NHS Redress Bill [HL]

There are an extremely large number of amendments in this group, so I hope that the Committee will forgive me if I deal with them—certainly for the record—in some detail. On Amendments Nos. 1, 6, 34 and 40, I consider that it is an important and integral part of the scheme that the investigation of an incident is combined, where appropriate, with the resolution of the case through an offer of redress, which we will come back to on several occasions in Committee. I suspect that that is a point on which we fundamentally disagree with the noble Earl, Lord Howe. But I shall try to convince him of the merits of our case. Amendments Nos. 1, 6, 34 and 40, if accepted, would change the entire nature of the scheme, which I think the noble Earl openly acknowledged was his purpose. Amendment No. 1 seeks to remove the words ““without recourse to civil proceedings”” from Clause 1(1). The effect would be to redefine the relationship between the NHS redress scheme and the taking of civil proceedings. Under the Bill as it stands, the scheme presents an alternative to civil proceedings for those claims which fall within it. The NHS redress scheme is intended deliberately to provide a mechanism for the swift resolution of low monetary value claims in tort without the need to go to court. If we accepted these amendments we would lose those benefits entirely. So this amendment would prevent the scheme from offering a real alternative to court action. Amendment No. 34 would require the scheme to provide for an investigation of cases under the scheme to relate only to an examination of the facts, as the noble Earl, Lord Howe, said. Again, this amendment would prevent the scheme from offering a real alternative to court action as it would prevent the determination of liability under the scheme, which, again, would be a major wound—if I may put it that way—being administered to the Bill and the scheme. The amendments should be resisted because they will create a partial scheme rather than a complete scheme, and that is not what patients want. It was also not what the Chief Medical Officer proposed in Making Amends and as I listened to the debate in Second Reading, I thought that Sir Liam Donaldson was close to achieving sainthood. The amendments would effectively nullify one of the key recommendations of Making Amends. They do not allow for the provision of true redress in all cases. Of course, redress involves investigations and explanations, but in some cases it also necessarily involves financial compensation. Dare I say that it may also involve mediation? I will come on to that; it was raised strongly on Second Reading. As currently envisaged, the scheme that we are proposing delivers clear benefits for patients. It provides a real alternative to litigation for those cases of low monetary value that fall within the scheme, which addresses the delays and risks around legal costs that can arise in seeking to take a case through the courts. We do not wish to replicate the current legal system for cases under this scheme. To be effective in driving culture change in the NHS, another issue that was strongly raised, particularly by the noble Baroness, Lady Neuberger, on Second Reading, and to facilitate providers of hospital care to effectively learn from their mistakes, it is essential that scheme members take all responsibility for resolving cases under the scheme. That is where we part company with the remarks made by the noble Earl, Lord Howe, and the noble Baroness, Lady Neuberger. To change that culture and to take responsibility at the scheme member level they will not only need to investigate where things go wrong, but they have to provide full and appropriate redress to the patient who has been harmed without the need to go to court. It is not getting them to face up to their responsibilities if they simply investigate the facts. One of the main objectives of the NHS redress scheme is to put the patient at the heart of the process when something goes wrong with their hospital care. That can best be achieved by an NHS redress scheme that provides another option to patients who wish to seek redress following an adverse healthcare incident, rather than by requiring them to pursue their case through the existing legal system, which is acknowledged to be complex, slow and costly. The aim of the scheme is to protect the interests of patients when they are at their most vulnerable, following an adverse healthcare incident. To achieve that, it will be crucial to provide the full redress that they are entitled to, without the need to face the daunting process of civil litigation. The amendments, taken as a whole, would simply lose all that. It would leave people with the requirement to contemplate an action through the courts. The scheme aims to provide real redress in its widest form. That will include explanations and investigations, but to be meaningful it must also include financial compensation, where appropriate and where wanted. It is important to emphasise those two qualifications—where appropriate and where wanted. For the first time, it puts patients at the heart of the process, and it will ensure a simpler and more effective approach to ““making things right”” for patients and ensuring that where there are liabilities in tort arising out of hospital care provided as part of the health service in England, the NHS authorities openly acknowledge and provide full and proper resolution. The NHS redress scheme is intended to provide a mechanism for the resolution of low-value claims without the need to go to court. One of its main objectives is to provide an alternative to the existing legal system. The effect of Amendments Nos. 7, 12, 13, 14, 15, 16, 17, 29, 31, 32, 35, 61, 66 70 and 71 would be to prevent the scheme from offering redress in the form of an offer of financial compensation. They would confine its remit to the provision of explanations, remedial care and treatment. We oppose these amendments on the grounds that I have already argued, that they fundamentally undermine the purpose of the scheme. In its everyday usage, ““redress”” has two meanings—remedy and compensation. I accept that not all cases in which mistakes have been made will warrant financial compensation, but it is right that all cases are remedied. Where appropriate, that ought necessarily to involve proper and appropriate financial compensation. A truly meaningful redress scheme for the NHS will allow compensation to be made in appropriate cases. The way to resolve problems about services is for the NHS to take a different approach, one that encourages proper investigation, explanations and apologies where appropriate. I suspect that there is nothing between the noble Earl, Lord Howe, and myself on that; we differ on the issue of patients who have a genuine claim in tort and want financial compensation, which should be available to them where possible without going to court. The scheme will provide a real alternative to litigation for lower-value cases. For the patient, it removes the risks of litigation, which are somewhat daunting for many people. It provides greater access to justice, while reducing the burden of unnecessary legal costs. Amendments Nos. 6 and 40 would remove the bar on the scheme being used in cases where civil proceedings relating to the same liability take place or have taken place. We resist the amendments for similar reasons to those that I have indicated. Under the Bill, the scheme presents an alternative to civil proceedings. It is not appropriate that an individual who is already pursuing his or her case through the courts should be able to pursue the same case through the redress scheme. The amendments would enable double handling of cases, with the potential for duplicated investigations of cases under both scheme and court proceedings, which would result in unnecessary increases in bureaucracy and staff time diverted from providing clinical care. Moreover, the latter amendment would undermine the fundamental aim of the scheme—to provide full and appropriate redress to patients harmed by their hospital care, without the need to face the complex, slow and costly process of civil litigation. Clause 7 requires the scheme to provide for the suspension of any time limit for bringing civil proceedings in respect of a liability to which the scheme applies. It refers to the suspension of any time limit in relation to liability that is the subject of proceedings, because the scheme may apply only to cases involving qualifying liabilities in tort. Clause 1 restricts the scheme to applying to cases where there is a qualifying liability in tort. ““A matter”” cannot be the subject of proceedings under the scheme as proposed. The scheme can cover only certain types of liability and only such liabilities can be the subject of proceedings. Amendments Nos. 41 to 43 seek to enable the time limit to be suspended when a matter is simply being investigated. The amendments are intended to ensure that, should the scheme be modified to limit it to being an independent fact-finding investigation, with legal liability being decided outside the scheme, the time limits for bringing a court action would still be suspended. We intend to resist the amendments, because they would affect an essential part of a coherent NHS redress scheme. A fundamental objective of the scheme, with those provisions, is an essential part of full and appropriate redress to patients harmed in their hospital care. Amendment No. 46 would prevent the scheme stipulating that services, other than free legal advice, were to be provided to help the parties reach an agreement to settle a case. The amendment removes the ability for the scheme to provide for the provision of services designed to help in reaching an agreement to settle. As I have indicated, we consider it an important and integral part of the scheme that the investigation of an incident is combined, where appropriate, with resolution of the case through the offer of full and appropriate redress. The Bill provides flexibility for the provision of services that may help to reach an agreement to settle. It is intended that further consultation with stakeholders will take place to identify what services might be most appropriate and effective for these cases. Options may include mediation services or, if appropriate, the services of a jointly instructed independent medical expert. This group of amendments would prevent these other ways of securing redress being used in a holistic scheme of the type proposed in the Bill. The Government have made clear their commitment to the use of mediation in an alternative disputes resolution. It is a valuable tool in helping to reach resolution of cases and it supports genuine empowerment of individuals at times of dispute and difficulty—an area that would be lost if we accepted this group of amendments. In cases where there has been an adverse outcome in an individual’s NHS care, patients and their relatives invariably want to know what has happened. They seek answers, often to the most basic questions. Sometimes, above all, they seek the knowledge that someone is willing to listen to them and that their experience is both valid and valuable. That is precisely why the Chief Medical Officer recommended in Making Amends that there should be more use of alternative disputes resolution for those cases that are still litigated. We agree with that recommendation and want to take it further and encourage wider use of ADR in cases where patients are dissatisfied with their healthcare. It is worth putting on the record that the NHS Litigation Authority is already showing significant commitment and leadership in the field of alternative disputes resolution for clinical negligence cases. In recognition of that, the Centre for Effective Dispute Resolution awarded the NHS Litigation Authority the public sector award in its tenth annual awards for excellence in ADR, held in June of last year. The body has a good track record in trying to resolve disputes through mediation—again, something that would be lost were we to agree this group of amendments. In closing, I shall deal with issues related to a separate body. We had a little tussle over this in Second Reading, where I pointed out to the noble Earl, Lord Howe, that he seemed to be lining up on the side of extra bureaucracy in his proposed approach. However, it behoves those who want to replace the NHS Litigation Authority to come forward with an alternative proposition that is credible. The noble Baroness, Lady Neuberger, raised the option of the Healthcare Commission. We have had conversations with the Healthcare Commission, but it is worth bearing in mind in that context that the Healthcare Commission is aware—as are many other people—that there has been strong support for the NHS Litigation Authority becoming the scheme authority. The Healthcare Commission, for example, believes that the scheme authority needs to be someone external to the complaints system and that the NHSLA already has the skills and expertise in determining the legal liability and quantum. The NHSLA has the resources, expertise, experience and skill-mix to oversee delivery of the redress scheme. It has the system set to administer claims of clinical negligence against NHS bodies and has an existing relationship with every trust in England through its work on the clinical negligence scheme for trusts. Because of that unique relationship, the NHS Litigation Authority is in a strong position to be the scheme authority. The Healthcare Commission sees a conflict of interest in taking on this role, with its role in relation to complaints. It also does not believe that it has the necessary skill-set to take on this particular role, so it would be deeply opposed to being the substitute body for the NHS Litigation Authority. We have not heard of any alternative options and we believe that the NHS Litigation Authority is fit for the purpose. It has public credibility in the way that I have indicated and it already tries to resolve disputes in an acceptable way with claimants through work on alternative disputes resolution. I shall say just a few words in conclusion about some of the other amendments. Amendment No. 17 removes the requirement for the scheme to include an upper limit on compensation for pain and suffering where an overall limit on compensation is not set. The current policy intention is that the scheme will when initially established cover all heads of damages that will be covered by a court award up to the single overall limit of £20,000. We believe that that is an important part of our holistic scheme. Amendment No. 29 would have the effect of removing the explicit provision for the scheme to make provision for time limits in relation to acceptance of an offer of compensation under the scheme. That may cast doubt on whether the very general power in Clause 6(1) could be used to make this type of provision. We believe that that would damage the nature of the scheme in the way that I have suggested. The same consideration would apply in relation to Amendments Nos. 32 and 35. I have tried to give as full an explanation as I can on the Government’s reaction to this very large group of amendments and put on the record our concerns. However, on the general thrust of the noble Earl’s arguments, we do not believe that it is appropriate to replace the NHS Litigation Authority. We believe that it is a competent body to do the job that is required. But much more seriously, in terms of the approach, we believe that it is right and proper to have a holistic scheme which governs all the way from the investigation of the facts up until the point of being able to give financial compensation as part of redress with a variety of interventions along the way. That is what we have tried to provide for in this legislation.