My Lords, I am in the position that my noble friend Lord O’Shaughnessy was in earlier, as much of what needs to be said has been said, but I want to add a few remarks on the two amendments.
I echo what my noble friend Lord O’Shaughnessy said. In the light of the First Do No Harm report, we have to be careful to address ourselves to the issues before us and put in place schemes of redress on the three causes. I am not an expert on those, but when I was Secretary of State for Health I was only too aware, when dealing with the Thalidomide Trust or infected blood payments, for example, that when we reviewed and made payments that were more generous, we were working in what was, in effect, an administrative structure that did not necessarily have coherence or consistency. We were making what we thought were the right decisions at the time, but those who had been harmed all suffered, from their point of view, from two problems. The first was the relative lack of generosity of the payments, which were made to reflect specific needs but were not representative of the overall harm that had been done. Secondly, there was no admission of liability, which is always an issue. Liability matters. Those who are harmed want to see liability determined and accepted.
I am sympathetic to the view that not only should redress schemes be considered for the three causes in the report, but the Government should take the opportunity to think about what a redress scheme might look like more generally. My noble friend Lady Cumberlege and her colleagues looked carefully at a number or international examples. They might well have thought, with some justification, that the French
scheme—I will not attempt its title in French, but it is a national office for indemnity in relation to medical accidents—is an interesting basis on which to examine the issue. We might include not only the redress schemes from previous years but the present schemes that need to be established. This is something that Ministers might want to say in relation to the continuing review into infected blood accidents.
Again, like my noble friend Lord O’Shaughnessy, I do not want to confuse what are related but distinct issues. The schemes relate to what are, in effect, systemic failures. Recommendation 3 of my noble friend Lady Cumberlege’s report appropriately says that the schemes are to provide redress in relation to avoidable harm resulting from systemic failures. There is a question, which is not entirely resolved in the report, about which test should be applied. The Government should look carefully at where liability genuinely lies. Where there is harm as a result of systemic failings, the Government have a responsibility. That is fairly straight- forward. However, that is not the same as assuming that such a scheme should encompass all the many other cases that give rise to most of the clinical negligence claims against the NHS, which result not from systemic failings but from the failings of medical practice in particular circumstances. Those are different and separate. This debate is not the right place to go on about that at length.
I was interested to hear the noble Lord, Lord Hunt of Kings Heath, talk about the NHS Redress Act 2006. The noble Baroness, Lady Thornton, will recall that in 2009 she was not able to bring that Act into force. I was the shadow Secretary of State during the passage of that Act and Secretary of State after 2010. One reason for not bringing it into force, to which my noble friend referred, was the Government’s intention to undertake tort law reform in general and this was a tort-based liability scheme.
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The second reason was that, in Opposition, we argued for the reduction of costs through the establishment of an independent fact-finding phase rather than adversarial engagement where clinical negligence was claimed. The idea was to reduce the cost of expert witnesses and legal fees, which consume—I think that this is probably still true—as much in public expenditure from the NHS Litigation Authority as the compensation payments. It used to be pretty much half. There were reasons why we did not bring the NHS Redress Act into force. I do not share my noble friend Lady Cumberlege’s view that it is a matter of regret that we did not.
The First Do No Harm report did not undertake what one could regard as a systematic analysis of the NHS redress scheme, the NHS Litigation Authority or how we should deal with the thousands of clinical cases of accident, negligence or malpractice. I do not think that those involved would claim to have done that. In my view, it would be quite wrong for us to put into this legislation something that might be held to represent such a scheme. I want to distinguish between those two things. If we come back to this on Report, I hope that we do so—I say this to my noble friends—on the basis of an amendment that is explicit about creating schemes in relation to the Government’s responsibility
for systemic failings, for which the Government take liability. We should not try to reform the whole NHS redress system in the space of a few weeks in the absence of any consultation with the great majority of the people affected and without any systematic consultation with the organisations most responsible.
I look to my noble friend the Minister to say that the Government will consider Amendment 123 and see what they can say in response to it in particular. That is for the Government to take away and continue the process of finding a basis for consultation on policy on the reform of redress. I know that it is nearly 14 years on, but I still think that a reduction in cost in the NHS Litigation Authority’s responsibilities is the main way of proceeding. We can pursue that through non-adversarial fact-finding and arbitration mechanisms to try to reduce the number of occasions on which people go to court to litigate for compensation to be provided.