important opportunity for the House and Parliament to be at one with the British people in saving our NHS from unnecessary and undue interference from litigation. For all those reasons, I hope the Minister will be expansive in his answers and enable us to speed the passage of the Bill, in an improved form, through the House.