NHS Redress Bill [HL]

We are committed to ensuring that patients’ rights are protected. We want to ensure that patients are able to make a genuine, informed choice when presented with options. This clause seeks to do exactly that. Redress is about putting matters right for the patient where mistakes have been made. This has to be focused on the needs of the patient. To do this effectively the scheme has not only to provide for fair and effective redress, but also, importantly, to be seen to be doing so. On a practical level, patients will continue to litigate unless they have confidence that the scheme offers an effective and fair alternative. This clause seeks to provide that guarantee. Clause 8 sets out that a scheme may make provision for free legal advice to be provided in connection with proceedings under the scheme. A scheme could therefore provide for legal advice to be given free of charge to the patient or other person eligible for redress under the scheme, for the purpose of assessing whether or not an offer under the scheme is reasonable and equivalent to what the patient would have received through the courts. That is to say, the legal advice would not be at the beginning but when the actual offer is being discussed. At the beginning it is envisaged that support will be provided by PALS and ICAS or similar bodies. The scheme may also provide that free legal advice has to be supplied by a provider included in a list held by a particular body. To ensure independence, it is envisaged that the scheme might, for example, provide that a body such as the Legal Services Commission will compile and maintain a list of independent providers of legal advice, with whom the scheme authority will have made arrangements for the provision of such advice at a flat rate. If, having consulted an independent solicitor, the patient provides sound evidence that the offer is inappropriate or insufficient, it is envisaged that it will be open to the scheme authority to reconsider the offer in appropriate cases. The Government are committed to a greater use of mediation and other forms of alternative dispute resolutions. Clause 8(1)(b) provides flexibility for the provision of other 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. However, options may include mediation services or the services of a jointly instructed independent medical expert. My noble friend Lord Warner has explained that we are committed to using alternative dispute resolution where it is appropriate to do so. We believe that ADR should be widely available and that its use should be considered in all suitable cases. In Making Amends, the Chief Medical Officer for England recommended that there should be more use of ADR for those cases which are still litigated. We agree with that recommendation. Again, as my noble friend Lord Warner pointed out, the timing of mediation is extremely important. A balance has to be struck between early mediation, useful before positions have become entrenched, and mediation later in the process when both parties have all the facts at their disposal and have had an opportunity to identify what outcome they are seeking. As my noble friend indicated, it is intended that further consultation with stakeholders will be carried out to determine the most appropriate point at which mediation services should be engaged to help reach an agreement to settle for cases under the redress scheme. As the noble Earl pointed out, costs have to be considered. Overall, ADR is certainly not a cheap option or a quick fix. It can be challenging for both the patient and for the clinicians involved. It can prove time-consuming, and we realise that for NHS organisations that are not already successfully using ADR it can sometimes seem like an inefficient option. However, we are genuinely committed to helping patients reach resolution under the NHS redress scheme and we must do all that we can to support them to get the answers they want. Finally, it is important to recognise that ADR is about more than a process or a system. It is about supporting a different approach, one that values the experiences of patients and their relatives and realises that in order to deliver a better quality of care in the future we must take every opportunity to learn from what has happened in the past—indeed, a change of culture. It is part of the broader culture change that the NHS redress scheme will help to deliver. If, in determining the facts of the case, the scheme member or the scheme authority considers that evidence from an independent medical expert is necessary, it is intended that they will seek to ascertain the wishes of the patient to reach agreement on an acceptable person. In other cases, the patient may approach the scheme member or scheme authority about an independent medical opinion. We intend that the final decision will rest with the scheme authority so as not to fund unnecessary expert opinion from the public purse. It would remain open for the patient in all cases to fund and present as evidence an independent expert’s medical opinion where the scheme authority considers it inappropriate. I am sure that there is universal agreement that patients seeking redress under the scheme need to be fully supported to ensure that they get the right outcome for their situation. The clause makes provision to ensure that the offer of a settlement a person receives will be both equitable and comparable to an offer that would be made by a court.