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5 Jun 2006 : Column 23

Point of Order

3.36 pm

Michael Fabricant (Lichfield) (Con): On a point of order, Mr. Speaker. You will be aware that Culture, Media and Sport questions overran for about five minutes. I am grateful that you permitted that in order to enable my hon. Friend the Member for East Devon (Mr. Swire) to ask his two questions. However, may I ask your department to conduct an analysis of the tape and consider the length of answers given by the Secretary of State and other Ministers in the Department for Culture, Media and Sport, and, possibly, Ministers in other Departments? The answers seemed extremely long in places, and although I do not argue that their quality was bad or good, the length was excessive.

Mr. Speaker: We are not running to stopwatches yet. All that I will say to the hon. Gentleman is that I would not solely blame Ministers. Sometimes Back Benchers can be a bit too long-winded as well.

5 Jun 2006 : Column 24

Orders of the Day

NHS Redress Bill [Lords]

[Relevant documents: The Third Report of the Constitutional Affairs Committee, Session 2005-06, HC 754, on Compensation Culture, the Fifth Report of the Committee, Session 2005-06, HC 1009, on Compensation Culture: NHS Redress Bill [Lords], and the Government’s response thereto, Cm 6784.]

3.37 pm

The Secretary of State for Health (Ms Patricia Hewitt): I beg to move, That the Bill be now read a Second time.

Every day, NHS doctors, nurses and other dedicated health care professionals look after patients, improve health and well-being and save thousands of peoples’ lives, and we all owe them an enormous debt of gratitude. But sometimes something goes wrong. The Bill deals with the minority of cases in which patients are harmed by their NHS care. All of us know about such cases from our own constituencies. What I find, and I am sure that other hon. Members find, is that people want to know why the treatment went wrong, they want an apology from the hospital or doctor concerned, and they want to be reassured that lessons have been learned so that others will not suffer like them in future. Sometimes, but by no means all of the time, they would like some compensation.

John Bercow (Buckingham) (Con): The Secretary of State will be aware, I am sure, that clauses 1, 5 and 14 all provide for order-making powers. They deal with the power to establish a redress scheme, the duty to consider its application, and the question of complaints. Why, under clause 16, are those order-making powers subject to the negative procedure of the House, rather than to its affirmative counterpart?

Ms Hewitt: If the hon. Gentleman wishes to pursue the matter, we can consider it further, but it is perfectly reasonable for the negative procedure to be used for a Bill in which the principles are clearly set out and the detail will be established by order in secondary legislation. I shall say a little more about the structure of the Bill and some changes that we wish to make to it in Committee.

Keith Vaz (Leicester, East) (Lab): I welcome the Bill and my right hon. Friend’s commitment to improving the system. Does she agree that one way in which we can deal with such matters more quickly is that once a constituent makes a complaint to the health authority, it should give that person as much information as possible? There should be as much information and detail as possible to enable people to decide how they wish to proceed. In far too many cases, even in the authority that we both share, the information is not detailed. Consequently, people feel that they must seek legal advice.

Ms Hewitt: My hon. Friend is right. Trying to get a much faster and more open response to complaints and things that have gone wrong is precisely what the Bill
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tackles. As he suggests, all too often, patients and their families feel that the harm that the original incident did is compounded by delays in investigating the complaint and especially by the legal system that deals with clinical negligence cases. Too often, it is perceived as complicated, slow, unfair and costly in time as well as legal fees. Patients and their families often do not get either the explanation or the apology that they want.

It is also fair to say that the system is equally unsatisfactory from the point of view of NHS staff because clinicians can end up spending far too much time on legal processes which they could be using to care for other patients. Staff morale can be damaged, and because the current arrangements encourage a culture of defensiveness, the NHS loses the opportunity to use the experience and information that patients provide to improve care and clinical practice for the future.

Growing dissatisfaction with all those problems led the chief medical officer for England, Sir Liam Donaldson, to produce his report, “Making Amends” in 2003, which set out a series of recommendations for reforming the way in which the NHS responds to clinical negligence. I am sure that hon. Members of all parties will want to join me in paying tribute to Sir Liam, who is an outstanding champion of patient safety.

The Bill effects Sir Liam’s recommendation to introduce a much simpler and faster NHS redress scheme. It also responds to the recommendations of the health service ombudsman, Ann Abraham, in her report on the NHS complaints procedure, which was published earlier this year.

Mr. David Kidney (Stafford) (Lab): Does the Bill provide for a hospital complaints system? If I read clause 1 (5), (6) and (7) correctly, primary care is excluded and it would take further primary legislation to set up a similar scheme for primary care, where approximately 90 per cent. of health care takes place. That does not make sense.

Ms Hewitt: My hon. Friend’s first point is correct—the scheme was designed to deal with clinical negligence in hospitals. However, as a result of discussions in another place, we have extended it to relate to hospital services that are provided outside the hospital building. The Bill does not—and is not intended to— cover GPs who provide primary care, for the simple reason that most GPs are independent contractors to the NHS. They have their own arrangements through private indemnity insurance for dealing with cases of clinical negligence that arise. That is why the Bill will not cover primary care services under the general medical services contract.

John Bercow: The Secretary of State has already been generous in giving way. For the avoidance of doubt, I stress that the principle that underlies the Bill is sound and reasonable. The right hon. Lady gave me the facial impression that she thought my point was narrow, anorakish or even—perish the thought—tendentious. Let me simply say that it was not. The Leader of the House, who is present, will understand the genesis of the question, because I appeared before the Modernisation Committee last week and made a
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similar point. May I ask the Secretary of State to accept that, often, what is well intentioned goes wrong through poor secondary legislation and that it might help the House if we could have a draft of the order-making powers before the Bill’s final stages, not to undermine but to improve it?

Ms Hewitt: I entirely accept the hon. Gentleman’s good faith and his support for at least the principle of the Bill. It will not be possible to publish draft orders before the completion of its passage, for the simple reason that there needs to be an extended period of formal and informal consultation with patients and other stakeholders about the detail of the redress scheme. The hon. Gentleman may well say that that reinforces the case for the affirmative action procedure to be used, and that is a matter to which I am certainly prepared to give further consideration, although I think that the point that he makes will be best met by the thorough process of consultation on the detail of the orders before we bring them back to the House. We will certainly publish them in draft before we bring them to the House under, as we propose at present, the negative order-making procedure.

The Bill was introduced in the other place and comes to us in an amended form. I will return to that point in a moment, because the significant amendment was the introduction of clause 12, with which we are not happy. I should like first to say a little more about the kind of case that will be covered by the new redress scheme and how the scheme will work.

The Bill sets out the framework that will enable us to establish an NHS redress scheme to deal with clinical negligence claims arising out of NHS hospital treatment, brought by patients, their dependents or, in the worst cases, their estates. It is intended to cover cases where compensation awarded by a court would be no more than £20,000. We have selected that figure because in the majority of such cases the legal costs of bringing the action are wholly disproportionate to the compensation awarded. The new scheme will not extend patients’ rights to compensation—it will not create new rights—but by creating a simpler, faster route to redress, it will significantly improve access to justice for those with rights that already exist under current law.

Mr. Nick Hurd (Ruislip-Northwood) (Con): I understand the point that the Secretary of State makes about the upper limit, but can she tell us what proportion of cases fall within the £20,000 limit?

Ms Hewitt: As I said a moment ago, the majority of clinical negligence cases that are settled involve compensation of less of £20,000. In the past couple of years, in slightly more than half of the cases settled for between £10,000 and £20,000, the legal costs exceeded the damages. For cases settled below £10,000, legal costs exceed compensation in some 90 per cent. of cases. That is not a satisfactory situation.

I shall give an example of a case that was dealt with by the health service ombudsman, because it had not been properly dealt with by the hospital concerned. A woman, Mrs. X, injured her foot in a fall. She went to accident and emergency, where X-rays were taken, and
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she was told that she had sprained her ankle and did not need any treatment. A few weeks later, when she was still in pain, she saw a consultant orthopaedic surgeon who confirmed that the X-ray showed no fracture. The ankle was put in plaster and Mrs. X later had physiotherapy. Still in pain, she went back to the consultant in October 1998 and he arranged an exploratory operation, which took place in February 1999. In July 1999, on reviewing the original X-rays, the consultant surgeon realised that Mrs. X had, in fact, sustained a fracture of the heel bone. She was only told about that in September 1999—18 months after she first attended accident and emergency.

The issue should have been dealt with by the hospital trust involved, but as it was not, the ombudsman’s clinical assessor identified a very obvious extensive fracture of the heel bone that had unfortunately been missed by both the consultant radiologist and consultant surgeon. If the diagnosis had been right at the outset, Mrs. X would have had the right treatment, instead of being subjected to what proved to be an unnecessary and painful operation. Once the ombudsman had intervened in the case, the trust apologised to Mrs. X and paid her damages of about £12,000. Of course, that should have happened on the initiative of the trust, without the need for the ombudsman’s intervention.

The new redress scheme that the Bill will establish will encourage all the hospitals that it covers—NHS trusts, foundation hospitals and independent providers—to take action themselves on cases like that of Mrs. X, to seek them out even if a complaint is not made, to investigate the facts and, where clinical negligence is established, to apologise, to learn the lessons and, where appropriate, to offer compensation.

Mr. Shailesh Vara (North-West Cambridgeshire) (Con): Hospitals and other medical institutions will be encouraged to be proactive in this respect, but will there be quotas or targets for those institutions that could count against them if more actions resulted in payments being made? If that is to be the case, hospitals’ chief executives might not encourage their staff to be proactive in offering such payments.

Ms Hewitt: The hon. Gentleman makes an extremely important point. However, our intention is precisely the opposite. It is to encourage a much more open culture in which doctors and other clinicians feel that they can own up to and learn from their mistakes—as is already best practice—rather than finding themselves in an adversarial situation in which they might deny that anything had gone wrong, possibly at the behest of their lawyers or their insurance company. I shall deal in a moment with the role of the Healthcare Commission, which will have the important responsibility of ensuring that each hospital trust—each scheme member—is applying and operating the scheme in the way that is intended.

Steve Webb (Northavon) (LD): Does the Secretary of State accept that it is important to patients that there should be an element of independence in the process? If they see that the redress scheme is being run by the NHS Litigation Authority, they might be less
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convinced that they are getting genuinely independent scrutiny and a genuinely independent assessment of their compensation.

Ms Hewitt: I shall deal with that point in a few moments, when I talk about the amendments that have been made to the Bill in another place. There will be important independent elements in the scheme, however, including the right to free independent legal advice before any settlement is accepted.

The new scheme will not simply change the way in which complaints like those of Mrs. X are dealt with. Even more importantly, it will also require hospitals to identify all cases of possible negligence, whether or not there has been a complaint from the patient concerned. When a trust considers that a case could fall within the scheme, it will obtain the patient’s permission to refer the case to the scheme authority. The scheme authority, which we intend to be the NHS Litigation Authority, will assess liability and the appropriate level of damages. Where liability exists, the trust will offer an explanation and an apology. Where appropriate, an offer of financial compensation will be made, broadly equivalent to the level of compensation that could be awarded in a successful claim before a court.

Hywel Williams (Caernarfon) (PC): As the Secretary of State knows, a large number of people from Wales are treated in England. Will she explain to the House how cases involving such people will be handled, given that the Welsh Assembly may or may not decide to set up a similar system in Wales?

Ms Hewitt: If a patient from Wales is treated in an English hospital, that hospital would, as a scheme member, be covered by the new redress scheme. If any of the hon. Gentleman’s constituents were in the unhappy position of having such a problem, they should be covered by the new scheme. As he says, it is up to the Welsh Assembly to decide whether it wishes to use the framework provided in the Bill to apply the scheme to NHS hospitals in Wales.

Mr. Alan Beith (Berwick-upon-Tweed) (LD): On a related point, many of my constituents are treated in Scottish hospitals—either Borders general or one of the Edinburgh hospitals—but under the aegis of the English health authority. Am I right in concluding that this scheme would be available to them?

Ms Hewitt: That is correct. The scheme will not apply in Scotland, and obviously it is a matter for the Scottish Parliament whether it wishes to establish equivalent procedures.

Mr. Beith: I was asking the Secretary of State about my constituents in England who are treated in Scottish hospitals. Indeed, they are sent to Scottish hospitals by the English health service because those are the nearest to them. Will they be able to make use of the scheme or will they be denied it?

Ms Hewitt: I thought that was the point that the right hon. Gentleman was making. My answer is that the Bill does not apply to hospitals in Scotland. It will be for the Scottish Parliament to decide whether it wishes to introduce an equivalent scheme. The NHS in
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Scotland is a devolved responsibility; I believe that to be the case. If I am wrong, I will no doubt shortly be corrected. It follows from the logic of the scheme that it applies to the hospital organisations that are members of it—in other words, NHS trusts, foundation trusts and independent providers to the NHS in England.

Mr. Beith: If treatment in a Scottish hospital is commissioned by an English health authority, which in most examples would expect either to be paying the Scottish authority or at least to have some reciprocal arrangement for cases that cross the border, surely the provisions referring to treatment outside the hospital, or indeed outside England, will apply?

Ms Hewitt: I take the right hon. Gentleman’s point that he is talking about treatment commissioned by the English NHS—in other words, a primary care trust in England is responsible for the treatment, even though it is being given in a Scottish hospital.

If criminal negligence is involved, and the patient therefore has a claim that could arise under English law, the scheme will apply. I hope that that is clear. If not, this is a matter that the Minister of State, my hon. Friend the Member for Leigh (Andy Burnham), can return to later in the debate. If necessary, I shall write to the right hon. Gentleman to go through the detail of the application of the scheme where devolved boundaries are crossed.

The new redress scheme will offer patients a simpler and faster alternative to a court case, but it will not—this is an important point—remove a patient’s right to bring legal proceedings. If the patient decides to reject an offer under the scheme, or if no offer of compensation is made, the patient will still be able to pursue the matter through the courts, or, if the patient wishes, to go direct to the courts and not use the redress scheme. However, where the redress scheme is used and where an offer of compensation is made, legal advice will be provided to the patient free of charge in relation to the offer and any settlement under the scheme.

Mr. Philip Hollobone (Kettering) (Con): In making proposals for the redress scheme, what comparisons did the Secretary of State make with other international schemes, and where does she see this scheme in the new international league table? Could we do rather better than she is suggesting?

Ms Hewitt: When the chief medical officer undertook his review for the report to which I referred earlier, he looked at a number of other countries and the variety of schemes—often called, sometimes wrongly, no-fault compensation schemes—that exist, for instance, in Scandinavia, New Zealand and so on; but for a variety of reasons, which he spelled out in that report, he felt, and the Government concur, that it would not be suitable to try to introduce a so-called no-fault compensation scheme, not least because people would end up arguing about what caused the damage, even if they were not arguing about where the fault lay. That is why he recommended a scheme along the lines of that provided for in the Bill. We have accepted that recommendation.

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