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5 Jun 2006 : Column 30

My hon. Friend the Member for Stafford (Mr. Kidney) raised the question whether the scheme is confined to hospital services. Originally, that was our intention, but we listened carefully to the debate in another place and the Bill, as presented in this House, will enable the scheme to be extended through secondary legislation to services over and above hospital services. For instance, services that fall into the grey area between primary and secondary care can be brought within the scope of the scheme. That is particularly important as changing medical practice and technology allow more of what we think of as hospital care to be delivered in the community.

I referred to discussions in another place. One significant change was made there that we cannot endorse. We intend to try to delete clause 12 in Committee. The Bill as originally published provided for a coherent redress scheme focusing on the speedy resolution of cases after full investigation by scheme members at local level, giving full redress to patients through a single-stage scheme, and encouraging and facilitating local learning in hospitals from mistakes that had occurred.

What I do not like about the amendments made in the other place is their creation of a two-stage scheme involving two administrative bodies, something that we believe will prove too costly and bureaucratic. It allows investigators to act independently of a hospital, which will work against the aim of encouraging local learning and a more open culture. The Healthcare Commission will be charged with supervising the work of the investigators. The commission believes that that would be inappropriate and would not sit well with its current expertise and role.

Mr. Andrew Lansley (South Cambridgeshire) (Con): The Secretary of State seems to have skipped the point of principle involved in the amendments and concentrated on detail. The point of principle is that patients who make a complaint or, indeed, a claim against an NHS trust expect and need an independent investigation. Is the Secretary of State saying that the amendments are wrong because investigations should not be independent? It seems to us an essential point of principle that they should be.

Ms Hewitt: That is precisely where we differ. In the original Bill we provided for a single scheme allowing a hospital trust to identify untoward incidents that might well involve clinical negligence, as well as dealing with complaints made to it directly by patients or their families. The trust would investigate and ascertain the facts and, with the patient’s consent, would refer the case to the scheme authority, the NHS Litigation Authority, to establish liability and an appropriate level of compensation. The patient would, however, have access to independent legal advice and, in some cases, to independent medical advice as well, because independent medical advice might well be needed to establish the full facts.

Because the scheme originally proposed does not replace or deny a patient’s right to go to court, we believe that it is proper and sensible to stick to it. We think that there should be an integrated investigation system and a single authority, the NHS Litigation
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Authority, overseeing the scheme, rather than the two-part process established in the other place.

Mr. Lansley: Does the Secretary of State realise that a patient to whom injury may have been done will expect not just an independent investigation, but an investigation that is not conducted in circumstances involving a clear conflict of interest between establishing the facts and the degree of liability and the amount of compensation to be paid? The Government’s scheme allows such a conflict, which will drive patients to the point of pursuing claims through litigation rather than using the fact-finding mechanism introduced by their lordships to seek redress from trusts.

Ms Hewitt: Our scheme is entirely designed to respond to what patients tell us they need: much faster investigation of complaints, much faster establishment of what went wrong, and real learning of lessons. I am sure that the hon. Gentleman has heard from his constituents something that I hear regularly: “What I want is for lessons to be learned from what happened to me, so that someone in the same position does not suffer in the same way.”

Those people want compensation to be paid, where appropriate. By having a single scheme under the aegis of the NHS Litigation Authority, we believe that we can most effectively respond to the wishes of patients and—this is part of what patients rightly want—ensure that there is an open culture and a culture of learning in NHS and other hospitals.

Sandra Gidley (Romsey) (LD): I think that we would all agree with those aims, but the Secretary of State has not explained what the problem is with the scrutiny being independent, so that it has greater authority in the eyes of the patient. As has been explained, we should be focusing on the patient.

Ms Hewitt: The problem—I was just starting to make the point—is that the scheme would be more complex and more cumbersome if we had completely independent investigators and we had two separate organisations, with the Healthcare Commission overseeing the work of the investigators and maintaining the register of independent investigators. We were told in another place that those supporting the amendments had in mind the coroners model. For anyone who has dealt with constituents who have been through a difficult inquest, that is not a particularly happy model. We would have the NHS Litigation Authority looking at liability and the appropriate level of damages, and no single body would be responsible for oversight of the operation of the redress scheme as a whole. As I said a moment ago, the Healthcare Commission—we consulted about that possible new role—is very clear that neither the validation and accreditation of staff nor the oversight of local investigators would fit sensibly with its current remit. Nor does it believe that it would have the expertise to undertake those roles.

A further and not negligible point is that the potential cost of establishing a completely separate set of independent investigators could amount, depending
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on how many complaints were brought, to another £40 million or so a year. I do not believe that the benefits that have been claimed for the independent investigators would be realised. They would not justify those additional costs.

Mr. Vara: This is an issue of credibility. I do not agree with all the arguments that the Secretary of State has advanced but, even if they were to be the case, is she suggesting that there should be a system that is not credible, as opposed to having an independent system that is credible? She seems to be veering towards a not credible situation.

Ms Hewitt: I do not accept the Opposition’s charge that the scheme that we proposed would not be credible. Indeed, the principle of the Bill, the way in which we intend to proceed and the recommendations of the chief medical officer have been welcomed by a number of patients organisations and others involved in these matters. We have, of course, put in place additional safeguards to ensure that the scheme works in the way in which we intend and believe that it will. We want the Healthcare Commission to have a specific role providing training to the hospital trusts and the scheme members on the way in which the redress scheme will operate. We will ensure that the Healthcare Commission’s annual review of the provision of health care by NHS bodies will consider how effectively each of those hospital trusts is operating the redress scheme. In other words, there will be a new standard relating to redress and the Healthcare Commission will review the operation of the scheme against the new criteria.

Rob Marris (Wolverhampton, South-West) (Lab): I think that a simple scheme is a good idea, particularly when there is still access to the courts, but clause 8(3) refers, in shorthand, to a list of legal people who could provide advice upon an offer. That list is to be prepared by “a specified person”. Can my right hon. Friend assure me that that specified person will be totally independent of the Department of Health? For example, it may be the Law Society of England and Wales, of which I am a member and which has a panel of clinical negligence experts.

Ms Hewitt: I can certainly give my hon. Friend that assurance. In fact, we envisage that the Legal Services Commission, which holds its own list of appropriate clinical negligence lawyers for legal aid purposes, will fulfil that function.

In addition to the role of the Healthcare Commission, clause 15 enables the independent health service ombudsman to investigate complaints about any maladministration of the redress scheme. Ann Abraham, the ombudsman, has welcomed the fact that the scheme’s operation will fall clearly within her jurisdiction. She believes that the fact that an independent review of complaints about the scheme will be available will give reassurance to those using the scheme, to complainants and to the NHS bodies involved.

May I revert to a point made earlier by the hon. Member for Buckingham (John Bercow), who has since left the Chamber? I should like to correct an answer
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that I gave about the negative procedure. The first regulation establishing the scheme under the Bill will, in fact, be subject to the affirmative procedure. I hope that that will reassure the hon. Gentleman, and I shall make a point of drawing it to his attention.

There were disagreements on clause 12 in the other place. Clearly, they will follow us into Committee as well as into this debate. Despite those disagreements, I believe that the Bill has been improved by more than 10 hours of discussion in another place. Following those debates, we have already made other amendments to the Bill as originally published.

In clause 3, we put the offer of an apology into the Bill and we prevent caps on individual heads of damage—for instance, loss of earnings. That makes it much clearer that payments received under the redress scheme will be in line with those made through the courts.

We have strengthened clause 8 to provide that legal advice must be available on the offer of redress and a settlement agreement.

Steve Webb: The Secretary of State has twice referred to some free legal advice being available. Will she confirm that it is extremely limited in scope? It comes at the end of the procedure, not at the start when it would be most useful. There will not be enough time for a lawyer to go through the whole detail of the case and appraise the adequacy of an assessment. The lawyer will come in at the end, have a glance and have little time to do much more. Would not legal advice of the sort the Secretary of State talks about be more useful to people throughout the process rather than only at the end?

Ms Hewitt: It lies absolutely at the heart of the redress scheme that we will be able to give quicker responses and better compensation to patients, rather than paying greater fees to lawyers. I am quite certain that lawyers will argue, as some outside the House have already, that much more legal advice should be made available all the way through the process. If we do that, however, we might as well stick with the existing situation in which people seek legal advice and go to court. Given that the redress scheme does not rule out the possibility of court action but will in many cases, I hope, replace it, it is right that the independent legal advice should come at the end of the process and that, in return for a fixed fee, an independent, properly qualified lawyer will be able to look at what happened, the medical evidence and what is proposed by way of compensation and apology. No doubt, though, that is a point to which we shall return later in this debate and in Committee.

Clause 8 also allows for a jointly instructed medical expert to be engaged at any point throughout the redress scheme, where both the patient and the trust feel that that would be helpful.

Rob Marris: May I caution my right hon. Friend? As one who did personal injury cases for many years before entering this place—indeed, I think that I am still on the Law Society’s personal injury panel—I know that in many circumstances it is very difficult for a lawyer to give advice on the adequacy of an offer of
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quantum unless that lawyer knows how strong the case is on liability. If an offer was made at, say, half of what full liability would command, but the liability case for the individual would be weak were the matter to go to court, the lawyer might advise someone to accept a half offer. When the Secretary of State considers the scheme and the regulations, I would caution her that the lawyer will need to be able to look to some extent at liability before he or she can advise adequately on quantum, unless the lawyer wants to get sued.

Ms Hewitt: My hon. Friend has a great deal of valuable experience in this matter, but his point seems to reinforce the case for independent legal advice to be available at the end of the process, where, of course, the lawyer can look not only at the details of what happened and any independent medical assessment that has been made, but at the assessment by the NHS Litigation Authority about liability, as well as the level of damages.

Mr. Siôn Simon (Birmingham, Erdington) (Lab): Is there not some confusion? The Secretary of State is explaining why, in her view, the advice can only come at the end, while admitting that the Government amendments in the Lords to clauses 6 and 8 appear to suggest that there is scope for giving advice throughout the process and for using jointly instructed experts. My right hon. Friend the Member for Liverpool, Wavertree (Jane Kennedy) certainly gave the impression in her letter to the Constitutional Affairs Committee that the Government would look sympathetically on that kind of reading of those amendments in the secondary legislation. I am a bit confused about what message the Secretary of State is trying to give to us.

Ms Hewitt: As originally published, the Bill established quite clearly that legal advice could be available. We have strengthened that to ensure that legal advice must be available on the offer of redress and the settlement agreement. So that will come at the end of the process and enable the patient to make an informed judgment about whether to accept the offer or to reject it and pursue a court case instead. However, as a result of debate in another place, clause 8 will allow the patient and the trust together to instruct an independent medical expert, during the investigation of the incident or the complaint, to ensure that there is a full and agreed diagnosis of what has gone wrong.

We have also introduced an amendment to clause 10 to enable the scheme to require the hospitals and trusts that are members of the scheme to prepare and publish an annual report about the cases that they have dealt with under the redress scheme and the lessons learned from them. Clause 14 will provide the power to ensure that wrongly directed complaints under the scheme are redirected to the appropriate body.

Ms Gisela Stuart (Birmingham, Edgbaston) (Lab): Could the Secretary of State say something about whether time limits will be imposed either by the Bill or by subsequent regulations within which the trust and all the other parties in the NHS must respond to complaints? One of the big problems at the moment is that they simply do not respond in what seems to be a reasonable time.

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Ms Hewitt: My hon. Friend makes a very important point. Like her, I have dealt with constituents who have been intensely frustrated by the length of time taken to get the facts acknowledged and a proper apology offered. I am rather sympathetic to the point that she makes, although we have not yet considered the possibility of trying to impose time limits at different stages of complaints. Of course, such time limits would depend somewhat on the complexity of the matter that was being investigated, but I am sympathetic to the principle, and that is a point to which we should return not only in Committee, but particularly when we consult on the detailed orders that will establish the scheme.

Clearly, there will be lively debates, not only this afternoon but in Committee, about some aspects of the redress scheme—in particular, the nature of the investigation that should take place—but I believe that, overall, not only in the House but across the country, there is broad support for the principles behind the Bill, and I commend it to the House.

4.18 pm

Mr. Andrew Lansley (South Cambridgeshire) (Con): On behalf of the Conservative party, I welcome the Bill, particularly in the form in which it has come to us from another place. The Secretary of State is quite right to say that, every day, tens of thousands of patients are treated in our hospitals. They are grateful to NHS staff for the care and attention that they give, and successful treatment is provided to the highest standards in the overwhelming majority of cases.

The Secretary of State will also be aware that, as in other health care systems across the world, a small fraction of treatments give rise to adverse events, and a tiny fraction of those adverse events give rise to injury. We need to pay very careful attention to those cases—not least, as she says, to learn the lessons and constantly to improve the quality of care. I am sure that she and the Minister of State, Department of Health, the hon. Member for Leigh (Andy Burnham), who has taken up ministerial responsibility for patient safety and quality, will pay very close attention to the progress of the National Patient Safety Agency’s reporting scheme, which, like so many other schemes, is running late. I am sure that it will speed up under the Minister’s whip.

We cannot underestimate the importance of these matters, because for patients who are affected and for those who suffer injury, such events can be very serious indeed. All of us as MPs will have had such cases in our constituencies; I have certainly had a number. Indeed, the Minister of State, Department of Health, the hon. Member for Doncaster, Central (Ms Winterton) will recall our debates on the Human Tissue Bill, and the fact that that legislation itself gave rise to quite a number of cases—certainly in my constituency—of constituents feeling very strongly that the way in which the NHS dealt with them portrayed precisely some of the unfortunate issues with which we are now trying to get to grips. The truth of what had happened was not acknowledged and the facts were not made available—in some cases for many years. Even when the facts were transparent, for reasons of not admitting liability, they did not give rise to an apology or a decent explanation, or any intention to provide substantial
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redress. As it happened, my constituents were not seeking financial compensation; they were driven to the courts by the failure of the NHS to accept liability and responsibility, and to provide proper explanations and an apology. That is principally what they were looking for.

We should start by recognising the fact that, strictly speaking, this legislation is not required for the NHS to provide the facts, an explanation or an apology. All those things can happen now, and should happen now. They should not happen only as a result of this Bill. This legislation is not an alternative to litigation; it should provide a basis in difficult cases, where the facts are not easily found and where fault is not easily established, for a much more patient-friendly way to proceed.

Michael Fabricant (Lichfield) (Con): My hon. Friend talked about examples that he has encountered in his constituency as a Member of Parliament. Does he agree that sometimes the saddest cases are those of a husband or wife complaining to him about the death of a spouse in hospital? Even if the hospital is not at fault, would not an independent inquiry conducted into the hospital have more resonance with the complainant than the hospital saying, “It is not we who are to blame”?

Mr. Lansley: My hon. Friend is quite right. I am sure that he, like me, has had constituents coming to him to talk about a relative—a husband or wife perhaps—who had died in hospital, and about the fact that they knew that things had gone wrong. Such events may or may not give rise to a claim for clinical negligence. We are of course dealing in the Bill with something that concerns an issue in tort—an injury resulting from that, which can be claimed for through a court. Such people have often said to me—and, I am sure, to my hon. Friend—that they are looking for a recognition of the truth of what happened and a reassurance that it will not happen again.

People would often take tremendous comfort from knowing that an event would not happen again—but I am afraid that people are not confident about that. I know from personal experience that the patient advice and liaison services in the hospitals in my constituency—I have two large hospitals there—go to enormous lengths to try to establish the facts of what happened. I have been very impressed on many occasions by the detail that the service has gone into. However, that does not mean that my constituents are satisfied about the independence and veracity of what is said. A degree of independence is required.

The Secretary of State talked about independent medical experts, but patients are looking for an investigation into a matter that is serious and has resulted in their injury, and about which they might otherwise go to court. They want that independence of investigation, because it gives them the confidence to be able to reach a settlement or to accept an explanation, an apology and some redress from the NHS, without feeling that they have to have their day in court.

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