NHS Redress Bill [HL]

My Lords, this has been an interesting debate on an important Bill but, I have to acknowledge, there have been varying degrees of enthusiasm for the Government’s approach. However, I take some comfort from the level of support for the Bill’s underlying principle that those who are damaged by their healthcare deserve a better response than the one they currently receive. I was a bit disappointed by the approach of the two Opposition Front Benches; we will no doubt come back to their concerns in Committee. I gently say to the noble Earl, Lord Howe, that I was a bit surprised to hear, by his own acknowledgment, that the Conservative Front Bench wanted to create a lengthier, more bureaucratic scheme involving a second body—the Healthcare Commission, possibly—which already has onerous duties. I was particularly surprised, given the noises that have come from the Conservative Front Bench in the other place about excessive bureaucracy and the need to cut red tape. I ask the noble Earl to reflect on the fact that when we get to Committee, we shall look very carefully at whether proposals from Opposition parties would make the scheme lengthier, more bureaucratic, less easy to work and would create a more complicated set of arrangements for patients to work their way through. I hope that we will be able to keep those considerations in our mind as we discuss the details of the scheme in Committee. A number of noble Lords referred to the report Making Amends and have implied that we have cavalierly dropped most of the Chief Medical Officer’s recommendations. The NHS redress scheme is designed to take forward one recommendation, but we are working with other government departments to take forward other reforms proposed in Making Amends. For example, we are taking forward recommendations 6 and 8 on reforms to the NHS complaints procedure and we are considering taking forward recommendation 17, which will prevent court awards reflecting the cost of private treatment as part of wider reform to Section 2(4) of the Law Reform (Personal Injuries) Act 1948 in conjunction with the Department for Constitutional Affairs. I am very happy to write to noble Lords before Committee to set out how some of the proposals are being taken forward in a different way outside the Bill, so that there is no misunderstanding when the Bill reaches Committee. A number of noble Lords have referred to why the scheme for severely neurologically impaired babies is not in the Bill. Since Making Amends was published, the National Service Framework for Children, Young People and Maternity Services has been published. This is a 10-year plan and includes a developmental national standard to address the requirements of all young people who are disabled. On 12 October 2005, we published a statement of intent which sets out action planned and already under way to meet the complex needs of this group of children. I remind noble Lords that, because of the high value of financial redress attached to such cases, severely neurologically impaired babies are likely to be outside the scope of the NHS redress scheme. However, I can give further and better particulars on this issue to noble Lords in writing before Committee. Several noble Lords asked why the scheme does not currently cover primary care settings. Most incidents of clinical negligence in primary care settings would result in very small-value claims the handling of which would incur high administrative costs. GPs and other primary care practitioner organisations have private indemnity arrangements with the Medical Defence Union and the Medical Protection Society. As the noble Lord, Lord Turnberg, said, these are private organisations which collect insurance-type premiums from their members. Further discussions need to be held with the stakeholders to establish how funding flows would work if the NHS Litigation Authority as the scheme authority were to take over a significant proportion of their low-value claims via the NHS redress scheme. Inevitably, that would need amendments to legislation, but it is a complicated issue. The issue of rights of appeal was raised by a number of noble Lords. At present, the Bill does not propose the right of appeal, but if a patient is dissatisfied with an offer made under the scheme, the patient may reject the offer and seek redress through the courts. Patients will get access to the independent legal advice on the offer that is made to them without charge. I was asked whether there would be an independent element. The aim of the NHS redress scheme is to support local resolution. However, where patients are unhappy, a complaints procedure will be in place. Several noble Lords asked about time limits. The detail of the scheme will be set out in secondary legislation. I assure noble Lords that it is intended that full consultation will take place to ensure that the fine detail of the scheme—such as the exact time limits that will be set at each stage—is worked out in a way that enables the scheme to operate effectively in practice. I could not resist smiling—the noble Baroness, Lady Tonge, caught me—when she was delighting the House with stories of exhausted health professionals bowed down by government targets. I remind her gently that those targets arose because patients actually made the not unreasonable request that we improved access to GPs, improved accident and emergency services and had shorter waiting lists. I am sorry if she and her colleagues are bowed down, but I read recently in the media that our GPs were actually paid rather well compared with the rest of Europe so there seems to be some compensation for the onerous responsibilities that they discharge. As I remember, GPs were relieved of their obligations on out-of-hours services under the changes that we introduced as a result of discussion with them. I thought that we should put the record straight in that particular area. Noble Lords raised the important issue of whether we could be heading towards a US-style litigation culture. The noble Baroness, Lady Murphy, touched on that. In terms of clinical negligence claims specifically, claims against the NHS actually continue to fall. An average of 439 claims per month were made under the clinical negligence scheme for trusts in 2004–05 compared with 481 in 2003–04. That is still more than we would like, but the trend is not going upwards: it is going in the opposite direction. Several noble Lords, and the noble Baroness, Lady Finlay, in particular, raised the issue of the Bolam test. Any offer of redress will be made only on the basis of a liability in tort arising under the law of England and Wales. The same test for negligence as applied in civil proceedings will be applied to cases under the redress scheme. Those tests are currently the Bolam and Bolitho tests. The Bolam test provides that a professional is not negligent if their practice was in accordance with that accepted as proper at the time of treatment by a responsible body of medical opinion, even though other doctors adopt a different practice. I will not go into the detail of that, but I am trying to reassure her that we are not changing the test in any way under this legislation. The noble Lord raised the issue of the NHS Litigation Authority having a conflict of interest. I am anxious not to end up with such a complicated set of arrangements that they are off-putting to patients. It is intended that any patient who is offered a settlement under the scheme will be given the opportunity to have the offer assessed by independent legal advice, which will be provided without charge. It is not just the NHS Litigation Authority calling all the shots, although it has considerable expertise. We can go into the detail of determining liability at the appropriate level in Committee. The measure has a lot to offer, and I hope, in Committee, to convince your Lordships of that. Noble Lords have rightly chided us and asked when they will know the detail of the scheme. Regulations will not be published until after Royal Assent, but there will be full consultation on draft regulations before the scheme starts, which we envisage to be April 2007. The issue of whether it will take the NHS in the wrong direction regarding how it deals with patients’concerns has been raised. We know, and I shall give further and better particulars in Committee, that many of the best trusts are already looking at how best to respond to patients when things go wrong. We want to support all NHS organisations to reach that standard, and we think that the Bill will help to do that. The issue of whether the NHS redress scheme will cover MRSA was raised. The scheme will cover claims arising out of hospital services provided to patients as part of the National Health Service in England. It may cover cases involving MRSA if there is liability in tort and the case falls below the financial threshold. I like dealing with health Bills in this House as we invariably get on to the issue of cross-border flows between England and Wales. No doubt we shall discuss that subject in Committee when I shall no doubt receive support from the noble Baroness, Lady Royall. I can tell the noble Baroness, Lady Finlay, that the Department of Health and the Assembly have been working together on the proposals. Wales has broad regulation-making powers that do not commit it to establishing a scheme. However, clear guidance will be developed for all cross-border services, and commissioning responsibilities will be agreed at the outset. There will be no uncertainty for patients or providers. I was asked whether doctors would be blamed, but the scheme is intended to resolve claims outside the adversarial process. We do not think it is likely that the scheme will increase the possibility of doctors being blamed. Claims under £20,000 currently cover about 75 per cent of settled claims. My noble friend Lord Parekh asked about the number of claims involved in the past few years. The average number of settled claims under £20,000 in financial years 2001–02 to 2003–04 was around 4,000 a year. That represents approximately 75 per cent of settled claims. I was asked whether the cost limit included remedial treatment costs. It does not. Remedial care based on clinical need will be provided under the NHS as a matter of course in particular cases. The noble Baroness, Lady Barker, asked who would hold the list of solicitors. It is intended that the list will be made available by the Legal Services Commission. She also asked whether misdiagnosis would be covered. Any case when there is a liability in tort, based on the current legal test, will be eligible, provided that liability arises out of services provided in hospital and in consequence of the act or omission of a healthcare professional. That would be the test applied if there were concerns about misdiagnosis. I was asked how the scheme would be funded. We expect it to be funded along the same lines as the clinical negligence scheme for trusts. The detail of the funding mechanisms will be set out in secondary legislation and the contribution paid by each scheme member will be advised by the NHS Litigation Authority. Contributions may be adjusted in the light of the relevant risk rating of each individual scheme member. I have tried to cover as best as I can some of the issues raised. I assure noble Lords that I shall study Hansard carefully and will reply to all the questions to which I have not given full and frank answers in this debate. As it is in my best interests, I shall endeavour that the letters get to noble Lords before Committee, so I can guarantee to write to noble Lords on those particular issues. On Question, Bill read a second time, and committed to a Grand Committee.