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I was asked in Committee by the hon. Members for Beverley and Holderness (Mr. Stuart) and for Ruislip-Northwood (Mr. Hurd) to accept that there should be a guarantee written into the Bill that annual reports will be provided. Being a partisan soul and one who, in very rare circumstances, considers himself likely to accept Conservative amendments to any Government legislation, I find myself in an extraordinary position. The hon. Gentlemen made a reasonable suggestion, and the amendments that we have tabled are a response to their sensible argument and the constructive discussions that we had.

Indeed, it is desirable that such a report should be a requirement under the Bill, as suggested by the hon. Member for Northavon and the two Conservative Members. We are happy to amend the Bill to make that a requirement of membership of the NHS redress scheme. The word “may” has been replaced with “must” and the scheme must now require scheme members to publish annual reports on cases dealt with under the scheme and lessons to be learned from them.

I have covered all the Government amendments. We will resist amendment No. 4.

Mr. Baron: As we know, the amendments deal with the publication of reports and the limitation on their disclosure. We have no problem with Government amendment No. 9. It is important that lessons are learned, so a report to that effect should be produced and encouraged. Our concern is with Government amendment No. 11.

Our approach to the preparation of reports and their disclosure is relatively simple. We propose that the investigation should be limited to a fact-finding exercise. That is a discussion that we will come to later on a different group of amendments. We propose that in every case a report should be made of such an investigation and made available to the person concerned in any event, whether or not compensation is sought and whether or not an offer is accepted. If we believe that the culture of the NHS needs to change and that we need a more open, transparent and robust investigation of the facts, it is logical to expect that reports in all cases should be made available to the patients. That is what our amendment No. 4 aims to achieve.

When the stage is reached at which any offer is made, then in any reports concerned with assessment of liability the usual professional practice in respect of privilege would apply. In other words, the practice where a client and a lawyer consider the client’s legal liabilities remains confidential to the client and the lawyer. This solution is a logical consequence of separating fact finding from fault finding.

The Government’s solution to that is partly set out in amendment No. 11. It refers to an investigation report, but it is not clear whether that report is fact finding, fault finding or both. I ask the Minister to reflect on that as it creates a functional incoherence that was described in another place as a dog’s breakfast.

2.45 pm

Andy Burnham: It is important to be clear on that point. My understanding is that the investigation report is the document that would be prepared by the
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scheme member for the NHS Litigation Authority to use when considering the conduct of the investigation and the issues arising as regards quantum and liability. That document should ordinarily be provided to the individual seeking redress.

Mr. Baron: I thank the Minister for that clarification, which prompts a further question. The Minister says that the report would be produced in any case because it would be the report on which the NHSLA would base its assessment, as opposed to its determination, of liability. Under amendment No. 11, the report need not be shown before an assessment is made, where proceedings are terminated, or in other as yet unspecified circumstances. If the report is going to be produced anyway, why should not it be made available to the patient, given that we are trying to encourage a culture of openness within the NHS and that no added bureaucracy or cost would be involved? The Government’s proposal does not guarantee the disclosure of the report in every case. It is the opposite of the openness and transparency that we propose, which is needed if we are to transform the culture of the NHS. What does the Minister have to fear from patients receiving a report at the end of the fact-finding stage regardless of whether an offer is subsequently made?

Andy Burnham: I think that I have made this clear, but I am happy to do so again. In providing an offer of redress, at the end of the process the scheme would seek, if appropriate, to give the individual an apology, an explanation, a statement or a report of what action will be taken to prevent similar adverse incidents happening again, as well as a copy of the investigation report. That is ordinarily what would happen. Were a financial offer to be appropriate, that would be included too. That would be the package of redress.

My hon. Friend the Member for Birmingham, Erdington (Mr. Simon) has raised certain points privately and in Committee. He asked whether in the more complex cases, particularly where the instruction of a joint medical expert might arise, the patient would need to see the investigation report at that point. I take his point. However, in order to minimise bureaucracy and correspondence, the general intention is that all that information will be disclosed and provided to the individual at the end of the process. We believe that that is ordinarily the right way to conclude matters.

Mr. Baron: I thank the Minister for that, but ask him to re-examine Government amendment No. 11(2B), which says:

That needs clarification. I think that the Minister is saying that the investigation report produced at the end of the fact-finding stage would be made available to patients if they so requested. If that is not the correct position, he has an opportunity to put it right and to clarify what amendment No. 11(2B) means.

Andy Burnham: It is helpful to clarify those points. I said that (2B) would be necessary to cover rare cases,
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for example, when the person who seeks redress is not the patient and it is considered appropriate to withhold some confidential health information. I want to emphasise that the scheme is flexible. There is provision for investigation reports to be released earlier in the process to individuals when the merits of the case require it. However, they would generally be provided at the end. There is, therefore, flexibility, but the Bill sets out what will happen in the normal course of events.

Mr. Baron: Doubtless we will revert to the matter later. There is no point in questioning the Minister further. He has attempted to clarify the position, but a few questions remain about when and under what circumstances a report would be withheld from the patient.

It goes without saying that we support the proposal to prepare and disclose the report, but we oppose any unspecified and undefined overriding discretion to refuse to disclose such a report. That would not reflect patient priorities or help to change the culture of the NHS to make it a more open and transparent investigation. It would not help patients in their search for not only an explanation and an apology, but a simple and honest investigation of the facts. I am sure that we will revert to the point later.

Sandra Gidley (Romsey) (LD): I welcome especially amendments Nos. 8, 9 and 10 and other consequential amendments. As the Minister said, we discussed the subject at some length in Committee. He seemed genuinely engaged and said that he would reconsider the matter. I therefore thank him for doing that because it is the first time that that has happened to me in my six years in this place.

I am delighted that the Bill includes a clear statement that a report should be produced on action to prevent a recurrence of similar cases. As the Minister says, people mainly want to know that the likelihood of what happened to them recurring will be reduced. Many people’s prime motivation is not money. We need to be clear about that in our discussions today.

I, too, am concerned about Government amendment No. 11, especially proposed new subsection (2B) to clause 6. The Minister claims that there is some flexibility and that the general aim is to provide a report, but it is still not crystal clear in what circumstances the report will be provided when the scheme is about to be terminated or an offer has been made. Some guarantees about that would be welcome because, although I do not doubt the Minister’s good intentions, the Bill now includes a clause that will enable future legislators and Governments to take a step back from what the Minister appears to claim. That is worrying.

I, too, regard it as fundamental that a copy of the investigation report is available to all parties, bringing together the facts of the case as soon as possible so that everybody can reach a clear decision about what has gone wrong and the action that needs to be taken. The facts need to be on the table before we move to the next stage. Liberal Democrat Members disagree with the Government because we believe that an independent, separate stage is vital to the long-term success and
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acceptability of the scheme. Sadly, there will probably be further disagreement about that, but I shall not repeat the arguments at this stage.

I am worried that the report is available only on request. Although the ability to ask for a report is a step forward, I believe that the emphasis is slightly wrong. As has been said, it is not clear what extra bureaucratic burden making available a report, which has already been prepared, puts on the NHS. What reassurances will there be that patients under the scheme will even know that they have a right to ask for the report. Will that be part of the explanation process? How will they become aware of that? There is a host of legislation, but there is also a great deal of ignorance among the public about what is and what is not available. At the very least, there needs to be a clear procedure for informing a patient about any report. Perhaps there should be an opt-out rather than an opt-in, because I fully accept that there might be a small number of cases where patients, for a variety of possible reasons—they might have had a mental health problem associated with the report, or they might not want to be reminded of things—are not interested and do not want to see it. However, everybody should know that such a measure is available and be able to access it.

Amendment No. 4 has cross-party and independent support. It makes it clear that there needs to be an independent investigation and that a report of any such investigation needs to be published. It also makes it clear that that needs to be an integral part of the process, rather than merely of the end of the proceedings. The Minister has clarified that point.

Although I welcome the Government amendments, there are still a few small areas where refinements could be made to make the final version of the Bill clearer.

Dr. Richard Taylor (Wyre Forest) (Ind): I, too, welcome the Minister’s comments on openness, which is essential. I welcome the fact that the report will be available, if requested, and I echo the comments of the hon. Member for Romsey (Sandra Gidley) that the right to get that must be widely publicised and known. The need for a report of the fact-finding investigation has been emphasised to me several times recently. Healthcare Commission reports have been seen by the claimant and have been very definitely disagreed with for gaps and errors, and that has led to discussion, so it is crucial that this report is available.

I am also unhappy about proposed new subsection (2B) in amendment No. 11, because I am not sure whether the Minister has sufficiently reassured me yet. Are there still exceptions at the point between the investigation and the offer? If the complainant requests the report at that time, does he still have the right to have it before the offer is made, or are there circumstances in which the report would be withheld from the complainant at that time?

Mr. Nick Hurd (Ruislip-Northwood) (Con): I rise to support amendment No. 18 and to place on the record my gratitude to the Minister for having had, like the hon. Member for Romsey (Sandra Gidley), my first experience of a Government Minister actually listening
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to me—unlike at the current moment. The amendment might change only one small word—“may” becomes “must”—but that is the right thing to do, because it sends a stronger signal about the Government’s intentions and, as the Minister probably recognises, the central challenge here is how to generate trust in the Government’s proposals. Central to that is the perception of transparency and the sending of a signal that the Government understand what motivates people in this context. The Minister and other Committee members were very clear that a large part of people’s motivation is to try to make sure that what they suffered is less likely to happen to other people. An annual report will play a part in that process. I also congratulate the Minister on listening to the arguments made in Committee—principally by the hon. Member for Romsey—in favour of stiffening the requirements of explanations to include reports on further actions taken, where appropriate.

May I press the Minister on one point? In Committee, he was concerned about the administrative burden that this might involve the system in. Is he any clearer on the figures—he did not have them to hand in Committee—as to what proportion of cases, on a current run rate of about 5,000 cases a year, are down to human error or basic actions that would not require a report of the kind under discussion?

3 pm

Andy Burnham: I am pleased to have provided the hon. Member for Romsey (Sandra Gidley) with a “first”. I find it hard to believe that that was the first occasion when such an offer was made to her, but never mind—I am happy to do the honours.

I want to respond positively to the points that have been made. As the Bill makes clear, a scheme must provide for investigation reports to be available on request, as the hon. Member for Wyre Forest (Dr. Taylor) acknowledged, but we recognise that that might not be appropriate in some cases, particularly those in which patient confidentiality or data protection issues are involved. In our view, to adopt a rigid approach in primary legislation would be a mistake, but as I said in response to the hon. Member for Billericay (Mr. Baron), the intention is that the report that the scheme member makes available to the NHS Litigation Authority would ordinarily be the self-same report provided to the individual patient, on request, at the end of the process.

On the points raised by the hon. Member for Ruislip-Northwood (Mr. Hurd), we clearly must have regard to the administrative burden that primary legislation will place on scheme members. It would be a mistake to make the Bill so rigid as to increase the potential burden on individual scheme members, which is why we have sought to retain some flexibility. Some of these matters will indeed be dealt with through the regulation-making process, but I can assure the hon. Gentleman that there will be further consultation with Members and within the NHS to get the balance right. The balance that we seek is openness and transparency for the patient and the right to see the details of their case as provided to the NHS Litigation Authority, while at the same time not creating a scheme that is so rigid that it churns round paperwork and is unnecessarily bureaucratic.

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Mr. Baron: Can we be absolutely clear about this point? I and other Members have tried to question the Minister on it and we are having a little trouble pinning him down. We all agree that an investigation report will be produced at the end of the fact-finding stage. Can he confirm that it will be made available just to those patients who request it, and that there will be no exceptions to that rule? If that is so, what is the function of proposed new subsection (2B) in amendment No. 11?

Andy Burnham: Of course, the report is not independent, as the hon. Gentleman just claimed, but the report of the scheme member to the NHS Litigation Authority. The purpose of proposed new subsection (2B) is to address the point that I made a moment ago. Ordinarily, most cases will not deserve a flurry of paperwork as the investigation goes on; many will be relatively straightforward. At the point at which redress is offered, the package that the individual receives will include: an explanation; if necessary, an apology; as other amendments that we have tabled make clear, an explanation of how lessons will be learned and action taken to prevent similar events from happening again; an offer of financial compensation; and, on request, a copy of the investigation report.

A scheme member cannot opt out of that package, because the Bill places such a requirement on them. However, paragraph (b) of proposed new subsection (2B) allows for other circumstances, and in doing so deals with the issues raised by the hon. Member for Wyre Forest and the question of confidentiality. My guess is that the number of such cases would be small, but there may be occasions when it would not be appropriate for investigation reports ordinarily to be provided. It is right to seek in primary legislation to create the flexibility to allow for such circumstances.

Mr. Graham Stuart (Beverley and Holderness) (Con): I am grateful to the Minister for listening to the representations made in Committee about the production of an annual report. However, if the report of a particular case is made available to a member of the public—we are all in favour of transparency and openness here—has he considered whether any clinicians named in the report might become more defensive and seek legal or other representation before they participated in what is supposed to be a relatively low-key, speedy and internal investigation? In those circumstances, is there not a danger of undermining the Government’s approach to independent fact finding?

Andy Burnham: Possibly, but that is why I would tell the hon. Gentleman that the Conservative amendment should be fiercely resisted. To publish such a report and put it into the public domain would be extremely detrimental and could damage the whole process that we are trying to construct. I believe that I made the point in Committee that there is an important balance to be struck between the wish to be open and transparent and the desire for candour and frankness in the reports. We would not want punches to be pulled in the construction and writing of these reports and we would like things explained as openly as possible, so there is a balance to be struck.

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Having reflected on the debate in Committee, I decided that we should come down in favour of openness and transparency. Indeed, that is the spirit of the scheme and it explains why we tabled the Government amendments to make it clear that the report should ordinarily be provided to the individual. The hon. Gentleman raises a valid point in that the report may contain sensitive information, but I strongly urge him to realise that amendment No. 4 would create a different scheme altogether.

Mr. Baron: Words such as “ordinarily” need clarifying, particularly with respect to the Government amendment. May I ask the Minister a simple question, to which I would appreciate a simple answer? If patients want to see the investigation report—he has admitted that it is going to be produced, so we are not talking about added bureaucracy—will they be able to see it under all circumstances? I am talking about the patient seeing the report.

Andy Burnham: Obviously, there is no “ordinarily”. The proposed subsection (2A) makes it clear that on request a report should be provided to the individual seeking redress. Then we have proposed subsection (2B) because, as I have already explained, it would be inappropriate in some cases to provide the report on request. The individual seeking redress may not be the person to whom the health care was delivered and, in rare cases, patient confidentiality may be breached or it may be inappropriate to release sensitive information.

What I am saying, as clearly as I can, is that we responded to legitimate points and built into the Bill the clear expectation that reports will be provided on request to the patient. If the hon. Gentleman is asking me whether it is a guarantee that applies to 100 per cent. of cases, I have to draw his attention to paragraph (b). He is right to challenge, but he should not interpret the provisions with such suspicion.

I hope that it will become custom and practice under the NHS redress scheme always to provide the report. Indeed, I hope that, rather than on request, the report will always be provided to the patient because, as I have said all along, that will facilitate the process of finality and closure. That will be a good thing in my view. In no way are we taking away with one hand what we appear to have given to the hon. Members for Billericay and for Romsey. I hope that he will understand that it is appropriate to include flexibility in the Bill, given that, as was just mentioned by the hon. Member for Beverley and Holderness (Mr. Stuart), such reports could contain highly sensitive information that it would be inappropriate to disclose in every case.

Mr. Baron: I thank the Minister for his clarification. I think that he said at the Dispatch Box that, in all cases where the patient wishes to see the investigation report, the patient will be given that report—unless I am wrong, in which case he may wish to correct that.

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