NHS Redress Bill [HL]

I am extremely grateful that we have managed to flush out the noble Baroness on the subject of her alternative proposition to the NHS Litigation Authority. It took a little time, but I am pleased to hear her deploying her arguments. As someone who spent 18 months to two years in my previous ministerial job halving the number of arm’s-length bodies, it is not our intention to set up a new arm’s-length body. We do not believe that the NHS needs another such body to help it along its way. We are talking about bodies which already exist. The Bill reflects our policy intention that the role of the scheme authority should be undertaken by the NHS Litigation Authority, which is itself a special health authority. We believe that it has the resources, expertise, experience and skill mix to be in the best position to oversee the delivery of a redress scheme. It has the system set up to administer claims for clinical negligence against NHS bodies, and has an existing relationship—that is very important—with every trust in England through its work on the clinical negligence scheme for trusts. It is because of this relationship that the NHSLA is in a strong position to act as scheme authority and to advise NHS trusts in the handling of these cases. It is important that there is a body of that kind of standing to provide guidance, as experience of the scheme develops, to NHS and other trusts and to other providers. On effective resolution, the NHS encourages trusts to manage clinical and non-clinical risk. As I said, the Centre for Effective Dispute Resolution held an awards ceremony last year to recognise organisations that were actively raising the profile and practice of alternative dispute resolution. The NHS Litigation Authority won the award for excellence in alternative disputes resolution, and was named as the top mediator in the public sector. So it has a track record not only in settling claims in court but in promoting mediation, which I think we all agree is, or could be, an important part of the new NHS redress scheme. That is why we think that it is well able to look after the interests of patients. We believe that it has the authority to take that work forward. It is worth reminding the Committee, because there has been concern about its independence, that the NHS Litigation Authority, apart from having the skills and competencies that I have already described, is composed largely of lawyers. I know how well loved lawyers are, as the noble Earl, Lord Howe, declared this afternoon. Those lawyers have to operate within the professional codes of conduct of their professional bodies. That gives a certain level of reassurance about their ability to act independently as well. The noble Baroness, Lady Neuberger, has, as I have said, declared her hand and gone into bat for the body which will oversee the scheme, the Commission for Healthcare Audit and Inspection—the Healthcare Commission, as we know it—and she suggests that to deal with the conflict of interest, which I shall turn to in a moment, we should take away its complaints function. We gave it that function in the 2003 Act, and it started running it only in July 2004. It seems a bit tough to take it away now, when it has gone through the process of setting up, in effect, an appellate function in relation to NHS complaints. We have—and I need to put this onto the record again—talked to the Healthcare Commission about that proposal, and it considers that it would be a conflict of interest for it to take on the role of the redress scheme authority because of its direct and, as I said, appellate role in handling patient complaints. It is the second-tier authority. We shall debate this subject tomorrow in an Oral Question tabled by the noble Baroness, Lady Neuberger. It does refer some cases back, that is true. But there are grounds for that which we will be able to explore tomorrow, and I do not want to anticipate that discussion. The Healthcare Commission considers that the redress scheme authority must be external to the NHS complaints system, and I have to say that we share its view on that. It also feels that it has no expertise in determining legal liability or quantum, and that developing these skills would duplicate the NHS Litigation Authority’s work. We are all keen not to develop bureaucracies unnecessarily, as all they do is deflect resources unnecessarily away from patient care. Here we would be doing the very thing we say that we are opposed to, which is to duplicate the roles of the NHS Litigation Authority within the Healthcare Commission in legal expertise. That is simply inappropriate. It is also worth bearing in mind that in Clause 14 the Bill provides for the establishment of a redress scheme complaints procedure for the handling of complaints about maladministration of the redress scheme. So, if a patient has concerns about the investigation of his case by the scheme member, it is intended that he will be able to make a complaint about maladministration to the scheme authority. Clause 15 is designed to enable the Health Service Commissioner for England to investigate complaints from patients of maladministration, including maladministration by scheme members in relation to their functions under the scheme, or in connection with the settlement agreement entered into under the scheme, or in relation to the redress scheme’s own complaint procedure. So, there is another area of independent reference in these arrangements. I think that we should stick with the NHS Litigation Authority. I have heard no case being made that provides a credible alternative to the NHS Litigation Authority. I am happy to discuss this further with the Healthcare Commission. I do not expect it to change its position and I do not expect us to be convinced that it is the right body to take on this role as the redress scheme’s authority, given the other complaints procedure functions given to it so very recently by Parliament.