NHS Redress Bill [HL]

My Lords, I, too, thank the Minister for his clear explanation of the Bill and I pay tribute to the vast expertise and knowledge that has been shared today in your Lordships’ House. It may be a small Bill, but it has stirred much interest. My own interest stems from when I was a board member and deputy complaints convener of the Salford Royal Hospitals NHS Trust. I say to the noble Baronesses, Lady Murphy and Lady Tonge, that the drafting of letters and getting the tone right is not easy. After one investigation I wrote a letter which was open, warm and understanding—and was immediately reported to the ombudsman because it was not legalistic. I say to the noble Lord, Lord Turnberg, whom I first met at Hope Hospital, that his voice sounds lovely and that it did not affect his customary good common sense in any way whatever. As my noble friend Lord Howe said in his opening speech, the need to reform the system is plain. We are glad that legislative time has been found to consider this issue, albeit two years after the Chief Medical Officer’s excellent second report, Making Amends. As my noble friend Lord Colwyn said, we support the idea of greater openness between patients and the medical establishment when things go wrong, but share the concerns so eloquently expressed by the noble Baroness, Lady Neuberger, about how effective that will be. We would have liked to have seen greater encouragement of mediation to resolve disputes. The use of mediation has received wide support from a number of bodies, including the NHS Confederation and doctors’ groups, and the NHS Litigation Authority has itself adopted a positive policy of encouraging the use of mediation. Dr Stephanie Brown of the Medical Protection Society said:"““The move away from purely financial compensation towards a more comprehensive package of redress for patients including an apology [and] explanation . . . is positive””." And yet, by focusing, as this Bill does, on monetary compensation, the importance of factual investigation and the knowledge gained from lessons learnt are relegated. As many noble Lords have mentioned, and as my own experience has taught me, the majority of people who seek redress from the NHS simply want an answer to the many questions they ask themselves. They want the opportunity to meet the clinicians face to face. In some cases that will be an important part of the grief process, a necessary component if families and individuals are to move on with their lives. Some just want someone to say that they are sorry. There is also a strong sense of the greater good, a need to know that things will change and that wherever possible the same thing will not happen to another person. An important litmus test of any scheme that seeks to rectify a wrong is public confidence in that scheme. The Bill will not increase public confidence in the NHS redress system if it enables the NHS to be judge and jury. If the NHS investigates the fault and then awards compensation against itself there is a clear conflict. We on these Benches agree with the noble Baroness, Lady Finlay of Llandaff, that the redress scheme should be robust and limited to an independent fact-finding investigation with the power to make recommendations to avoid the recurrence of similar events. It should not extend to finding blame or paying compensation. The factual explanation received can be used as the basis of a compensation claim which may have a better and fairer outcome for the patient outside the redress scheme. Our proposals reflect patient expectations and priorities. We support steps to encourage and support those with a real claim but seek to prevent those looking to attack the NHS unreasonably. As the Medical Protection Society has said,"““a fair balance needs to be achieved between the rights of patients to receive compensation and the rights of healthcare workers not to be criticised unfairly””." The Bill takes no measures to protect the NHS against spurious claims and also may encourage patients to settle for £20,000 or less when they should receive more. The Department of Health already acknowledges that that may lead to an increase in costs. Indeed, as the Bill provides for free independent legal advice, how does the Minister know that the cost of legal aid will be reduced? There seems little point in replicating structures and bureaucracies within the NHS when they already exist outside, so the Bill must not replicate the work of the courts; particularly when the Government claim that they are trying to cut down on red tape and improve the effectiveness of public services. Nor must it be allowed to become a free lunch ticket for ambulance chasers. The Bill gives the Secretary of State the power to establish, by regulation, a scheme for the victims of medical accidents to obtain redress without recourse to legal proceedings. There have been major concerns that it is a little light on detail. To pick up on an important point made by the noble Baroness, Lady Morgan of Drefelin, if patient X turns down an offer of compensation under the scheme having received free legal advice, will he be denied access to legal aid? As my noble friend Lord Howe highlighted,      we will be looking during the course of the Bill to flush out more detail on how the scheme will operate,      who will be making particular decisions, the eligibility criteria and awards available. As the noble Baroness, Lady Barker, said, the Bill raises many questions. We will be taking a close look at Clause 11 and like the noble Lord, Lord Parekh, we will want to question the composition of the body that will run the scheme and the nature of any tribunal that will determine liability. There appears to be a provision in Clause 9(1) for the Secretary of State to be given the power to appoint a representative to assist an applicant,"““by way of representation or otherwise””." We would like to probe the intention of this clause. Any applicant under the scheme, if he or she so wishes, must have the freedom to make their own choice of a person or organisation to assist with any claim. In the absence of freedom of choice, doubts are bound to arise about the impartiality of the adviser. The Health Minister, Jane Kennedy, said that her priority is,"““to encourage openness and a culture that is willing to acknowledge when things have gone wrong””." The Bill presented the Government with the opportunity to do just that. Yet I share the concerns of my noble friend Lord Howe and others that this opportunity was wasted. The British people are not revengeful. Nor do I believe that we yet have a compensation culture. Research shows that following a clinical event that goes wrong, most patients are not after money; as the noble Baroness, Lady Morgan, said, they just want an explanation and, where appropriate, an apology. By concentrating as it does on compensation, our greatest concern is that through the Bill, we may end up with the one thing that we are trying to avoid.