NHS Redress Bill [HL]

I shall not repeat all the things that I said earlier today about the coherence of this scheme, which stretches from apology all the way through to a financial remedy. Ultimately, compensation is an integral part of redress. It is not the only basis of redress, but we believe that you cannot have a redress scheme without capacity in appropriate cases to make a financial remedy. In this scheme—I shall go into more detail in a moment—we have sought to separate out on a basis of value or financial ceilings, those cases which could be fitted within this scheme. We have sought to separate those cases out from schemes where the level of financial compensation would be such that it is appropriate to take them through the normal court system. I am always impressed by the noble Earl’s ingenuity in the arguments that he uses to support the end results that he wants. I pay full acknowledgment to that. I turn to Clause 3 and what it does and does not do. It lays down the basis for an effective and proper redress under the scheme, which, as a matter of course, places the emphasis on putting things right for patients when things have gone wrong. Where appropriate it will provide a real alternative to litigation for more minor cases. It is worth hanging on to that. A lot of people end up going to court, with very high legal fees attached, for the more modest scale of financial recompense. I would suggest that this scheme deals with those issues fairly efficiently. It will remove the risks of litigation for patients while reducing the burden of unnecessary legal costs for the NHS. Clause 3 obliges the Secretary of State to include in the scheme provision for, first, compensation where compensation is due and, secondly, the giving of an explanation. Where financial compensation is appropriate, the clause sets out the parameters of such financial compensation. It allows the Secretary of State to make provision for the scheme to make financial offers under the scheme and to specify within secondary legislation an upper financial limit for compensation. This can either be an upper limit on the total amount of financial compensation that may be included in an offer under the scheme or an upper limit on the amount of compensation that may be included in an offer in respect of a particular matter. If the scheme does not specify a total upper limit on the amount that can be offered, it must specify the maximum amount of financial compensation that may be offered in respect of pain and suffering, which is normally referred to in negligence claims as ““general damages””. At the moment, we expect the scheme will specify that the total financial limit that may be offered under the scheme will be £20,000. We believe that concentrating on the lower value claims will do the most to reduce disproportionate legal costs. The figure of £20,000 was arrived at after examining existing legal claims. Low value cases settled by the NHSLA in 2002–03 and 2003–04—about 4,090 and 5,690 cases respectively—show that legal costs were disproportionately high for cases up to £20,000. Cases settled where the damages award was above £20,000 show a significant reduction in the percentage of legal costs to damages. I reassure noble Lords that we will ensure that this ceiling is maintained in real terms—there will be mechanisms for doing that. The scheme may make provision with respect to the assessment of the amount of any financial compensation, and it is intended that the scheme will provide that the financial offer is to be broadly equivalent to the level of compensation that would be provided in a successful claim before a court including, where appropriate, damages for pain and suffering and loss of earnings. It is worth putting on the record some fundamental differences between this scheme and taking a case to court. The scheme is intended to provide a mechanism for enabling cases to be settled without having to go to court. As such, there are no judicial functions in the sense of functions exercisable by a judge. Those are not exercised under the scheme. It is intended that the scheme authority will assess eligibility and, if appropriate, make an offer to settle. The patient can of course reject that offer and seek to pursue his legal rights through the courts as he can also do if he has not been made an offer under the scheme. There is no requirement under the scheme to force someone to accept an offer that is made under the scheme. We are trying to achieve a scheme that is fair and just. It is intended that the scheme authority will assess eligibility and quantum, but it is also intended that the patient will have independent legal advice without charge so that the fairness of the offer can be considered. It is separate in form from a normal set of court proceedings. The patient is in the driving seat all the way along the process. They will have independent legal advice if an offer is made. They can decline to accept the offer and still go to court—we are not stopping them going to court. However, if they accept the offer of compensation, they will be debarred from taking a case to court, but that is a separate set of issues. They are being given independent advice before deciding whether to accept a particular offer. We think that this is a reasonable way to proceed. It will give many patients the opportunity to receive a fair financial offer where financial compensation is justified without having to go to court. As I said, we will maintain the value of that ceiling as time progresses.