NHS Redress Bill [HL]

Once again, perhaps we could spend a moment or two discussing the provisions of Clause 3 since, alongside Clause 1, it contains many of the Bill’s key provisions. First, Clause 3(3)(a) refers to compensation taking the form of entry into a contract to provide care or treatment. I simply ask: why is it necessary to spell that out? If a patient has suffered as a result of negligence, he is surely entitled to remedial treatment in any event as an NHS patient. It is therefore a little difficult to understand why it should be an item of redress even when it is indicated as being appropriate. I should like to spend a minute talking about the upper limit for compensation payments. We have heard that the upper limit is likely to be set initially at £20,000. Although it would be easy for me to say that there is an arbitrary element to choosing that figure, I shall not say that because there is, I freely concede, some method in it. About three-quarters of all settled negligence claims against the NHS are for sums below £20,000. It is therefore not illogical to regard £20,000 as marking the upper limit of lower value claims. The problem is that setting any upper limit—no matter what figure is chosen—is bound to lead to unfairness, or the perception of unfairness, when an offer of compensation is made under the scheme at or around the maximum amount. How will it be possible to avoid a situation where the scheme authority, believing that the value of the claim may actually be slightly more than £20,000 decides, nevertheless, to make an offer of £20,000 on the basis that the claimant is unlikely to risk civil litigation in order to get a few thousand pounds more? How will it be possible for the claimant always to detect that this is what has happened? He will not be able to. In some cases, the true worth of claims at the upper end of the scheme range will almost inevitably be discounted to a smaller or greater extent in the compensation offers that are made. Such offers are likely to be accepted even where the claimant has reasonable cause to think that if he were to go to court he might get more. He will decide not to go to court because to do so involves risk, further delay and, of course, considerable uncertainty, and he may not be eligible for legal aid. Meanwhile, the NHS will unfairly enjoy a considerable, if unquantifiable, saving in the sums of money which it pays to compensate genuine loss or injury. In a nutshell, that is why the setting of any upper limit is bound to act contrary to the interests of natural justice. For that reason, even where an offer of compensation is pitched perfectly fairly at, say, £19,000 or £20,000, the perception on the part of some claimants will be that the offer is not fair. The very existence of the upper limit of £20,000 will put that thought into their minds. So a nagging sense of injustice is likely to prevail in many cases, even if the scheme works efficiently and properly. If the Government are wedded to their proposed model for the redress scheme, which I would naturally regret, I believe that they need to look again at the idea of having an upper limit on individual claims. Of course, there is a very simple way to avoid that dilemma, which is to adopt the model for the redress scheme that I have advocated. If the scheme is restricted to being a fact-finding exercise—offering an explanation and, where appropriate, an apology for errors made—the whole issue of monetary compensation is irrelevant. It would fall outside the scope of the scheme and would be dealt with separately where the patient or claimant wishes to pursue that possibility, which they do not have to do. Under that model, the quantum of compensation would be agreed without reference to anything other than a fair set of benchmarks in comparable cases and the view taken by the court or within the context of a negotiated settlement of what the injury was fairly worth. For this, as for other reasons, I commend the alternative model to the Minister in preference to the model favoured in the Bill. The general point that I seek to make about the clause is one that I have already mentioned, but which bears repeating. The clause focuses much too much on compensation at the expense of what patients really want and expect from a scheme, which is an explanation and an apology. If those things are not centre-stage in the redress scheme, they are bound to become relegated. That is a concern to me. Nothing that I have so far heard persuades me that the emphasis of the scheme is not skewed in that rather regrettable way. Equally, in this clause we have a set of powers which will establish a heterogeneous scheme that amounts legally and practically to a dog’s breakfast: one that involves investigation, fact finding, fault finding, arranging treatment and awarding compensation. I made the point earlier that this effectively amounts to a replication of the machinery of the courts, but without the independence or procedural safeguards that the courts afford to a litigant. The absence of those safeguards represents a very serious shortcoming. But it is potentially wasteful replication because, having received an offer under the scheme, a claimant is free to refuse and walk away and then to take his chances in court—whereupon the whole process of investigation and so on will begin again. Secondly, as we shall debate later, quasi-judicial functions such as determining a qualifying liability in tort and assessing the appropriate amount of compensation should not be performed by a non-judicial body like the NHSLA. It is a totally inappropriate function for them. I believe that this clause, more than any other, encapsulates the conceptual incoherence of the redress scheme as envisaged, and that only radical amendment of the scheme will put matters right.