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6.28 pm

Mr. John Baron (Billericay) (Con): This has been an interesting and wide-ranging debate in which there have been many thoughtful contributions from both sides of the House.

The hon. Member for Birmingham, Erdington (Mr. Simon) talked about the importance of independence within the scheme. That is terribly important, as the scheme must be seen to have credibility with regard to NHS patients. He also reminded us that “Making Amends” wanted to move away from the tort-based culture, yet the Government’s original Bill had tort as its centrepiece. I remind him of a quote in that report. It stated:

Despite that, tort is at the centre of the Bill. That is why we proposed amendments in another place and, thankfully, won the day. Our proposals would separate fact finding from fault finding. That is an essential first step.

The hon. Member for Romsey (Sandra Gidley) acknowledged the importance of independence and made the valid point that perception is vital. The Bill and the scheme must be seen to be credible. It is no good simply doing right and claiming that the scheme is independent—it must also be seen to be independent by NHS patients who use it. The hon. Lady made
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several telling points, including emphasising that the redress scheme must be patient centred and tackle patients’ needs. Sometimes in our discussions we have spoken a little too much about the needs of the NHS, which are not necessarily always those of the patient.

The hon. Member for Cardiff, North (Julie Morgan), who is not in her place, reminded us that the scheme does not apply to Wales and wisely suggested that perhaps the Welsh Assembly should wait to see how the scheme beds down here before taking it on. Clause 17 rightly stresses that Welsh solutions are needed for Welsh issues and reminds the Assembly that it has the power to effect that.

The right hon. Member for Berwick-upon-Tweed (Mr. Beith) wanted clarification about whether patients who cross the border into Scotland would have access to the redress scheme. My understanding—for what it is worth—is that they would not. Doubtless the Minister will clarify that at least in Committee, but hopefully in his winding-up speech.

The hon. Member for Crawley (Laura Moffatt) wrongly suggested that the original Bill was somehow simpler than our proposals. She forgets that we propose to simplify the scheme by limiting it to a role of fact finding. That is much simpler than trying to determine liability as well. Our scheme is therefore simpler. I shall revert to that point when I consider the Government’s suggestion that our proposals mean increased costs.

My hon. Friend the Member for Broxbourne (Mr. Walker) reminded us of how patients must feel in taking on the NHS. He rightly said that the conflict is perceived as one of David and Goliath—an apt description. He also reminded us of what patient priorities often are. Patients want an apology and an explanation, and they want to know what went wrong. Hon. Members of all parties made that point.

Mr. Walker: Does my hon. Friend agree that the lack of that apology forces many people into taking legal action to get financial recompense because that is the only way in which they feel that their voice is being heard?

Mr. Baron: Yes, I agree. In too many cases, the lack of an explanation—and an apology, when appropriate—forces patients to seek alternative redress and prolongs the length of the process, at great cost to the NHS. That money could be better spent on patient care.

The hon. Member for Worsley (Barbara Keeley) mentioned a sorry constituency case. I am sure that the House extends its concern and sympathy to the Collins family. The case reminded us that reform is desperately needed—we all agree with that. The issue is how best to ensure that the redress scheme is effective and has patients’ confidence.

My hon. Friend the Member for Ruislip-Northwood (Mr. Hurd) reminded us that, in addition to an explanation and an apology when appropriate, NHS patients also want to ensure that lessons are learned for the benefit of others. That is important. He mentioned the need for transparency and the cost of the current system to the NHS—more than £500 million. He was right to argue for the need for independence.

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The Government know that Conservative Members support their attempts to deal with the problem of clinical negligence litigation. As we have heard, the current process is complex, costly and too lengthy. Most clinical negligence cases are legal aid funded and most fail, at great expense to the NHS, the taxpayer and, ultimately, the patient. However, most people do not qualify for legal aid. They therefore seek a credible and independent alternative to going to court. The NHS redress scheme could offer such an alternative.

However, the fundamental dividing line between us and the Government is that, whereas the Secretary of State today envisaged a scheme that would make the NHS effectively judge and jury in its own case, we firmly believe that investigating the facts of what went wrong should be separated from the process of the NHS assessing its liability and making an offer. Moreover, that investigative process must be independent, like the coroner’s court and what happens under the provisions of the Inquiries Act 2005.

The Government have pledged to reverse our key amendments, which were won in another place by a cross-party coalition and with the help of the Liberal Democrats. It falls to the Minister to explain exactly why he will ask 300 or so of his colleagues to troop through the Lobby to remove an essential feature of independence from the new scheme, which has the support of the Law Society and Action against Medical Accidents.

Mr. Graham Stuart: Does my hon. Friend agree that the Government have diagnosed the problem correctly, put enormous effort into tackling it and yet, by failing to put independence at the heart of the new system, could pluck defeat from the jaws of victory? The Minister may not concede the point in his winding-up speech but I hope that the Government will do so in Committee and join Labour Members, including the hon. Member for Birmingham, Erdington (Mr. Simon), and Conservative Members who spoke strongly in favour of the need for independence. We could have true independence and the Bill could be a genuine legacy of the Government if only they agreed to the proposal.

Mr. Baron: My hon. Friend makes a valuable point, which several hon. Members have raised. If we do not put independence at the core of the Bill, no matter how strongly the Government may argue that it is effective and fair, many NHS patients will not perceive it as such. If it does not have the confidence of NHS patients, we are engaged in an uphill struggle to try to ensure that patients receive the redress that they are due and that they are happy with the process. Otherwise, it will solve no problems.

Mr. Simon: It is important to make it clear that, although everything hon. Members said about perception is true, that is only half the point. The scheme needs to be independent for reasons of efficacy as well as perception. It should be independent because only independence will produce the right outcomes and do the job properly. It needs not only to be seen to be independent but to be independent.

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Mr. Baron: I agree. Independence should be at the Bill’s core. We attempted to do that with the amendments that were carried in another place. We shall now thrash out the arguments in Committee about how best to ensure that independence remains a feature of the Bill.

The bottom line is that we agree with the Bill’s overall objectives, which are to create a scheme for efficient and speedy redress for NHS patients who have suffered harm through negligence while receiving treatment. We all agree that reform is desperately needed. A typical claim can take several years. The process is too long and costly and largely fuelled by legal aid. In short, it is a mess and does not reflect patient priorities. As we have heard from hon. Members of all parties, the aggrieved patient often wants an explanation, an apology when due, and the reassurance that those who committed the clinical error acknowledge their wrong and that lessons are learned for the benefit of other patients. However, that does not often happen.

The system is widely viewed as unfair. Most clinical negligence cases are funded by legal aid, yet most people are not eligible for legal aid. Many of the vast majority of those who cannot access legal aid are put off from pursuing a negligence claim because of the cost and complexity involved, regardless of whether the grievance is legitimate.

In its original form, the Bill was fundamentally flawed as it did not provide what is needed—an open, independent fact-finding investigation that reflects the interests and priorities of patients. That is why we combined forces with the Liberal Democrats and Cross Benchers in the other place to force amendments on the Government that ensure the independence of investigations. Otherwise, the Government’s proposals would have had the NHS investigating itself as judge and jury in its own cause—a modern form of Star Chamber—which would represent a clear conflict of interest, with the NHS Litigation Authority being asked to take responsibility for running the entire scheme, from hearing the facts to determining liability and awarding compensation.

Paying a fixed fee for a lawyer to adjudicate at the end of the process would not guarantee that the process was independent. We do not know what the fixed fee would be or what sort of in-depth analysis would be conducted. The lawyer may be asked to adjudicate on facts that, for whatever reason, had not been fairly construed.

The Bill, as amended, now provides for a robust, independent investigation, limited to fact finding. We must remember that investigating the facts must logically precede any consideration of fault. We suggest that the investigation should be conducted by independent NHS redress investigators as an inquisitorial process. The coroner’s inquest provides a model. The investigation we envisage would also comply with the spirit of the Inquiries Act 2005, which provides that inquiries may be wide ranging but limited to fact finding, and not consider legal liability. However, that should not prevent fault from being inferred from the determination of fact. In other words, what we are suggesting is already in practice every day. The investigation process we envisage may
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provide the basis of the explanation, any apology, recommendations and assessment of civil liability.

Under our proposals, the investigation of the facts would be open and with prejudice. That means that the findings of fact would be robust and could have evidential value outside the redress scheme. By separating fact finding from fault finding, the findings of fact by independent investigators would be open. Thereafter, patients would have available to them a range of options for settling disputes. In addition, the NHS Litigation Authority could offer compensation on the basis of its privileged assessment of its liability.

Compensation under the amended redress scheme would be as in the original Bill. However, our proposal provides patients with a range of options at the end of the fact-finding stage should they wish to seek compensation. They may accept an offer under the proposed redress scheme, they may seek to negotiate a settlement or they may wish to enter into a resolve-type scheme. The courts would be available as a last resort. Different cases may require different approaches and procedures. Choice and flexibility should be available. The fact-finding investigation we propose may also provide the basis of an assessment of liability for any proposed claim. We propose that a Mackenzie-type friend should be available to provide support and guidance for claimants.

The original Bill did not reflect patient priorities. Research has shown that when something goes wrong, patients often want an explanation and an apology, and an assurance that lessons have been learned. Compensation does not necessarily rank high on their list. The open, independent, fact-finding investigation that we propose reflects those priorities. Patient safety is promoted by ensuring that lessons learned are not lost. The Government’s focus on compensation does not reflect patient priorities and may subvert the purpose of the investigation. It means also that the importance of the explanation and any lessons risk being relegated.

The original Bill would have provided a demand-led, open-ended, cost-free and risk-free scheme for claiming compensation. That would have proved unnecessarily costly and wasteful of resources better directed to patient care. In addition, the regulatory impact assessment states:

However, the Government will struggle to provide evidence for that. We know that the Government are concerned about that, as evidenced by their talk last year of introducing conditional fee arrangements as a way of ensuring that only claims with merit proceed. That idea was shelved.

The claim that our scheme would increase costs to £41 million is spurious. The Government do not recognise that the infrastructure has to be in place anyway, and we are attempting to simplify the scheme by restricting it to a fact-finding, independent investigation.

Our proposals put patients, not the health service, at the centre of the redress scheme. By confining the investigation of a case to fact finding by an independent process, and separating fault finding, we would largely avoid the problems of the original Bill. Patients’ interests
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would be safeguarded by independence, so they would be more likely to have confidence in the system. Our proposals would allow patients access to a fairer and perhaps better result. No scheme would be perfect, but our amendments to the Bill are a substantial improvement. Our proposals would be more likely to lead to a fair outcome, weed out spurious claims and meet patients’ expectations. My final plea to the Government is: please leave the Bill alone.

6.46 pm

The Minister of State, Department of Health (Andy Burnham): We have had a good debate this afternoon, which has been something of a parliamentary rarity in that we all know something of what we are talking about. That is—dare I say it?—not always the case. All hon. Members, especially those who have contributed to the debate, will have had firsthand experience of the NHS complaints system and of helping constituents to obtain redress from it. As a result, hon. Members talk with knowledge and authority on the issue.

I acknowledge that the process can be unsatisfactory and frustrating, often deeply so, for individuals and their families. The hon. Member for Ruislip-Northwood (Mr. Hurd) cited the statistic that since 1995, 38 per cent. of cases have been abandoned before reaching a conclusion and 43 per cent. have been settled out of court. Those figures show that the current system does not deliver much satisfaction to NHS patients and their families.

The vast majority of patients and families are not motivated by a desire to hurt the NHS or to take it to the cleaners, as my hon. Friend the Member for Crawley (Laura Moffatt) said. They simply want the system to take proper notice of what has happened, to apologise and to show that steps are being taken to ensure that other patients do not suffer in the same way. Members on both sides of the House have made that point about the motivation of the vast majority of those who come through the doors of our constituency surgeries with complaints about the NHS. We are united on that.

It is because the system often does not respond in the right way that people feel that they have no alternative but to use the legal route—it is the only way to get those responsible to sit up and take notice. That said, the hon. Member for Broxbourne (Mr. Walker)—for whom I have great respect—said that the system never says sorry. That is not entirely true. There have been many examples of good practice in the NHS and we increasingly see a spirit of openness and a willingness to accept criticism and address problems head on. However, I am sure that the NHS could improve in that regard.

Mr. Walker: I stand corrected. I should perhaps have said that in many cases the NHS is reluctant to apologise.

Andy Burnham: I agree with the hon. Gentleman that the culture has perhaps not encouraged the issuing of apologies; he was right to draw attention to that point. The point was also made very forcefully by my hon. Friends the Members for Crawley and for Livingston
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(Mr. Devine) that the culture has not been there to encourage those working at every level in the system to accept responsibility.

There has been broad consensus in the House today that we could do better, and the Bill seeks to engender a culture change, a spirit of openness and a willingness to find resolution. This is an important reform that is in tune and consistent with other reforms that the Government are making to ensure that the patient is truly at the heart of the NHS and that the NHS responds first and foremost to the interests of the patient. So we have a good measure of agreement.

Many points of detail have been raised in the debate today, and I shall seek to address them in order. However, I shall leave until last the major point of substance about which there has been disagreement across the House—the issue of independence. The hon. Member for South Cambridgeshire (Mr. Lansley) said that this was not a party-political debate, and he was absolutely right. As a new boy to this job, I was pleased and surprised to hear him outline his policy on clinical negligence. That was the first Conservative policy that I have come across in that area. So there is one up on the board, and we look forward to a few more appearing in the not-too-distant future.

The hon. Gentleman also said that the scheme proposed in the Bill is what the NHS should be doing anyway. That is partly true, but I hope that he will accept that one of the problems with the present system is the confusion that often results because the system is unsure whether a patient is also bringing legal action. This can result in a kind of stand-off, and in uncertainty as to the status of the complaint. The Bill will bring absolute clarity to the situation and create a space in which complaints can be clearly addressed.

The hon. Gentleman also mentioned disclosure, saying that the provisions would not leave the patient any better off, because nothing would be disclosed. That is not the case. Under the scheme, relevant material will be disclosed to the patient. We are also considering whether an investigation report should be issued to the patient at the end of the process, and we will consider that matter further in consultation with stakeholders. The scheme will not leave the patient no better informed. Indeed, the whole point of the Bill is that patients will be able to find out what has happened and see the information relating to their case. So I am happy to put the hon. Gentleman right on that point.

Mr. Graham Stuart: Can the Minister give us any clue as to the time frame within which patients making a complaint might expect to receive the document to which he has referred?

Andy Burnham: That is an important point, and it was also raised by my hon. Friend the Member for Birmingham, Edgbaston (Ms Stuart)—

Mr. Simon: And Erdington.

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