NHS Redress Bill [HL]

I am afraid that we will have to agree to disagree on this issue. Bringing in a large number of independent people in these cases, which is what this amendment would do, would damage the fundamental basis of the Bill and the approach that is being provided here. It would be extremely bureaucratic. I would suggest that it would be unnecessarily costly. We are talking about a significant number of cases where independent people would be brought in to carry out the investigation. The process of change taking place is likely to be slowed down. In the case that the noble Baroness mentioned, the seriousness of those issues is likely to be well outside the scale of the NHS redress scheme. We are talking about learning at a local level from a proper local investigation, which provides the greater opportunity for that learning to take place in an organisation. Organisations are able not just to identify what went wrong, but also to look at how it was allowed to happen. That is at the core also of the NPSA adverse incidents report, which will get people to take responsibility. This is all part of the agenda of trying to get bodies within the NHS to take responsibility for the actions that have taken place when something has gone wrong. The approach in the Bill is consistent with the way in which complaints have been handled in public bodies. The scheme is intended to facilate the resolution of cases in a swift manner, ensuring that redress is provided to the patient as quickly as possible. There are a range of measures, from apologies to explanations, through mediation, to financial redress that would enable the local body—the scheme member—to put right the wrong that has been done to the patient. Extensive consultations and discussions have been carried out with stakeholders during the development of the policy behind the scheme, and there is general support for the principle of local investigation and resolution of cases. The Healthcare Commission in particular was consulted on its potential role under the scheme, and expressed concern that any role with regard to undertaking investigations under the scheme would represent a conflict of interests in light of its current role in the complaints process. I cannot be clearer about that; if we required the commission to take on the role that some Members of the Committee suggest, on the commission’s own advice and our views it would represent a conflict of interests as well as damaging the underlying thread of the scheme—which is local accountability and local responsibility for investigating when things go wrong. Clause 8(1)(b) enables the scheme to make provision for services designed to help in reaching an agreement to settle. That provision enables us to introduce independent medical experts to facilitate agreement; that does not mean to say that they are on one side or the other, but they are seeking to resolve a dispute and they are using their independent medical expertise to help to clarify matters and to get things right. We have agreed that under Clause 8(1)(b) there will be scope for independent mediation to help in many of these cases. All those approaches do not in any way absolve the local trust from its obligations to carry out investigations established under the scheme. Later, when we come to the issue of making an offer, which to some extent is affected by Amendment No. 58, it is worth bearing in mind that Amendment No. 58 requires the scheme to provide,"““any judicial or investigative functions to be carried out by person or persons independent of the scheme authority””." As regards judicial functions, the scheme is intended to provide a mechanism for enabling cases to be settled without having to go to court; that is its whole purpose. As such, no judicial functions in the sense of functions exercised by a judge are exercised under this scheme. It is intended that the scheme authority will assess eligibility and if appropriate make an offer to settle; but the patient can 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. As regards judicial functions in the sense of administrative functions, when what is fair and just must be considered it is intended that the scheme authority will assess eligibility in quantum, but it is intended that the patient will have independent legal advice without charge so that the fairness of the offer can be considered. We are not opposing independence at various points of the scheme; we are simply saying that if you start at the beginning of the scheme and immediately refer all the cases to a so-called independent investigator, you will first of all create an extremely bureaucratic and costly process but perhaps, much more seriously, you would damage the obligation and responsibility of the local trust for investigating their own mistakes and putting right the wrong that they have done to the individual patient. That is the kind of cultural shift that we are trying to achieve in the NHS through the Bill. With the greatest respect to Members of the Committee, I believe that their approach will damage what lies at the heart of the Bill.