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Andy Burnham:
Erdington and Edgbaston. There is a confusing number of Birmingham constituencies beginning with “E”. Both my hon. Friends raised that
point. It is intended that each stage of the scheme will be governed by time limits to ensure consistency and appropriate speed in the handling of cases. The hon. Member for Beverley and Holderness (Mr. Stuart) has asked a fair question, and I can tell him that the time limits will be set out in secondary legislation after full consultation with stakeholders. We want to ensure that the limits are practical and effective, and that they do their job without placing on the service undue burdens to provide information. We accept the principle that there should be time limits, because we want the system to deliver the speediest possible redress while ensuring that a full inquiry takes place. My hon. Friends the Members for Birmingham, Edgbaston and for Birmingham, Erdington (Mr. Simon) both drew our attention to that issue.
The hon. Member for South Cambridgeshire also questioned us on the issue of tort, and asked why we had moved away from the recommendations in the “Making Amends” report. When developing the redress policy, officials had a series of meetings with stakeholders to discuss the practicality and desirability of an alternative to the existing legal test of liability. Among the alternative tests examined was one based more on determining whether harm caused to a patient could or should have been avoided, rather than on making reference to an act or omission of an individual clinician. However, it became clear that changing the whole basis of clinical negligence law was likely to be extremely difficult and time consuming. The Department reached the conclusion that, given that many of the problems in the present system relate to its adversarial nature, to the time that it takes and to the high administrative and legal costs involved, reform of the test itself was neither desirable nor necessary. So we have concentrated on delivering what we believe will be a better system to provide better redress for the cases that meet the existing legal test for liability.
Mr. Simon: I wonder whether the Minister can see the logic in my suggestion. If the Government insist that tort should remain at the heart of the Bill, and if the test is to be a purely legal one, the Bill must surely include the provision of legal advice to the claimant throughout the process if it is to make any sense. If the people who are trying to get justice are to be genuinely empowered, they will need to be given legal advice.
Andy Burnham: I will answer my hon. Friend directly. There is a danger there of replicating the present system. The new scheme will do things differently and better for the individual patient. However, he makes a fair point. I draw his attention to clause 8, which provides the flexibility for legal advice to be made available, not only at the end of the process but throughout it. It could, for example, be made available when a joint medical expert is appointed. It will be possible for advice to be provided; there is flexibility in the Bill in that regard. Perhaps we will return to this issue in Committee, but in the majority of cases, the advice will be needed at the point at which an offer is made, when the process has reached its resolution, and our proposals for the development of the scheme reflect that.
Mr. Hurd: If an offer is rejected, will the patient have the right of appeal, or will his or her only destination at that point be the courts?
Andy Burnham: It is not our intention to allow an appeal. We want the scheme to work properly to provide speedy redress to the patient. The patient will not lose their right to take the matter further, however. The right to refer the matter to the health service ombudsman is enshrined in the Bill, and people will obviously retain their legal right to take further action. In our view, it would be too bureaucratic to keep reviewing and appealing the decisions, and that is not the intention behind the scheme.
Mr. Baron: Will the Minister give way?
Andy Burnham: I want to make a little more progress. I will give way to the hon. Gentleman in due course, if that is okay.
My hon. Friend the Member for Birmingham, Erdington spoke well, and I appreciate the work that he does in his role as patron of AvMA—Action against Medical Accidents. I appreciate the work of that organisation, and his welcome for the Bill. He made the interesting point that the vast majority of cases had already been rigorously investigated by the NHS before going on to be unsuccessfully defended. That underlines the point that we need a different way of doing things, and that the system needs to be able to react differently to the handling of complaints. So my hon. Friend made an important point, but the conclusion that I draw from it is different from his.
The hon. Member for Romsey (Sandra Gidley) placed particular emphasis on the lack of provision for primary care in the Bill. However, as the Secretary of State explained earlier, primary care is governed by an entirely different set of arrangements. The NHS Litigation Authority does not have responsibility for the provision of primary care. It is possible that people might in future seek to extend the ambit of the Bill, but that is not on the agenda at the moment. It is important that we put in place a scheme that works for hospital care—secondary care. The arrangements that already cover patients and provide protection to them in the primary care setting—the professional indemnity that primary care practitioners have—will continue to be the way that their claims can be met. Of course, at that level, claims tend to be smaller than those in the secondary setting.
Mr. Beith: If that is so, why does paragraph 92 of the Government response to the Constitutional Affairs Committee report say of the scheme:
“If it is successful in delivering a better response for patients...the Department will want those benefits to be available for all NHS patients and will consider extending the scheme.”?
Was that not meant to imply that the scheme might eventually cover primary care?
Andy Burnham: The right hon. Gentleman is correct in saying that there is not a closed mind here, but we shall review the position in due course. The important thing is to get a scheme that works for hospital care and then to see whether the will or consensus is there in the future. Such an extension would significantly widen the ambit of the scheme and significantly increase its cost. At this stage, it would not be right to go in that direction, but as I have said, that is not to say that the position is closed.
The hon. Member for Romsey made some important points. She said that there is an unwillingness to own up early in the NHS and that we need a change in culture, which would save so much time and effort. On hearing that, I thought that she was about to support what we are doing, because those things need to be internal to the NHS, not externally imposed. The only way to get internal culture change—she rightly drew attention to this—is to encourage the NHS from within to adopt a different culture.
There are issues of independence, which I shall come to, but I want to stress to the hon. Lady that most trusts have a lay non-executive on the board who is specifically charged with dealing with matters relating to complaints. That is true of my local trust. There is already independence within the arrangements, and it is important not to ignore that fact.
The hon. Lady also mentioned the value of compensation and people not being short-changed, but there could be no incentive under this scheme to short-change people or to give them a value less than they would get in the courts, because that would simply encourage taking a claim further to the legal level, duplication of effort and further cost to the system. I do not believe that it is in the interests of the NHS knowingly to offer less than would be obtained in a legal setting. I hope she is reassured on that point.
My hon. Friend the Member for Cardiff, North (Julie Morgan), who has apologised for being unable to be present, made an extremely important point. She welcomed clause 17, particularly its permissive and deliberately broad powers to enable our colleagues in the Welsh Assembly to develop their own redress scheme that meets the needs of the Welsh health service. She rightly drew attention to the speedy resolution scheme and the various aspects of it, which we can learn from. We will seek to draw from them as we take our proposals forward.
The right hon. Member for Berwick-upon-Tweed (Mr. Beith) raised the West Lothian, or the Borders, question. It is obviously a fair question, but it is often one that vexes legislation of this kind. The statement of policy on NHS redress states:
“Where hospital services are commissioned as part of the NHS in England from a healthcare provider outside of England and Wales, the commissioning body”—
the PCT, in the normal run of events—
“will run the scheme and coordinate the investigation, and where appropriate make the offer of redress.”
The liability as I understand it, not being a lawyer, is of a different kind, but I believe that there is protection for the right hon. Gentleman’s constituents should they choose to be treated in Scottish hospitals. That is something that we would want to encourage, rather than take away.
The right hon. Gentleman drew attention to the costs of the scheme, but as the hon. Member for Romsey said from the Liberal Democrat Front Bench, the costs can vary from year to year, so it is difficult to give any precise costs for the scheme. Cases can vary and it is important that we all accept that. We cannot plan with absolute certainty on those matters.
My hon. Friend the Member for Crawley spoke passionately and authoritatively, as befits someone of her standing in the NHS. She was right to talk of the
effect on staff of the pressure that such complaints can bring. That aspect was missing from our debate until she rightly introduced it. I am sure that those complaints place huge distress on the members of a clinical team who have been involved in an incident where something has gone wrong. She drew attention to one herself.
Things are obviously extremely difficult for people in such circumstances, which, again, makes the point for the Bill, in that those people should be supported. People will make mistakes, so we must consider how the system supports someone through that process and encourages them to be able to make redress through their employer or organisation. We must produce a more satisfactory result than a finger-pointing culture and neither the patient nor the staff feeling satisfied.
My hon. Friend was right to draw attention to that issue, and she also said that we need a simple scheme that creates confidence in the NHS that it will work. Again, she was right to make that point. The hon. Member for Broxbourne made a similar point, drawing attention to a particularly distressing constituency case. He spoke well, and also spoke kindly of my predecessor, who would thank him for that. We offer our sympathies to the individual involved in that case and would want to learn from it.
My hon. Friend the Member for Worsley (Barbara Keeley) raised the case of Mr. Stanley Collins, who sadly died at Bolton hospital, and the difficulties encountered by his daughter, Mrs. Dawn Smallman, in getting the system to face up to the clear inadequacies in his care. My hon. Friend described them in a measured and compassionate way. She was right to say that such injury can be compounded by the process of trying to get redress through the system. I am sure that her comments will have been heard by others outside the House today in relation to whether we can, at this stage, get the hospital to take those issues up.
My hon. Friend also raised an important issue of communication by clinical staff with patients at a distressing time. It is my experience of patients who come to my constituency surgery that they recall every single word of what was said to them, as well as the manner in which those words were imparted. They are seared on people’s minds for the rest of their lives.
Receiving such news can be the single most important event in people’s lives. There is great professionalism in the service, but people would always do well to remember the point that the way in which people hear difficult news can be extremely important. My hon. Friend made a significant point in drawing our attention to that.
Before I close, I want to deal with the main point of substance between us—that is, the measure of independence in our proposals. Our remarks have drawn out the fundamental differences between how we and Conservative Members in particular see the scheme.
Let me say quite clearly that this is the NHS Redress Bill. The Bill relates to the NHS itself; the NHS has ownership of it. It is about getting the NHS to face up to mistakes when things go wrong, take ownership of them and make proper redress to people who are on the
receiving end of inadequacies in care. There is a crucial difference, in that this is an internal system that the NHS will feel it owns and has control of.
As I understand the proposals tabled by the Opposition in relation to clause 12, the same process would effectively be created twice, but there would be a more adversarial system—a finger-pointing culture— whereby people would feel under pressure, which is not the purpose of the Bill we are introducing. That takes us back to my comments to my hon. Friend the Member for Crawley.
Mr. Baron: The Minister makes the point that we are considering the question of ownership by the NHS, but I put it to him that the central issue is whether patients will be fairly treated and whether they will have a system that best meets their priorities. We suggest that the best way to achieve that is to have a system that is truly independent.
Our proposal is not more adversarial, because we suggest splitting fact finding from fault finding. Bringing in the fault finding creates the adversarial aspect, so we suggest that the redress scheme simply restrict itself to fact finding. That should not be adversarial in itself.
Andy Burnham: I want to explore that with the hon. Gentleman in Committee, but if we want a change of culture in the NHS and if we really want it to respond differently when confronted with a poor patient experience, it must be right that the NHS can make its own response to take ownership of the situation. It must be right for the NHS to understand what is going on. The service is perfectly capable of establishing and presenting the facts. That is what it does already, but we can ensure that does it even better.
Patients will retain the ability to take their claims to the courts through an independent legal process. That has not been signed away by the scheme. The hon. Gentleman, and others who have used the phrase, are wrong to say that the NHS is judge and jury. That is patently not the case.
Andy Burnham: I will not give way.
Patients are not signing their rights away in pursuing cases under the Bill. It simply gives some breathing space—some time—in which the NHS can examine what has happened, engage positively with the family involved and establish whether a better way can be found of giving them what they want: an apology, an explanation and, crucially, an assurance that the same thing will not happen to someone else. My argument, which I shall develop with the hon. Gentleman in Committee, is that our proposals will deliver that result better than a replication of an adversarial, finger-pointing, accusatory system. The hon. Gentleman is advancing a fundamentally different proposal, with which we do not agree.
Let me refer the hon. Gentleman to the words of the health service ombudsman, who said:
“I hope that the fact that an independent review of complaints about the scheme will be available will give reassurance to both complainants and the NHS bodies involved.”
Numerous elements of the scheme import some independence. The independent legal advice that I mentioned will be available to patients, along with independent medical advice. Experts will be appointed jointly by patients and professionals. There will be an annual independent review by the Healthcare Commission of how the proposals are being implemented by NHS bodies, and there will be an independent ombudsman’s review.
Mr. Baron: Will the Minister give way?
Andy Burnham: Yes, for the last time.
Mr. Baron: The Minister is proposing a system under which the NHS will establish the facts, adjudicate and then offer compensation. How can he claim that the NHS will not be both judge and jury in its own cause?
Andy Burnham: The NHS is not signing away the patient’s right to pursue the matter further. We are not trying to replicate a legal process; we are trying to create a different system, in which the service accepts its mistakes, considers how it can make amends, and absorbs the lessons to be learned. That is better than replicating an adversarial, independent process in a redress scheme. We do not want a duplication of effort.
Notwithstanding the hon. Gentleman’s ill-informed remarks, we have had a well-informed debate with a good measure of consensus that the NHS redress scheme will benefit all our constituents who seek a fairer resolution of their complaints, closure, and the ability to move on more quickly than they can now. Of course, we also want to ensure that there is no let-up in our efforts to create a safe, clean and efficient environment for the delivery of NHS care. That is the other side of the coin. The NHS continues to make huge progress in that regard, and the National Patient Safety Agency continues to work towards best practice to reduce the number of mistakes.
There are issues of detail to which we shall return in Committee, but I think we can assume from today’s debate that there is a measure of agreement. We shall probably be able to improve the Bill further, but crucially, we must ensure that the NHS views itself more honestly and openly, and works with patients to give them the redress that they deserve.
Bill accordingly read a Second time.
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