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5.11 pm

Sandra Gidley (Romsey) (LD): I, too, am pleased to welcome the Bill in its revised form. I want to support most of, if not all, the remarks made by the Conservative spokesman, the hon. Member for South Cambridgeshire (Mr. Lansley), because we worked jointly in the House of Lords on the Bill and it would be a great shame if the Government did not take note of the changes that were achieved there. Had the Bill arrived in the House of Commons first, however, the welcome would have been rather more muted. While no one can doubt the intention behind it, this is probably one of those classic cases in which the Prime Minister will wish in retrospect he had been more bold.

As has been said, we face a Bill that deals with only one of the 19 recommendations made by Liam Donaldson, so a huge opportunity has been missed. The Bill also deals only with the secondary healthcare sector. Again, we have an ideal opportunity for some joined-up thinking throughout the health service. As it stands, the Bill is welcome, but we seem to be tinkering at the edges.

Mr. Beith: Did my hon. Friend notice that the Secretary of State seemed to exclude the possibility of extension to the primary care sector, whereas the Government’s response to the Constitutional Affairs Committee report indicated that the scheme would be
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evaluated after three years and that, at that stage, the possibility of extending beyond the hospital sector would be considered? There seems to be some confusion in the Department’s thinking on whether the scheme will ever be extended beyond hospitals.

Sandra Gidley: I thank my right hon. Friend for pointing that out. I had not noticed it, and I hope that the Minister can help us in his winding-up speech.

I had a quick look at the Bill to see whether I might have to declare an interest, as I am on the practising register of the Royal Pharmaceutical Society. That does not seem to be the case, but it is worth pointing out at this stage that when I worked in the health service the culture was important. That was alluded to by the hon. Member for Birmingham, Erdington (Mr. Simon). I shall refer to an example of how it can operate.

I worked for a company that decided to have an open, no-blame culture, and there was great encouragement that any error, however small, should be recorded. Those errors were shared throughout the group. As a result, it was common to see one or two errors that were not necessarily life threatening, but that could be prevented. Steps were taken throughout the company to ensure that they did not happen again. Exactly the same thing could happen in the NHS as a result of more information sharing.

The National Patient Safety Agency is trying hard to encourage a culture of no blame and openness, but there are fears that the legislation as drafted might not necessarily further those interests owing to the fact that everything is in-house. The Secretary of State argued the opposite, but it remains to be seen how the system works in practice.

Despite talk of a litigation culture, evidence shows that the number of claims is falling slightly. In 2004-05 there were 5,609, while in 2003-04 there were 6,251. However, it is dangerous to take a year out of context. The figures for those two years are widely cited, but the background reveals a steady increase in the number of claims up to that point.

It should be borne in mind that we live in a society in which there is sometimes a failure to accept human error. Medicine is a complex subject, staff are only human, and mistakes sadly happen. A friend of mine trained as a doctor. On the first day, the trainees were sat down and told that at some stage during their medical careers they would kill someone. If they could not cope with that thought, they should leave there and then. It was not suggested that they would kill anyone intentionally—the Shipmans of this world are, thankfully, rare—but mistakes happen for a number of reasons, such as tiredness, pressure, attempts to deal with enough patients to meet the latest Government target, and even ill-thought-through protocols. Often mistakes are due to a combination of unfortunate events: an error can be compounded by other happenings.

It is important for us to be able to identify what is going wrong. The figures are stark. In 2005, the National Audit Office reported 974,000 incidents and near-misses, which did not include hospital-acquired
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infections. Only a proportion of those cases were due to negligence, and we could argue all day about what the proportion was, but some would say that it could be as high as 25 per cent. The number of claims that have been made suggests that that is the tip of the iceberg.

It is good that patients will have an automatic right to come forward, but the $64,000 question is whether the number will be greater than predicted, and how that would affect the pot of money available. As has been said today, an unwillingness to own up early and instigate remedial action promptly is often a cause of prolonged correspondence with Members of Parliament, patients and hospital authorities. A change in the culture would save much time and effort.

Many Members have identified a major problem with the original Bill: the fact that the NHS Litigation Authority, which is not regarded as independent, will oversee the process. As has been pointed out, that must be done by an independent body if justice is to be not just done but seen to be done. That is the crux of the argument.

The actual procedure, as outlined by the Government, is fair enough. It is important to determine the facts behind a claim, to decide whether an error was indeed made, and to assess the seriousness of such an error. Above all, it is important for the patient, or the patient’s relatives, to be given an explanation as soon as possible, because any delay gives the impression of a cover-up. Finally, it must be established whether the error constitutes a qualifying liability, and a value must be put on any resulting compensation. The problem is that if the NHS is involved at every stage, it will become judge and jury dealing with its own case.

Mr. John Gummer (Suffolk, Coastal) (Con): Does the hon. Lady agree that the real issue is perception? If people perceive that the system is too much in the hands of those whom they see as judge and jury, although we and the Minister may know that they are entirely independent, that will defeat the whole object. We must ensure that, objectively, people perceive the system to be independent.

Sandra Gidley: There are those who say that perception is the only true reality, but I do not think that this is the place for that discussion today. To develop the right hon. Gentleman’s point, one of the results of the in-depth investigation following the Shipman saga is that all the professional bodies now have to have a huge lay component. The logic is that it cannot be right that a profession is seen to oversee itself all the time. Balance must be provided by outsiders who can give another perspective. That argument is related to what is going on here. If there is a mistake and a cover-up, will we be saying further down the track that we must have more independent scrutiny? Clearly, we cannot have a single lay person investigating the health service—that point was made earlier—because they would have to come to terms
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with and try to understand all the procedures, but perhaps there is an argument for considering a mixture of both in any investigative panel that is set up.

Clearly, the fact finding should be independent. Staff and patients need to be sure how the problem arose and what will change as a result of the lessons learned. Again, the point has been well made that that does not need legislation; it should be happening already. The sadness is that, although in many trusts it is happening, in some trusts—I see it because I deal with a number of different hospital trusts—it is much more difficult to get that openness and that willingness to admit that there has been a mistake.

As my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith) has pointed out, legal advice will not be available until quite late in the procedure. Is there not a possibility that a patient will be offered a certain amount of compensation, decide that that is not enough, try to obtain legal advice, but because there is an award, find that the difference is deemed not to be worth funding? Therefore the patient will be stuck between a rock and a hard place. They may have been one of the fortunate few who could access legal services, but their claim will not succeed because of the offer on the table. That needs to be looked at.

I would be grateful if the Minister would clarify the issue around the capping of the amount. I believe that the Secretary of State said earlier that an attempt would be made to ensure that any awards were in line with those in the civil courts. That may be the aim now, but if there are future financial pressures can we be reassured that that aim will remain? Will that be enshrined in legislation? We would seek to avoid a situation where patients think, “I am not sure I can get much compensation. There seems to be a history of people thinking they could get more if they went through the civil courts, so should I go to the ambulance-chaser type of solicitor on a no win, no fee basis and risk that?” That is something that the Bill is trying to avoid. We should ensure when we draft legislation that we avoid that eventuality.

I want to turn to the secondary care aspect. Again, there have been some changes to the Bill in the other place, but there is a move to deliver more care outside hospital and it makes no sense to have an NHS Bill that does not deal with all aspects of the NHS. The Secretary of State said that GPs were not included because they are independent, but they are not the only deliverers of primary care. Not to recognise that fact ignores the many nurses, pharmacists, therapists and others who work in the primary care sector who may not be covered in the way that she described. It would be helpful, then, if the Minister elaborated on the point made by my hon. Friend the Member for Northavon (Steve Webb) about the review of primary care.

Steve Webb: Is not there an inconsistency between the Secretary of State saying that GPs, because they are independent contractors, will not be included, while independent sector treatment centres will fall within the scope of the scheme? If they are independent contractors to the NHS, what is the difference between them and GPs as independent contractors?

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Sandra Gidley: My hon. Friend makes a very good point, which I hope the Minister will clarify. The Bill is clearly well meaning, and we will take pleasure in supporting it in its proper form. I can assure the Secretary of State, however, that we shall work hard on keeping that provision.

How will the scheme be scrutinised? We have had reassurances that the ombudsman will be arbiter, and that all will therefore be well. Unfortunately, this House has seen rather too many examples in recent months of cases in which the Government have frankly ignored the advice of various ombudsmen. That is not reassuring, and it would be useful to know how the scheme will be assessed and what notice will be taken of any future recommendation by the ombudsman.

It is a shame that the Bill does not go much further. It is, unfortunately, a rather half-hearted attempt to do something well meant and in the right direction. We very much hope to improve it in Committee.

5.37 pm

Julie Morgan (Cardiff, North) (Lab): I am glad that the Government are introducing an important Bill that I strongly support, particularly as regards the implications for Wales.

Many of us have dealt with patients, or relatives of patients, whose treatment under the national health service has gone wrong. Those are probably among our saddest cases, and some have gone on for many years. It has been difficult for patients and relatives to be able to move on and to close off on that part of their lives.

The way the system works at the moment militates against openness in the NHS, and the process is very protracted. That means that relatives cannot move on. It is also draining for NHS resources and staff, emotionally speaking. The costs of bringing cases are often disproportionate to the compensation granted. Reform was part of Labour’s manifesto, and I am pleased that it is happening.

I shall speak specifically about the Bill’s effect on Wales. It applies to England only, except for clause 17, which contains a framework power for the Welsh Assembly. The clause has attracted quite a bit of debate, mainly about constitutional issues. It is one of the first examples of the enabling powers given to the Assembly to enable the Assembly to determine its own policy. It is in line with proposals in the White Paper “Better Governance for Wales” and with the general progress of devolution, and I strongly welcome it.

The power conferred by clause 17 on the Welsh Assembly does not contain the limitations found in relation to England. It is not limited to hospital services only, although the Secretary of State has expanded on that point today; nor is it limited only to health professionals or specified bodies. The proposals that the Welsh Assembly comes up with will need to fit into the structure and general direction of the NHS in Wales, which has been going in a slightly different direction from that in England. For example, Wales does not have primary care trusts. Local health boards
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perform the functions of PCTs. There are no foundation hospitals in Wales. There are differences in commissioning arrangements. Specialist services are commissioned by Health Commission Wales. Community health councils have been retained and strengthened and have a duty to provide advocacy services for local people who want to make complaints about the NHS. The system for handling clinical negligence claims in Wales is fundamentally different from that in England. The NHS Litigation Authority is an England-only special health authority. So the whole scene is very different in Wales, and it is important that the proposals that come from Wales fit the particular circumstances of Wales.

My hon. Friend the Member for Birmingham, Erdington (Mr. Simon) referred to the pilot scheme that has taken place in Wales. The Assembly launched a new pilot scheme in February 2005 to deal with clinical negligence claims against NHS trusts in Wales. That scheme covers figures between £5,000 and £15,000 and is called the speedy resolution scheme, which is very different from the traditional litigation process. Its aim is to be consensual, using a single joint expert, to which my hon. Friend has already referred. It uses a fixed timetable and has fixed fees for all legal and medical professionals. There is no court involvement, and there are certain specific conditions for joining the scheme.

We heard some discussion earlier of the length of time that such cases take; the speedy resolution scheme has a fixed timetable of 61 weeks from the date of acceptance to the outcome in the most complex cases, and it anticipated that the majority of cases will be completed much more quickly than that. The scheme also aims to provide an explanation to patients. There will be an independent evaluation of the scheme. The reason why the framework powers in the Bill are so wide is to take account of the current different health arrangements in Wales and the outcome of the pilot scheme. It is important that the Welsh Assembly comes up with no proposal until that scheme has been evaluated and that we can propose a solution in Wales that best fits the Welsh situation. Of course, any scheme that is proposed will operate alongside the current complaints arrangements in Wales.

Clause 17 will allow the Assembly to introduce wider arrangements. The primary care sector—GPs and other primary care practitioners—could be included in the scope of the scheme. The Assembly wants the power to do that laid down now, so that it need not return to Parliament at a later stage, when it has decided on the way it wishes to proceed. Obviously, any proposal to bring primary as well as secondary care into the scheme will involve a lot of consultation, but at least the Assembly could do that.

I wanted to raise the importance of clause 17 for Wales. It will allow the Welsh Assembly to find Welsh solutions to Welsh issues. No decision has yet been made in Wales about how the redress scheme will operate, but I understand that the Assembly wants new legislative powers, rather than just plugging the existing gaps in the process. The scope of clause 17 is wide enough to include primary as well as secondary care and to extend the arrangements beyond what the Assembly does at the moment.

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I very much welcome the Bill. Although only clause 17 will apply to Wales, I am pleased that it will give the power to the Assembly to develop a specific scheme for Wales.

5.34 pm

Mr. Alan Beith (Berwick-upon-Tweed) (LD): I am glad to follow the hon. Member for Cardiff, North (Julie Morgan), who is a member of the Constitutional Affairs Committee, although she was not when it produced its first report on this subject.

Before I come to the Committee’s report, I want to refer to the point about cross-border problems that emerged during the Secretary of State’s speech. I recognise that it is a difficult and complicated matter. I want to be quite clear what the situation is in respect of my constituents who obtain treatment in hospitals in Scotland—the same thing would apply on the English side of the Welsh border—which are usually the nearest hospitals for those living in the Berwick area, whether they use the Borders general hospital or the two or three major hospitals in Edinburgh. Usually the treatment arises because people choose to go to that particular hospital, but with the support of the health authority on the English side of the border. In some cases, the health authority may actively encourage people to make that choice.

I can see that the situation is complicated because the hospital is in Scotland. An issue that would be tort in England would arise under Scots law in Scotland. The circumstances would be different. Am I right in supposing that whether the scheme applies will depend on whether the health authority on the English side can be thought to be responsible in some way for the unsatisfactory outcome? That situation would be rather limiting and a constituent would probably be much better placed taking legal action in Scotland without the benefit of the scheme. The Minister may well reply that the scheme is simply an addition to the legal rights that people have on each side of the border. However, I would not want to create a perverse incentive whereby patients were discouraged from going to an appropriate hospital because of the existence of different schemes on either side of the border.

I am anxious, first, to clarify the situation, and secondly, to ensure that, in particular, the health authority on the English side will not say, “We had better not let patients go to Scottish hospitals because we might be pursued over our aspect of the responsibility under the NHS redress scheme and we might avoid that if the whole thing was dealt with on the English side.” I hope that, in his response, the Minister can give me some initial guidance on that and that, if necessary, the matter will be followed up fairly quickly—before the Bill gets much further—by correspondence clarifying the situation. The slight perversity of the situation is that patients on the Scottish side of the border who come to Berwick for hospital treatment—often because they go to a general practitioner in Berwick anyway—will definitely benefit from the scheme, as I understand it. There is no harm in that, but it indicates the paradoxes and complexities that will arise.

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