NHS Redress Bill [HL]

Amendment No. 9 would mean that the scheme would have to provide that a waiver of the right to bring civil proceedings would be valid only where the terms of settlement and the effect of the waiver had been fully explained by a suitably qualified legal adviser. In law, a waiver is valid only when it is based on clear, unequivocal and properly informed consent. Therefore it is not necessary for the scheme specifically to provide that the waiver shall be valid only when the person has received appropriate advice. We intend that under the scheme, independent legal advice on an offer of settlement will be available to all patients and other people eligible under the scheme to enable them to have the offer of redress independently evaluated by a solicitor without charge to them. It is intended that the scheme will provide for free legal advice to be given to the patient for the purpose of assessing whether or not the offer is reasonable and equivalent to what they would have received through the courts. It is also intended that that advice will cover also the implications of signing a waiver. We therefore do not consider the amendment to be necessary. Amendment No. 44 would place a new duty on the Secretary of State to provide where appropriate free specialist advice and representation for persons in connection with the scheme. However, Clause 8(1)(b) enables the Secretary of State to stipulate in the scheme that other services are to be provided to help the parties to reach an agreement to settle. As I said, it is envisaged that such services may include mediation. The Government have made clear our commitment to the use of mediation and alternative dispute resolution. There is therefore existing provision for specialist services to be provided, which covers a wide range of possible activities. Clause 9(1) also places a duty on the Secretary of State to arrange to such extent as he considers necessary for the provision of assistance to individuals seeking or intending to seek redress under the scheme. Clause 9(1) specifically provides that that assistance may take the form of representation. The intention is that patients and appropriate representatives whose cases are being considered under the scheme will be able to access support at any time during the process from Patient Advice and Liaison Services and Independent Complaints Advocacy Service-type arrangements. It is intended that those arrangements will resemble those currently in place to support patients through the NHS complaints process. There is also wide discretion for the Secretary of State to make such other arrangements as he thinks fit for the provision of assistance to individuals in connection with cases which are the subject of proceedings under a scheme. The Secretary of State may fund the provision of the assistance provided under Clause 9(3), and the Secretary of State is required to have regard to the principle that arrangements should so far as practicable be independent by reason of Clause 9(4). Amendment No. 45, coupled with Amendment No. 47, would require the scheme to make such provision as the Secretary of State thinks fit for the provision of legal advice without charge, while providing that services designed to help to reach agreements to settle may be provided. We certainly intend that, under the scheme, independent legal advice on an offer of settlement will be available to all patients and other people eligible under the scheme to enable them to have the offer of redress independently evaluated by a solicitor without charge to them. It is intended that the scheme will provide for free legal advice to be given to the patient for the purpose of assessing whether the offer is reasonable and equivalent to what they would have received through the courts. It is the Government’s firm intention that such advice will be provided, but I am willing to give further consideration to making that clear in the Bill.