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Mr. Baron: I thank the hon. Gentleman for giving me the opportunity to raise that point in the House. To be kind to him, I suggest that his recommendation is only a half-measure, because the independent person
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who oversees the investigation of the facts would have the right to call forward expert medical opinion. The suggestion of joint instruction would add nothing that would not be available to the independent person overseeing the investigation. If the hon. Gentleman is serious about independence, he should back the concept of ensuring that whoever oversees the investigation is independent of the trust that is being investigated. Like a coroner, that person would have the right to call forward expert medical advice that was truly independent for the benefit of the patient in question. The only way to guarantee independence is by having somebody independent oversee the investigation.

The Minister talked about access to court action. The Government claim that a safeguard is that the patient can reject the scheme and have access to the courts, but that is nonsense. The Government are defining the merit of redress scheme by the occasion of its failure—when people resort to court action even though the scheme is supposed to provide a genuine alternative to litigation. The Secretary of State and the Minister have made great play of the fact that the patient can always complain to the health service ombudsman and ask for a review to be undertaken by the Healthcare Commission. However, the availability of such remedies relates to maladministration and procedural matters, not substantive issues.

Overall, the leaky buckets do not change the fact that the trust under investigation would be investigating itself—a clear conflict of interests that acts against patients’ best interests. Nor would the independence that we envisage be more expensive. The Minister has made great play of that point.

Andy Burnham: The hon. Gentleman really must tell us who would employ the individuals mentioned in the amendment. Would they be employed by another scheme member or outside the national health service—

Mr. Graham Stuart: You are the Government.

Andy Burnham: But it is an Opposition amendment. If those individuals were to be employed outside the NHS, by whom would they be employed and how many would there be?

Mr. Baron: The Minister persists with that question because he is trying to mask the fact that the Government do not accept that the scheme should be independent. We are trying to import into the Bill the concept and principle of independence, and the best way to do that is to ensure that whoever oversees the investigation of a trust is independent of that trust. It is as simple as that.

Mr. Stuart: The Minister seems to have forgotten that this is enabling legislation. The thousands of civil servants behind the Government should mean that it is possible to decide, after an appropriate time, precisely who should control investigations. Does my hon. Friend agree that what is important now is to
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determine that that person should be independent, and that the Minister is simply trying to pick our proposal apart?

Mr. Baron: I totally agree. We are trying to introduce the principle and concept of independence, but the Minister has made it clear that he does not believe that the scheme should be independent.

Dr. Richard Taylor: May I make a suggestion that may go at least half way towards answering the Minister? In “Making Amends”, it was proposed that the NHS redress scheme should be aligned closely with the new NHS complaints procedure. If that were to happen, the Healthcare Commission would be involved, and that would mean that people would automatically be available to oversee the process independently.

Mr. Baron: I do not disagree, but we need to make it clear that we are trying to introduce into the Bill the principle and concept of independence. I am willing to give way to the Minister again if he wishes to clarify his position on the matter. However, in response to an intervention by me in Committee, he made it abundantly clear that he did not believe that the scheme should be independent, and that ownership was more important.

Andy Burnham: I am happy to intervene again. At the start of his contribution, the hon. Gentleman made it clear that he does not believe that the NHS should investigate itself. In Committee, his proposal was for independent and suitably qualified patient redress investigators, but now he is proposing something different. He needs to give the House an explanation of that, and not evade the question that I am about to ask. Will the people holding those posts be employed by neighbouring trusts, or by PCTs, or by a body such as the Healthcare Commission? If I am to answer him, he needs to be specific. It is not good enough for him to say that the Opposition do not have armies of civil servants: he is asking us to change our legislative proposals, so we need to know what he intends.

Mr. Baron: The Minister referred to amendments that were proposed in Committee, but I suggest that he confine himself to those tabled for today’s Report stage in the House. He seems unable to accept that we are trying to push for the principle and concept of independence. He has not refuted my earlier suggestion that he does not believe that the redress scheme should be independent, so there can be no merit in going into detail about how we would secure that independence. We are using the amendments to introduce the principle and concept of independence into the Bill.

The Minister has tried to attack our proposal that the redress process should be independent by suggesting that it would be more expensive. The Government have conceded, however, that in both their and our proposals there is a two-stage process; the fact-finding cost is, therefore, fixed, inevitable and unavoidable whoever oversees the investigation. There is no question of duplicating bureaucracies and so no question of additional cost. Indeed, our proposals
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could actually save money as they would inspire greater confidence in the scheme and thus better avoid costly litigation.

In addition, the Minister has contrived the idea that an independent fact finding process would be adversarial, accusatory or finger pointing, but that makes no sense at all. There is a basic legal distinction between an adversarial process and an inquisitorial one. An inquisitorial process is concerned with fact finding, not fault finding; there is no sense in which such an investigation would reinforce a blame culture in the NHS. Indeed, our proposal for an independent fact finding process would ensure that the proceedings were not adversarial, as no lawyers would be present and no legal rights would be asserted or defended.

The Minister talked about promoting a culture of openness and honesty, in which the NHS takes responsibility for its own mistakes. He implied time and time again that because our proposal would require an independent outsider to go in and consider what went wrong—he referred to that point again earlier today—it argued against a culture of openness in the NHS and would encourage NHS staff to close ranks and clam up. But that is absurd. If the openness the Minister is talking about is all in-house and not exposed to outside scrutiny, it is not openness at all. There is a fundamental contradiction between the Government’s desire to promote openness and the Minister’s reluctance to allow an independent person to oversee the investigation of the facts.

In Committee, the Minister tried to ridicule our suggestion for an independent fact-finding process by talking about people “snooping” on trusts. He criticised the Opposition for not trusting NHS professionals to carry out an investigation into their own case, but that is a matter neither of snooping nor of trust. What exactly does the Minister believe that the NHS has to fear if his intention is to promote openness and honesty?

I fear that the Minister has taken the problem at the heart of medical error—the blame culture and the reluctance to admit mistakes—and institutionalised it. Instead of challenging and confronting the problem, he has built his system around it. His non-independent scheme seeks to insulate the NHS from outside investigation even when such investigation is of a fact-finding rather than a fault-finding nature. He has set his heart on a non-independent scheme and will dredge up as many bad arguments as he can to support it. Saying that lessons should be learned, but only if they are the lessons the trust wants to learn, is not a genuine commitment to learning lessons or to changing the culture of the NHS.

In conclusion, I return to my theme: independence is right both in practice and in principle. It complements the culture of openness the Minister is trying to promote. It would not be accusatory because we would separate fact-finding from fault-finding; we would keep the lawyers and the finger pointing out. It would allow lessons to be learned and would reassure the patient. That is the most important point, because without independence, the investigation of facts, which will eventually give rise to an assessment—not a determination—of liability and a possible offer of
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compensation, will not have the confidence of patients. In the worst case scenario the redress scheme would not be a meaningful alternative to going to court, and because of the importance of the issue I intend to test the opinion of the House on the amendment.

Sandra Gidley: We have just heard a long and detailed explanation—despite what the Minister thinks—so I shall not rehearse many of the arguments.

The amendments are an attempt to improve the scheme by introducing the concept of independence. There is broad consensus that we want a spirit of openness and honesty in the NHS; it needs to be part of the NHS culture. I know that attempts are being made to engender and promote that, with the emphasis on the reporting of incidents, which has quite a depressing effect because we then read reports that there are a million adverse incidents in the NHS in a year. Actually, it is good that any near miss—any slight problem—is reported, because we learn from those mistakes. We are moving towards a culture of openness and honesty, because people realise that in many instances there is no blame attached.

Disagreement has arisen, however, because the Government seem to be wedded to the idea that in-house investigation will promote further openness and honesty. Indeed, Members such as the hon. Member for Crawley (Laura Moffatt), who have considerable experience of the NHS, argue that point very powerfully.

I undertook my own very unscientific straw poll.

Mr. Simon Burns (West Chelmsford) (Con): Like all Lib Dem polls.

Sandra Gidley: I am on the hon. Gentleman’s side here—remember?

I conducted that poll to get a feeling for the attitude of various grass-roots employees of the NHS. I asked for their thoughts in a very neutral way, without prompting. There seemed to be a considerable consensus that a completely in-house investigation causes problems, not necessarily because of a lack of desire for openness, but because often internal tensions and loyalties come into play and are played on in a way that can be unacceptable. For that reason, there seem to be a number of people who strongly support the concept of independence.

3.45 pm

I was accused of being unscientific, but, as the hon. Member for Billericay (Mr. Baron) said earlier, a number of bodies support this concept. I think we have to approach it from a patient perspective, because unfortunately patients can sometimes have a deep mistrust of the NHS. When things are going well, people have nothing but praise, but when things go wrong, time and again there is the accusation that “they all cover up for each other”. That perception must be challenged, and that is why the Bill as it stands is so dangerous. I am far from convinced that “they all cover up for each other”, but it does happen from time to time.

For those reasons, there is a huge advantage in introducing someone from outside the organisation:
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people can talk more frankly, as long as the outside person has some powers to access the information that is required to complete the investigation. If that person is independent, the process will have much greater buyin from the public and, I suspect, much greater cooperation from staff who are involved, directly or indirectly.

The outside person clearly needs to be independent. The Minister questioned us at some length to try to get details of who would employ the person and whether they would be truly independent of the NHS. I confess that I felt that the Minister was taking the view that we, as Opposition Members, often take in Standing Committees, because we are often faced with something fairly broadbrush from the Government and are asked to take a lot of things on trust. [Interruption.] The Minister says that he explains, and I concede that he has tried very hard to explain, but I can think of numerous Standing Committees in which I have served where the detail of proposals was extremely hazy——so the Minister is not exactly unique in this.

Steve Webb: Does my hon. Friend agree that if the Government accept the spirit of the amendments and the principle of independence, no Opposition Member would, I suppose, force through the specific wording, provided we received an assurance that amendments on independence would be introduced in another place?

Sandra Gidley: That would be welcome, but, judging from the experience during other stages of the Bill, I cannot see the Government conceding on this matter.

There must be wider consultation on the precise nature of the independence so that we know exactly what is acceptable to patients and those within the NHS. Taking the Government approach of the enabling principle, I would contend that there is everything to be gained from accepting the principle of what we are talking about and consulting more widely on the detail. I urge the Minister to consider the amendments, which have widespread support, carefully, and perhaps live a little dangerously.

Mike Penning (Hemel Hempstead) (Con): I will speak for only a short time—I am sure that the Minister will be pleased to hear that. I want to talk about natural justice, about which we seldom hear from the Government these days. If patients or their loved ones feel that they have suffered at the hands of the NHS, they have already been substantially hurt and often feel enormously let down. If they are told, “Well, it can’t be an independent inquiry. The trust will do the inquiry themselves” they will not understand where the natural justice is in the Bill. I am disappointed by what I have heard. I was not on the Committee, but I am on the Health Committee and we have looked at the matter independently—not in a report, but in relation to the information that has come through. I honestly thought that the Government were going to open things up and allow natural justice in the NHS.

As a new MP, all too often I have constituents who come to me and say, “Would you take my case to the ombudsman?” Naturally we have to go through the bureaucratic process of going to the trust and making a
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formal complaint. My constituents say, “Why? It’s the trust that’s let us down. It’s the trust that made the mistakes.” How on earth are we going to have confidence in the NHS if we tell them, “Don’t worry. We’ve got a brand new Bill. Everything is going to be fine. And, by the way, the trust is going to make the inquiry into your complaint.” That is not going to work.

The Minister should think about this matter carefully. If it were his children or family and he had cause to seek redress, would he be happy to go to the same management and the same people who had been treating his loved ones and perhaps made mistakes? That is where the danger in not accepting the provisions lies. We need confidence in the NHS. The NHS is going through a difficult time.

Mr. Simon: I understand what the hon. Gentleman is saying and I appreciate the sincerity of his intent, but, in common with hon. Members across the Opposition Benches, he is missing the fundamental point that the Bill is about the process during which the NHS investigates itself. It is not about these other things. In his example, the alternative is for every case to go straight to the ombudsman. That should not happen, because the NHS is bound to investigate itself and the Bill is about how it does that.

Mike Penning: In all sincerity, I understand where the hon. Gentleman is coming from. However, the object of any such Bill is the trust of the public—our constituents—who are using the service. I was not saying, in any shape or form, that we should go from the patient having problems and needing redress straight to the ombudsman. However, as the Bill stands, we still have the trust investigating itself. We have moved away from that in other areas of government. The police used to investigate themselves. They do not do that any more because the public did not trust the methodology. We have moved away from that. I am not saying we should move straight to the ombudsman; I am saying that trust and natural justice should be addressed, which I am sure was the intention of the Bill at the start. That is not going to happen unless there is independence.

Dr. William McCrea (South Antrim) (DUP): Does the hon. Gentleman agree that openness and independence are essential to gain confidence in the community and to provide a major protection for the excellent members of the NHS?

Mike Penning: I could not agree more. The hon. Gentleman is spot on.

If we had independence it would very much help the professionals who do such a fantastic job in the NHS—those in the management structure and the doctors and nurses who are so worried. The natural assumption is that when another complaint comes in, the walls will go up. Whether or not that is true, it is the perception in the NHS and among patients. I cannot stress how strongly I feel about this matter. We have started to see openness in the NHS: patients can see their records now, which they never used to be able to do. I am sure that the Minister acts in good faith, but I
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say to him that this part of the Bill is fundamentally wrong. It should be about natural justice, and we will not gain that if the measure lacks independence.

Mr. Graham Stuart: We have heard a very powerful speech that goes to the heart of the issue, which is the patient experience. It is not possible for the House to focus too much on the position of someone who has been wronged by the system and has a great sense of grievance. In the system today, as the Government have described, such people all too often feel that their complaint is not taken seriously, they feel that an explanation has not been provided and they do not receive an apology.

Like my hon. Friend the Member for Hemel Hempstead (Mike Penning), I recognise that the Government and the Minister are sincere in their desire to create a decent redress scheme. Unfortunately, the more I have seen of the Bill and its proceedings, the clearer it has become that it is fundamentally flawed. Fault and fact finding will not be separated. The hon. Member for Birmingham, Erdington (Mr. Simon) is right to challenge the notion that the NHS investigates itself. It has been used by Opposition Members to sum up the issue, and it is technically correct. I put it to the hon. Gentleman—I know that he takes a great interest in this matter and is sincere in his views—that the problem is not that the NHS investigates itself but that the trust that is responsible for letting down the individual patient ends up investigating the case.

There are trusts that are poorly run—fortunately not many—trusts in which mistakes happen and trusts that have a culture that is less than adequate. Where the local community feels that that is the case, where individuals have been negligently treated by the trust, the justice that they will receive under the Government’s golden new system is that that trust will investigate itself. That is at the core of our objections to the Bill.

Mr. Richard Benyon (Newbury) (Con): My hon. Friend is making an important point. Is it not important that we look at this matter through the eyes of families of constituents such as mine, who are trying to find any way they can to avoid having to go to court and employ expensive lawyers? They support the principles behind the Bill, but what they really want is a patients’ champion, or a families’ champion, separate from the trust. That is the key point.

Mr. Stuart: My hon. Friend is absolutely right. I ask the Minister not to nit-pick at the concept of independence. It is not a failure on the part of the Opposition to fail to specify precisely which authority will oversee this. Doubtless there are various organisations that could do so, and a contribution from the Government to the discussion on how that could better be done would be useful. Rather than challenging the Conservatives to tell them how to run the Government, as this Government, in an intellectually bankrupt way, too often do, the Minister should tell us why he feels that no such body exists or could be created.

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