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2.15 pm

I suggest to the hon. Member for Birmingham, Erdington (Mr. Simon)—I think that he almost conceded this point in his remarks—that the new clause is legally meaningless. As a matter of statutory construction, it merely provides for an expression of good intent. It does not bestow any legal rights. It neither confers a power nor prescribes a duty. Instead, it expresses a requirement that there must be regard to

In legal terms, it is meaningless. It is not enforceable and would not appear to give rise to legal remedies, whether in public law or private law. In many respects, his new clause is empty. It does not bring anything new to the Bill or to the present situation as it stands. The NHS Litigation Authority, for example, has always had the power to settle cases. The health service has always had the power to resolve claims without recourse to civil proceedings. In short, because the provision will have little basis in reality if the Government have their way, we suggest that the new clause is unnecessary. It is a bit of waste and so we will not waste the House’s time in forcing a vote on it.

The Minister of State, Department of Health (Andy Burnham): I thank my hon. Friend the Member for Birmingham, Erdington (Mr. Simon) for the constructive way in which has engaged with me and the Department on the Bill. I thank him for facilitating the meeting that we held with AvMA between the conclusion of the Committee and today’s proceedings. To complete the tribute to him, I should compliment him on his parliamentary drafting skills, which are clearly excellent.

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As I understand it, the new clause imposes a general duty to promote resolution under the scheme. Under the new clause, a duty will be imposed on scheme members and the scheme authority to have regard, when carrying out their functions under the scheme, to the desirability of settling the case. Scheme members and the scheme authority should have particular regard to the desirability of settling under the scheme, rather than leaving cases to be pursued through the courts.

I welcome the new clause and the approach that my hon. Friend seeks to achieve through it. He is right to say that it should be seen in the context of the Government amendments. I should say to hon. Members, including the hon. Member for Romsey (Sandra Gidley), that we have listened between the Committee stage and the Report stage. We have taken on board comments made by hon. Members on both sides of the House and we believe that the Bill will be strengthened through making those amendments. In my view, the new clause reinforces the positive front-foot spirit that we want the Bill to encourage.

The Bill and the redress scheme to be established under the powers in the Bill aim to open up access to justice for the less articulate, the less wealthy and those who traditionally would have been fed up and abandoned the legal process before a case was completed. Under the new clause, if providers of NHS services believe that there might be a case of negligence, they would be expected to take cases forward. An active approach to redress will be required under the scheme. To be effective, it is important that the NHS is not defensive. The NHS must do all that it can to identify and, where appropriate, resolve cases falling under the scheme.

My hon. Friend the Member for Birmingham, Erdington was absolutely right to say that the spirit of the Bill is about empowering patients, providing information to them and ensuring that we address their needs when harm has been done. I urge him to see the Bill in the context of other reforms that the Government are making in the national health service to ensure that it is a service that focuses on the individual patient and that patient’s experience of the health service, and on ensuring that, when things go wrong, redress to the patient is the thing that matters. I am confident that the NHS redress scheme has the potential over time to effect culture change in the NHS, although I readily acknowledge that that is never an easy thing to achieve. There will be scheme members who are already taking an active approach to complaints and to clinical negligence cases. Some organisations will be prepared to be open and honest, and will embrace the principles of the redress scheme, but there will be others who may continue to be defensive, drag their heels and have a less than positive approach to these matters. We need to do all that we can to ensure that that does not happen.

Mr. Simon: Does my hon. Friend agree that although the new clause is subtle, and its scope and extent may not therefore be immediately apparent to everybody, it is a powerful and significant addition to the Bill because it fundamentally changes the obligations on scheme members? It is not at all empty or meaningless, as the hon. Member for Billericay (Mr. Baron) claimed. It is subtle, for sure, but it is powerful and complex, and
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it fundamentally alters the presumptions that will now legally have to inform the actions and attitudes of scheme members.

Andy Burnham: My hon. Friend sums up the new clause extremely well. It is not at all empty or superfluous, as the hon. Member for Billericay (Mr. Baron) sought to claim. It does indeed involve a wide, general duty, but it sets the whole tone for how scheme members should carry out their duties and use the measures and avenues that the scheme puts at their disposal. In making decisions, they are at all times legally required to consider the desirability of concluding matters under the scheme. I emphasise to the hon. Gentleman the word “concluding”, because there is a need for finality, and for giving patients an early apology and explanation of the steps being taken to prevent incidents from happening again. All that is enshrined in the new clause.

I am anxious to avoid cases being brought under the scheme, only for some of the old thinking to prevail so that at the point at which they may be settled they are pushed into the legal process. That would lead to duplication of expense and resource, which would not be in the interests of the taxpayer. I believe that we will avoid that by having a clause that promotes the desirability of settling. I am sure that hon. Members in all parts of the House can think of cases, not only in the NHS but in other parts of the public sector, in which individuals have been stonewalled and pushed into pursuing a legal action against a public body, possibly in the hope that they will get fed up and give up, having been ground down by the seemingly interminable process in which they find themselves. That process, which comes about because individuals in organisations will not accept that they have made mistakes and apologise for them, can be extremely wasteful of public resources. It can also ruin people’s lives because they become consumed by a case that ultimately has to be pursued through the courts. As I understand my hon. Friend’s new clause, it is precisely that situation that it seeks to avoid.

The new clause signals that the redress scheme is not simply a process parallel to that in the courts but is intended to be the primary means by which disputes arising out of NHS hospital services are, where reasonably practicable, to be resolved, rather than leaving cases to be pursued through the courts. It is drafted in general terms, imposing a general duty to promote resolution. My expectation is that at each stage of the proceedings, the scheme member and/or the scheme authority, if they are considering giving up on the scheme for a specific case, must have regard to the desirability of settling under the scheme. At that point they should consider the means that they have at their disposal, such as the joint instruction of medical experts, and positively consider whether it would be right to take that course of action given the desirability of settling and the awareness that the case may continue by the legal route.

The new clause is entirely in keeping with the spirit of the Bill that we have put before the House. It is consistent with the open learning culture that we want to see in the NHS, in which mistakes are identified and
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acted on at an early stage and in which redress is offered as early as possible. In reinforcing that duty, the new clause adds significantly to the Bill, and I am pleased to signal to my hon. Friend that the Government are prepared to accept it.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

Clause 3

Redress under scheme

Andy Burnham: I beg to move amendment No. 8, page 3, line 7, leave out ‘and’.

Madam Deputy Speaker (Sylvia Heal): With this it will be convenient to discuss the following: Government amendments Nos. 9 and 10.

Amendment No. 4, in clause 6, page 4, line 23, at end insert—

‘(g) about the publication of a report of the independent investigation in accordance with paragraph (a)’.

Government amendments Nos. 11 and 16 to 18.

Andy Burnham: In Committee, the point was well made, particularly by the hon. Member for Romsey (Sandra Gidley) and my hon. Friend the Member for Stoke-on-Trent, Central (Mark Fisher), that patients harmed during their NHS care often say that they do not want it to happen to anyone else. I have never been at odds with that statement. Those are normally the first words out of the mouths of people presenting at our constituency surgeries when they seek to pursue a case and confront the NHS with the harm that they have suffered through its failings. For many individuals, redress and closure—to use that terrible word—may often mean being clear in the knowledge that measures have been or will be taken to ensure the mistake does not happen again.

I was asked by the hon. Lady and others to consider an amendment to the Bill to provide for a report on action to be taken to prevent similar cases arising in the future, and for that report to be made available where appropriate. I am pleased to say that, having considered this matter carefully, I have tabled such an amendment. The amendment, to clause 3(2), provides that redress will now ordinarily include the giving of a report on the action that has been or will be taken at local level to prevent similar cases arising.

As was accepted in Committee, there will be occasions where mistakes can simply be ascribed to genuine human error—mistakes where no procedural changes need to be made and where a report of this type will not be appropriate. As I said in Committee, we must be careful about placing extra administrative burdens on the NHS. I believe that the hon. Lady accepts that caveat. In these specific types of circumstance, the scheme may provide that a report will not be necessary, although ordinarily such a report will now be provided. Therefore, not only will scheme members publish an annual report about lessons to be learned from cases under the scheme, under clause 10, but the redress offered to individuals under the scheme will now ordinarily include a report on the specific
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action to be taken to prevent a similar mistake happening again in that patient’s individual case. I think that that was what the hon. Lady was urging me to do, and she was right to do so.

2.30 pm

On amendments Nos. 4, 10 and 11, I listened carefully to what was said in Committee, particularly by my hon. Friend the Member for Birmingham, Erdington (Mr. Simon), about the reasons why investigation reports should be provided to individuals if requested. He focused on the importance of providing the full facts, not only to those to whom offers are made under the scheme, but to those to whom an offer is not made and whose case is terminated. He spoke about the sense of grievance that people may experience if they are not eligible for redress and he explained why they should, if they so wished, be provided with the facts and the outcome of the investigation, so that they could understand why they were not entitled to the redress that they sought.

Amendments Nos. 10 and 11 require the scheme to provide for the findings of an investigation to be recorded in a report, and for the report to be made available to the individual seeking redress on request. As I stressed in Committee, clause 3(2) already ensures that an explanation will ordinarily be provided under the redress scheme. It will be a full explanation, and we envisage that in a number of cases—particularly the more straightforward—the patient will be satisfied with that explanation. We want to reduce unnecessary bureaucracy for scheme members, and we do not wish to impose on them the extra burden of providing the investigation report in every case. In some—perhaps many—cases, an explanation may be adequate, but our amendments ensure that, if it is requested, the investigation report will ordinarily be provided.

The amendments enable the scheme to provide that the report need not be made available before an offer is made, or before proceedings are terminated. That, too, is intended to reduce the administrative burden on scheme members. Providing investigation reports at an earlier stage may result in increased correspondence and delay. It is envisaged that when the offer of redress is made, a copy of the investigation report will be sent to the individual, if they request it. That will give the individual a complete set of documentation that they can consider with their legal adviser when the offer under the scheme is assessed.

The amendments enable the scheme to specify other circumstances in which reports need not be provided. That covers rare cases, such as those in which the person seeking redress is not the patient, so it is considered appropriate to withhold certain confidential health information. Including in the Bill an explicit requirement that investigation reports generally be provided to individuals is in the spirit of openness that the scheme seeks to engender. That will reinforce our messages about more open apologies and explanations.

In Committee, the Bill was criticised because it was said that the investigative process could not be transparent if its findings were not open. I hope that the amendments satisfy hon. Members that we fully intend the investigative process to be transparent. There is no question but that investigation reports will generally be available, if requested. That will be in
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addition to the explanation provided to the individual complainant. I would like to make it clear that the investigation report will not be kept back on the ground that it is privileged, nor will it be claimed that investigation reports are “without prejudice” and inadmissible in any subsequent legal action. That matter was raised in Committee by the hon. Members for Billericay (Mr. Baron) and for Eddisbury (Mr. O'Brien), and I am happy to give an assurance on that point.

The power in proposed new subsection (2B) is an enabling power. Under the scheme, no report need be provided until an offer is made, or until proceedings under the scheme are terminated. As I have said, the intention is to reduce the administrative burden on scheme members, but in clause 15 we have a specific power to make different provision for different cases, and to exercise powers “subject to exceptions” or

The power to restrict the provision of investigation reports may therefore be exercised only in relation to particular cases or a class of cases. Our intention is that the power will not be exercised in cases in which it is appropriate for a joint medical expert to be instructed. However, it does not prevent investigation reports from being provided until the final stage. My hon. Friend the Member for Birmingham, Erdington was concerned about that problem, but I can assure him that the Government amendments do not require reports to be provided at the end of the process in all cases. There is flexibility in the Bill so that investigation reports can be provided to individuals at an earlier stage if that is deemed necessary. He was right to press me on the issue, because if people are to make an informed judgment on the instruction of a joint medical expert they need to see the contents of the investigation.

The Government amendment further weakens the need for independent investigations—a subject that we will debate in the next group of amendments. However, there is no question but that investigations will be open. The actions of scheme members in conducting the investigation, the scope of the investigation and the processes followed will be open and subject to scrutiny. We have introduced a general duty to promote resolution by accepting new clause 1, which deals with the desirability of settling, and the amendment clarifies the need for openness and transparency. Taken together, the provisions strengthen further the NHS redress scheme.

Turning now to Opposition amendment No. 4, hon. Members will realise from my earlier comments that I agree that investigation reports should generally be made available to individuals. I am afraid to tell the hon. Member for Billericay that I reject his proposal for a number of reasons, although I accept that it attempts to achieve a similar goal to our provisions. First, Government amendments Nos. 10 and 11 go further than his amendment, which enables the scheme to provide for reports to be made available but does not require it to do so. If the power is not exercised, the scheme could not make provision for the publication of investigation reports. The Government amendments require the scheme to provide for reports generally to be made available when requested.

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Secondly, the amendment refers to

but I do not believe that publication is appropriate. Investigation reports deal with an individual’s health care and contain personal, often confidential, information. It is right that they should be made available to the individual whose health care has resulted in harm, but it is not right that they should be more widely available. Even if anonymised, some scheme members will have so few redress cases, or so few cases of the kind described, that the individual patient could be identified in a published report.

Steve Webb (Northavon) (LD): We obviously accept that the publication of a report on an specific case could reveal an individual’s details, but if the NHS scheme repeatedly finds categories of problems—clearly, we hope that the national patient safety agency or another body would identify such categories anyway—is there a mechanism for systematic learning from groups of cases when confidentiality is not an issue?

Andy Burnham: The hon. Gentleman is right to raise that point. I can reassure him that there is provision under the Bill for such a report to be compiled on an annual basis by scheme members. Under clause 10, duties are imposed on members of the NHS redress scheme. Subsection (2)(j) contains a requirement to produce an annual report and the lessons to be learned from it. We are making a further amendment on that point.

There is an expectation that scheme members will look in the round at cases that they have dealt with in the past year under the NHS redress scheme and, as the hon. Gentleman says, draw general conclusions and lessons from such cases and put that information into the public domain for local people to consider. However, in response to the amendment tabled by the hon. Member for Billericay, we argue that it would be wholly inappropriate for the report on an individual’s health care to be placed in the public domain by an NHS trust. An individual may choose to do that following the receipt of such a report, but that could not be mandated under the Bill. The general point made by the hon. Member for Northavon (Steve Webb) is picked up by the Bill further on.

The third problem with amendment No. 4 is the reference to “independent investigation”. I consider this inappropriate because we do not intend that there should be an independent investigation. We will discuss the issues around independence in due course, but for the three reasons that I have outlined, I reject the amendment.

Amendments Nos. 16 to 18 show the Government’s intention to require a member of the redress scheme to prepare and publish an annual report about cases falling under the scheme and the lessons to be learned from them—the report that I described a moment ago to the hon. Member for Northavon. I gave assurances about that in Committee.

However, clause 10(2)(j) states that a scheme may

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