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Secondly, we need an open procedure. Findings of fact should be robust and capable of use apart from the redress scheme, which means that the proceedings
leading up to the offer should be either without prejudice or privileged. An investigative process can hardly be described as transparent if its findings are not open, which is a consequence of the Government’s proposal to mix up fact finding with fault finding. The Government are treating facts disclosed during an investigation as if those facts were part of a fault-finding process, in which case their disclosure would be an admission of liability, whereas disclosing the facts is an essential part of the process of winning the patient’s confidence in the redress scheme. If an offer is rejected, the findings of the investigation cannot be used for any compensation claim outside the redress scheme under the Government’s proposals. Our proposal would change that state of affairs, and rightly so. I will not detain the House by explaining our proposal in detail, but it follows the precedent set out in the Inquiries Act 2005.
Thirdly, we want the scheme to reflect patients’ priorities. When something goes wrong, patients want an explanation and an assurance that lessons have been learned, and an open and independent fact-finding investigation reflects that priority. Compensation does not necessarily rank highly in patients’ expectation of the role of a redress scheme, but the Government scheme is geared to compensation and does not allow for the possibility that establishing facts and learning lessons is sufficient in itself.
When compensation is required, we want it to be fair. Our proposal provides a range of options: patients can accept an offer; they can negotiate or mediate a settlement; they can enter a Resolve-style scheme; and, as must always be the case, the courts are available as a last resort. Different cases may require different procedures, and choice and flexibility should be available for patients. The fact-finding investigation that we propose would provide patients with an understanding of the basis of any claim, and a Mackenzie friend would be available to provide support and guidance.
As I have said, the health service has always had the power to settle claims without resort to litigation, and it has done so on innumerable occasions in the past. Early settlement by defendants in suitable cases represents good practice and reduces costs—it is what the health service should be doing anyway. To characterise the Government’s proposed redress scheme as providing an “alternative to litigation” is misleading and something of a gimmick. The same is true of the offer of treatment by the NHS as a consequence of the redress scheme. Remedial treatment which is clinically necessary is an entitlement of patients, and it should not depend on the outcome of any redress scheme.
The Secretary of State has said that the introduction of an independent fact-finding scheme would cost up to £41 million. Frankly, we cannot see how the Government have arrived at that figure. The investigation of cases represents a fixed cost, whether it is conducted under the system currently in the Bill or under the Government’s original proposal. We do not envisage a separate bureaucracy undertaking the investigations, which should be overseen, directed and
conducted by an independent person under the auspices of the Healthcare Commission.
On 28 March 2006, the former Minister of State sought to explain how the figure of £41 million was derived. She said that £41 million was the upper cost estimate and that the lower limit is £14.5 million. She also said that the funds would be for investigating clinical negligence, but that is wrong, because our proposals cover an investigation of the facts, not fault. The cost is not additional, but it is an inevitable cost, because there has to be an investigation whether by the NHS Litigation Authority or by independent investigators.
The Government’s estimate of the number of cases involved is between 2,200 and 19,000—a tenfold range. Again, the Government’s number crunching is fanciful.
Mr. Graham Stuart (Beverley and Holderness) (Con): Does my hon. Friend agree that if independence is instilled in the fact-finding part of this process, people will be less likely to seek financial compensation when what they most seek is an apology and a proper finding of the facts, and that that will save the NHS money, as well as giving confidence to patients who have been wronged by the system?
Mr. Lansley: Yes, that is right. I think that we will find, in many cases, that a more open scheme which is perceived to be independent will forestall litigation to a greater extent than it gives rise to it. The Government anticipate that there will be an increase in the number of claims. Quite a number of claims may well go through the NHS redress scheme, but we should not treat that as a fault in the scheme. We want to ensure that people who currently may not have access to compensation for clinical negligence should, in some cases, have such access, but we do not want large numbers of people to pursue litigation. My hon. Friend is right to say that the lack of independence in the Government’s proposals will cause many people to feel that they want their day in court. The only way that they will get the independent scrutiny and judgment for which they are looking will be to go to court. I am sure that we want to avoid that happening.
I am afraid that the Government’s figures have been wrong before. The Constitutional Affairs Committee was pretty sceptical about the Government in its report, which says in paragraph 94:
“It is surprising that the Department of Health has brought forward an ambitious Redress Scheme, without setting out in detail how it will be run...We were informed that contact had not been made, either with lawyers or medical experts, about whether they would work for fixed fees and to the timetables envisaged. These lapses appear to threaten the viability and effectiveness of the scheme.”
It is curious that the Government appeared to be completely unaware of, or were speculating about, the cost of their own scheme, yet absolutely precise, to the nearest £1 million, about the cost of an alternative. As the Committee made clear, there is little reason to accept the economic forecasts of the Department of Health, which has just been plucking figures out of the air.
Our proposals would put patients, not the health service, at the centre of the redress process. By confining the investigation of a case to fact finding by
an independent process, and separating fault finding, we largely avoid the problems of the Government’s proposals. Patients’ interests are safeguarded by that independence.
We do not pretend that the redress scheme provides an alternative to litigation, as defendants ought to settle cases without resorting to litigation anyway, where possible. We should not underestimate their wish to do that. I well remember constituents who wanted the truth and an apology, but got neither and so went to court. Their cases needed independent investigation. Our proposals reflect such patient expectations and priorities, comply with the principles of natural justice, and are economically prudent and fair in application. They would widen access to justice; they do not rely simply on the legal aid process to ensure access to justice. They would simplify an overcomplicated and confused Government approach. In short, we believe that our proposals would allow patients to have access to a potentially fairer and better result.
No scheme will be perfect when dealing with such a complex subject, but we believe that our proposals—by which I mean the proposals supported by all Opposition Members—are a substantial improvement on the original Bill as presented in another place last October. I therefore commend the Bill to the House.
4.53 pm
Mr. Siôn Simon (Birmingham, Erdington) (Lab): I start by welcoming my hon. Friend the Member for Leigh (Andy Burnham) to his relatively new position in the Department of Health. As I was coming here, it occurred to me that when he became the Minister with responsibility for identity cards, ID cards were the screaming adolescent of British politics. A relatively short time later, he leaves them sleeping gently like a baby, if not ticking like a time bomb. We can only hope that he works the same magic on the NHS.
I declare an interest as a trustee of the patients’ charity Action against Medical Accidents, which is generally known as AvMA. For more than 20 years, it has held the mantle for patient safety and justice for people who have been affected by medical accidents in this country. It is fair to say that, without AvMA’s influence, patient safety would not be as high on the agenda as it is today. We might well not be holding the debate or have such a Bill without it. I hope that Ministers agree that AvMA has a constructive, well- informed and coherent input into policy and that there is much to be learned from the patient’s perspective. I know that other hon. Members will have found the AvMA briefing on the Bill as valuable as I have.
AvMA and other patient groups have long argued that there should be a speedier, less stressful way of providing redress in the widest sense for people who have been caused avoidable harm. Legal action remains a vital safety net and will still be necessary in more complex and serious cases, but it is not popular with injured patients and should be a last resort. AvMA has campaigned for years for dovetailing the complaints procedure with a process of awarding compensation, together with full explanations, apologies and assurances that patient safety lessons will
be implemented to make things safer for others. The Bill intends to deliver most of that. The measure is broadly good and hon. Members of all parties want to support it and help the Government make it work. So far, so good.
We have consensus, but there is an opportunity for the Bill to be a universally good news measure. We must ask ourselves why, when there is such consensus on the Bill’s stated aims, we do not have the positive response for which we might have hoped. Why do not AvMA and a broad coalition of patient groups welcome the Bill with unreserved jubilation? Although the aims are widely welcome, there is widespread concern about its implications as drafted.
The joint statement that many hon. Members will have seen is from groups including the Patients Association, Which?, the National Consumer Council, Help the Aged and Mind. Their core points are: there should be an independent means of deciding on merits; advice and assistance should be provided during the scheme; and medical and legal expertise should be available during the process, not simply at the end. There also need to be more robust measures in place to learn lessons and take action to improve patient safety. Those requests do not seem unreasonable given how coherently they sit with the Bill’s stated aims and the Government’s intentions, which no one doubts are sincere.
Many of us would like the reforms to go further, as the hon. Member for South Cambridgeshire (Mr. Lansley) said, in line with the chief medical officer’s recommendations in “Making Amends”, in which he called for a fairer test for eligibility than the Bolam test. That test, with tort at its centre, is not the best on which to base the Bill from our current position. An avoidability test, which would widen the definition of liability, similar to what has been done in, for example, Denmark, is more in tune with a culture that is less about focusing on apportioning individual blame and more about identifying the root causes of errors, which are usually systemic. That test might have provided us not only with the answer to whether redress should be provided but what risk management measures should be put in place—all through one investigation. That can be done.
Perhaps the time is not yet right for such a radical reform, notwithstanding its merits and compatibility with what the Government say that they are trying to do, but perhaps we could revert to it once the initial scheme has bedded down a little. We are told that we will need new legislation for primary care anyway and we are repeatedly told to look forward to endless streams of secondary legislation. I would welcome the Minister’s comments on whether some sort of avoidability test could be the subject of future legislation.
The issue of independence in determining eligibility for redress has been a recurrent theme in our debate today and in all the previous debates on the Bill in the other place and elsewhere. Many stakeholders would have preferred the merits of negligence cases to be investigated by a completely independent organisation. The Government have explained that the intention is to
change the culture of the NHS, so that it learns to recognise its errors, investigate them fully and make fair offers of redress, without the need for the rigour of an independent process. That is a laudable aim, but the way to change the culture is to change the rules. Realistically, one cannot expect the culture to change and the rules to follow. It has to be the other way around.
There are real difficulties with how long change would take and how practical it would be. The problem is that at present we are stuck with the Bolam test, which is designed for the tort approach and assumes specialist legal representation for the claimant and the case being examined with the full rigour and independence of the courts. It would also be used in a scheme in which the NHS, the would-be defendant, sat in judgment on itself, and no specialist legal representation would be available to empower the patient to make their case effectively on what is a very technical legal test.
As Ministers have said, the Bill does provide for some legal advice and some
“assistance for individuals seeking redress under the scheme”.
That advice, however, is available only at the end of the process and would not enable claimants to influence the outcome of the decision on the offer of redress. That is a fundamental point.
The assistance to those seeking redress is described in the guidance as
“PALS or ICAS type arrangements”.
We all have tremendous respect for the people doing worthwhile work in both those services, but neither is appropriate for empowering a patient to influence the outcome of an investigation based on the highly technical, legalistic and tort-based Bolam test. Patient advisory liaison services are not independent, but part of the customer care arrangements in NHS trusts. The Independent Complaints Advocacy Service is designed to help patients navigate the NHS complaints procedure. Neither has the legal and medical expertise available to empower patients to influence such a legalistic test, nor would it be appropriate for them to do so without radically changing the purpose for which they are designed.
This is not a bad Bill. It is definitely moving in the right direction. It is at least possible that the scheme could be run so that it would go a long way to address the main concerns that have been articulated by interested groups such as AvMA. The Government amendments in the Lords allow for the possibility of legal advice being available during, rather than just at the end of, the process. As I said in an intervention, the previous Minister said in her letter to the Constitutional Affairs Committee that stakeholders will be consulted, during consideration of the secondary legislation, about the circumstances in which legal advice could be provided at earlier stages of the scheme. The question is whether such fundamental provisions, which could radically alter the nature of the redress scheme—especially the way in which it is perceived by stakeholders and its capacity to enjoy public confidence—should be left to the vagaries of future consultation on secondary legislation. I suggest
not. We are always being told that our requests will be met by the regulations, but Ministers have already conceded that the Bill should contain such powers. I therefore strongly urge Ministers to consider strengthening the provisions in Committee to make more legal representation available during the process.
It seems to me, and to AvMA, that the most practical way forward would be to draw on the experience of the resolve pilot in England, which has been favourably evaluated, and the speedy resolution pilot in Wales. In those pilots, cases in which liability had not already been admitted and an offer of settlement made—disputed cases, in other words—had their merits determined on the basis of independent medical experts’ reports. The experts had been commissioned jointly by the NHS and a specialist solicitor acting for the patient. There is already evidence that that approach works, and it is much cheaper than litigation. The solicitors are paid a relatively modest success fee only if the case receives a positive report on eligibility from independent experts, and the mechanism would be needed only if the NHS had not already recognised its own negligence and sought to settle the case.
The more successful we become in changing the culture of the NHS and improving its capacity to investigate itself, the less we will need such a safety net. Will the Minister at least confirm that such an approach is consistent with what he has in mind? It is hard to see how justice will be done in the majority of cases, in the short term at least, without such a safety net. It is a fundamental fact that the vast majority of clinical negligence cases that are settled in favour of the claimant have already been investigated and stubbornly defended by the NHS. It is as simple as that. Almost all of them have been resolutely, and wrongly, defended by an NHS that was not equipped to investigate itself.
That culture needs to change, but I say that we should change the rules and let the culture follow. It will take years and a considerable amount of investment to turn the culture around, and to go ahead with an NHS redress scheme that does not provide for an independent means of determining eligibility in contested cases would mean that many deserving cases would not get the redress that they deserve and that the Government and all of us want. It will also lead to a lack of confidence. It is notable that the Government said of the Legal Services Bill, which is before the House at the moment, that the office for legal complaints
“will not delegate the handling of consumer complaints to Approved Regulators as set out in the White Paper. There must be no appearance of professionals judging their own”.
That is right; it is obvious that they should not handle those complaints. Even if they were extremely successful at it—and there is clear evidence that they are not—the appearance would be bound to alienate the vast majority of lay people, who would simply not believe that they were getting justice.
Rob Marris:
I am interested in what my hon. Friend is saying, but I must caution him. He is right to say that we must change the culture, but in my time—my experience goes back five years, because it is five years since I stopped practising as a lawyer—I made hundreds, if not thousands, of negligence claims against the NHS. All too often, the problem was that
the solicitors from outside the health service who were engaged on contracts by the NHS were absolute rubbish. They did not know what they were doing, they were far too slow, they incurred far too many costs on behalf of the NHS, and the cases often folded at the last minute. That culture needs to be changed.
Mr. Simon: Far be it from me to argue with my hon. Friend, with all his years of experience of the incompetence of lawyers.
I genuinely believe that this is a good Bill, and that it represents a sincere effort to bring justice and redress to people who profoundly feel the lack of them. At all times, we all have constituents who suffer from this, and we all know how real it is.
I firmly believe that the Government are serious about doing this. I equally firmly believe that, although the direction of travel is right, we must ensure that this long-awaited initiative enjoys more widespread confidence than it will achieve as drafted. It would be a terrible shame if this opportunity were wasted. We might simply need to be clearer in the Bill about the nature of the provisions that the Government already intend to put in place through secondary legislation. At least some clearer assurances about what is intended would go some way to address the concerns that have been expressed.
I feel sure that if we went the extra mile to address those concerns, we would have a genuinely historic milestone of a Bill in terms of changing how ordinary people experience their interface with the huge, great, terrifying medico-legal establishment. I would be interested to hear what the Minister has to say about those points, but I urge the Government to be flexible in Committee and not to waste the opportunity presented by what could be a very good Bill.
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