NHS Redress Bill [HL]

moved Amendment No. 1:"Page 1, line 4, leave out ““without recourse to civil proceedings””" The noble Earl said: We begin with a large group of amendments that are all of a piece. Their purpose is to give effect to the proposals that I outlined at Second Reading to make the NHS redress scheme a different sort of scheme from that which the Government have given us in the Bill. In essence, these amendments do one thing: they say that the scheme should not attempt to be the all-enveloping casserole of investigation, fact-finding, giving explanations, fault-finding, commissioning remedial treatment and assessing and awarding financial compensation. Rather, it should confine itself to something far simpler and more comprehensible; namely, a fact-finding exercise designed to deliver what aggrieved patients say they most want, which is an explanation for what happened to them, an apology, where appropriate, and a clear sense that the right lessons have been learnt to prevent the same thing happening again to somebody else. In our view, determining legal liability for negligence should be a completely separate process, carried out independently from the NHS and any of its associated bodies. It is not appropriate for decisions about legal liability to be taken by a non-judicial body, nor is it fitting for a non-judicial body to decide upon the quantum of compensation. Some later amendments will deal with the lack of independence in the Government’s proposals, so I shall not pre-empt them here, other than to say that that lack of independence will prove to be the single biggest obstacle to public confidence in the scheme, should the Government press ahead with it. On a broader front, we believe that the Government have been too ambitious and, consequently, that the scheme as proposed is misconceived. We propose that the scheme should provide an independent and rigorous fact-finding process, the facts to be investigated being those that may give rise to a qualifying liability in tort. The investigative process would be wide ranging and include appropriate inquiry into accepted clinical practice. What actually happened should be looked at in the context of the appropriate therapeutic or diagnostic options—in other words, what ought to have happened. In most cases it will need to be assisted by independent medical experts. It will confine itself to facts and avoid legal concepts of fault, such as negligence, breach of duty and tortious liability. Errors in clinical practice can be considered as issues of fact. Some errors are negligent, some are not. At the end of the fact-finding process, there may be a finding of error. A useful model is the coroner’s inquest. It is a fact-finding inquiry, not a fault-finding one. In an inquest the evidence is rigorously examined, at the end of which there may be a verdict of accidental death without issues of legal liability being raised—some accidents are negligent, some are not. The findings of fact that emerge from an inquest may or may not be used as the basis of a compensation claim by another process. An analogous situation would pertain if our simpler version of the redress scheme were to be adopted. At the end of the process we would envisage that the fact-finding exercise would give rise to an explanation in every case, an apology wherever an apology was called for, and lessons to be learnt, as appropriate, in relation to clinical practice. The lessons to be learnt element is closely analogous to what coroners not infrequently do, which is to take action at the end of an inquest that is designed to prevent the occurrence of similar fatalities. The investigation and determination of tortious liability and the assessment, evaluation and award of compensation, are functions which in our view must necessarily be independent of the health service. The NHS cannot determine liability against itself because that imports a conflict of interest and infringes all the normal rules against bias. Indeed, it represents such a fundamental breach of the principle of natural justice, that in our opinion it cannot be rectified by trying to introduce safeguards. If the process of the investigation of fault—determining liability, assessing damages and awarding compensation—were to be dealt with outside the scheme, independence would be built in. The NHS trust and the patient would use the fact-finding process as the basis of a settlement. Civil compensation can be pursued in a number of ways: by negotiation, mediation or, if need be, through the courts. I shall be perfectly frank; our alternative proposal has a drawback. It will increase the time taken for a patient to obtain compensation. There is no getting away from that. However, let us also remember that compensation as such does not rank high in the public’s wish list. It may well be that not many claims will attract compensation. No system can be perfect, but we believe that an independent investigation and the giving of a fact-based explanation in every case are more important than the expediency of obtaining rapid compensation in the minority of cases that are likely to attract such compensation. I hope the Minister will accept that my intentions here are honourable. I am not criticising for the sake of it. The Government have done a very worthy thing in trying to tackle the present highly unsatisfactory system of civil litigation in relation to NHS negligence claims and I applaud that. However, if we are to create a new system, please let it be a coherent and workable one. I am afraid that, for the reasons I have stated, I do not believe we can remotely say that of the Government’s current proposals, which is why I genuinely hope that the ideas I have put forward will provide the Minister at the very least with some food for thought which we can chew over as these Committee debates move forward. I beg to move.