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I would rather hear from the Minister why it is impossible to imagine setting up a body to oversee these matters and ensure that there is independence. We are in an invidious position: the Government, who started out with the best intentions, are suggesting that the trust should be the investigator, the defendant and, to an extent, the jury.
The Minister made it clear that there is a truly alarming additional element. Although he saysand I welcome itthat in nearly all cases the report into an incident will be made available to the patient concerned, unfortunately there are no guarantees on how often that would happen. The trust at fault could investigate itself, then refuse to present the report to the patient who has been wronged. When the Minister goes to sleep tonight, he must accept, in all good conscience, that he is a long way from the position that he wanted to secure when he first sought to provide a fairer system of justice for patients who have been wronged.
Mr. Stuart: I cannot think of any reason. The Minister implied that he would like patients always to be provided with a copy of the report. He suggested that when it was not the patient but someone else who asked for the report, it should not necessarily be provided, but such a provision could be included in the Bill. I think that hon. Members in both Opposition parties would urge the Minister to make that change, even at this late stage.
I am rightly being urged to keep my speech short, but, before I conclude, I ask the Minister to think about the clinicians point of view. Imagine that, in a trust such as the one that I have described, there was a clinician who was not too popular with the trusts management, and a complaint was received. Who investigates it? Does an independent fact finder who is experienced in such investigations, and to whom we can look for an objective assessment of the facts, come in from outside? No, the trusts management, with whom the clinician may have a fractious relationship, decides on the facts of the case, writes up the report and may conceivably release it to the patient. Quite possibly, that patients first act will be to stop at the local newspaper office on his way to the lawyers.
The clinician may find himself in that position. The Ministers suggestionthis is the point to which I would like him to respondthat the clinician will be happy with that, and that it will lead to openness, is absurd.
Andy Burnham: I will not respond to that, but I want to ask the hon. Gentleman a question. Does he accept that it is standard practice, not just in the public sector but in the private sector, that when a complaint is brought against an organisation, the first stage should be an investigation carried out by the organisation itself? Is the hon. Gentleman suggesting that that does not happen in the private sector? If someone sought to escalate a case before such an investigation had happened, they would normally be told to take the matter back to the organisation for investigation and response.
Mr. Stuart: The Minister makes a point with some power to it, but the Government introduced the Bill precisely because the NHS is not investigating itself in that way. It is because the matter is critical, not only to the patient but to the country as a whole, that independence is needed. The police have similar status, and it is similarly important that they should conduct themselves fairly, but it has been decided that they should not investigate themselves.
The Minister said at the beginning of his contribution that there will not be an independent investigation. That is the message that the Government are sending out. The Minister is telling patients who have been wronged by trusts across the country that there will be no independent investigation. The Government will realise, months or years from now, that it is a mistake to send out that signal and to destroy the good intentions that they had when they set out on this path.
Mr. Walker: Thank you, Mr. Deputy Speaker, for calling me to speak in this important debate. In Committee I thought that, by and large, this was a good Bill. There were some flaws in it, but on the whole it was facing in the right direction. However, I am becoming concerned.
The Bill raises the question of who is in charge of a hospital trust when a mistake is made. The answer, of course, is the chief executive. The buck stops with him. If a pattern of mistakes emerges, there is a danger that vested interests will begin to take hold. Would a chief executive therefore begin to take a much closer interest in the investigation process, perhaps to make sure that the full implications of the mistakes made do not see the light of day, or that if they do, they are kept well away from his office?
There is a need for trust and transparency in the system. The public sectorthe NHS and the police, as my hon. Friend the Member for Hemel Hempstead (Mike Penning) saidis at the best of times viewed with a degree of cynicism by the public. There is a concern among many of my constituents, and no doubt among the public in general, that if faced with an investigation that could be embarrassing, the NHS will close ranks around the senior management team and perhaps the clinicians concerned.
The danger arises if a pattern starts to emerge. We discussed reports being made public or not. Surely if a pattern is emerging, reports may be withheld because they will prove that failures in the system have not been addressedthat something that was identified a year ago has happened time and again. For the sake of my
constituents and others, a degree of independence would be wholly justified. Perhaps a complaint against a trust should be investigated by another trust. We see that happening in the police, where one force may investigate a complaint against another.
I know that the Minister is a hugely decent and honourable gentleman and I would not wish to waste his time by making puerile suggestions. I join my hon. Friends in urging him to find some way of injecting an element of independence into the investigation procedure, perhaps by allowing a trust other than the one being investigated to look into the complaint or the case being presented.
Mr. Hurd: I shall add one brief point. The Minister and the Government are deluding themselves in their claim that the Bill will transform the culture of the NHS. I say that for two reasons. First, we on the Conservative Benches are learning a little about culture change, and we know that it requires strong management and strong signals of change. The more I look at the Bill, the more it strikes me that it does little more than formalise what already happens. I cannot see that that is a strong signal of change to the NHS.
Secondly, because necessarily at no point in the process is the legal threat removedit remains as a sword potentially hanging over the situation at all timesI cannot see how that will make the NHS any more welcoming of a breathing space to face up to its failings or become more active in identifying problems. That is a delusion it would be much better to focus, as we do, on how the patients will respond to the opportunity. They will have two questions first, who will find out the facts? The Government say that will be done by the very trust that made the mistake. Secondly, who will define liability? The answer is the very agency whose priority is to defend the NHS. It is very difficult to see how patients will have any more confidence in the new system. It would be far better to focus on a guarantee of independence, as we propose, to find the facts.
Dr. Richard Taylor: I am passionately on the side of those who want complete independence in the process. The Government have a short memory. The old NHS complaints procedure was not independent, in that the complaints convenor was time and again an employee of the trust or very often a non-executive director of the trust. That happened in my area. Only a minuscule number of complaints got through that trust employee. The Government then changed the NHS complaints procedure. Certainly, the first stage is the internal investigation, but then it moves on to the wider, completely independent part supervised by the Healthcare Commission.
I will give an example from personal memory. Rather a long time ago, I was a doctor doing my national service in the RAF. I had just got married. Within weeks of that, I was posted unaccompanied to Christmas Island. My commanding officer, who was the same sort of lovely, helpful, avuncular figure as Mr. Speaker himself, told me that an officer had the right to appeal to the Secretary of State for Air. So I came up to London in my best uniform to appeal to him, but who did I see? It was merely the lowly squadron leader who had given me the posting.
Mr. Walker: I hate to pick at open wounds, but it is a little like the Prime Minister saying, Yes, I recognise there is a problem with cash for peerages and the Labour party is going to investigate it. What confidence would the public have in that sort of statement?
The Minister has said that the redress scheme will be owned by the NHS. I entirely agree that the investigation has to be carried out, but there must be independent oversight for it to gain any confidence among the ordinary people. I understand that he said in Committee that he favoured a scheme that encouraged the NHS to own up to mistakes. I agree, but was not he being a little naive? Surely, there has to be independent outside oversight to ensure that an investigation is full and open and allows no cover-up.
Amendments Nos. 1, 2, 3 and 6 seek completely to separate fact-finding investigations under the redress scheme from fault finding. The scheme authority would have no role in the investigation and would be unable to provide guidance or advice to scheme members about investigations. The opportunity for a unified and complete scheme for redress would be lost. I reject the amendments and encourage my hon. Friends to do likewise.
suitably qualified patient redress investigators
who were to conduct the fact-finding investigation in each case and to be overseen by the Healthcare Commission, which was also to be responsible for maintaining and publishing a list of the investigators. On Second Reading, the hon. Member for South Cambridgeshire (Mr. Lansley) defended that proposal. In Committee, we saw it slowly unravel as the hon. Member for Billericay (Mr. Baron) sought to explain it to us. When we asked him to describe exactly how it would work and, importantly, how much it would cost, he said:
at the top we have one person, an NHS redress investigator, who is truly independent and oversees the fact-finding stage.[ Official Report, Standing Committee B, 13 June 2006; c. 43.]
That is not what the amendment in the other place provided for. It clearly stated that the patient redress investigators were to conduct the investigation of the facts of a case and produce a report on the principal findings.
In Committee, the redress investigator was no longer to conduct the case but to play an oversight role. The proposal somehow changed between Second Reading and Committee. We now have a new proposal whereby an individual would be independent of the trust. However, the hon. Member for Billericay has provided no clarity about who would employ that individualanother NHS trust, the Healthcare Commission or a different organisation. We have no idea of the proposed number of independent investigators, yet we are asked
to accept an amendment that includes no detail, with complete policy confusion behind it.
The hon. Gentleman challenged me on several occasions by saying that I was opposed to independence and had a fundamental objection to it. I hope that I partly convinced him that the Bill and the amendments that we have tabled today will mean more openness and transparency. There is independence in the scheme in that we can use independent medical experts. Independent legal advice will also be provided to individuals at the end of the scheme.
However, if the hon. Gentleman is asking me to explain again the purpose of the scheme, I stress that we are considering the national health service doing better what it should do ordinarilyinvestigate complaints brought by patients and not cause huge delay and frustration when patients try to have a complaint investigated. We are considering the NHS conducting the first stage of complaints better.
My hon. Friend the Member for Birmingham, Erdington (Mr. Simon) was right to say that the Opposition have consistently misunderstood the point. Why would we replicate the legal process in the scheme? It is an out-of-court settlement scheme. Why on earth would we build into it all the expense of the independent legal process?
Steve Webb: When the police investigate themselves, people are not happy and the Government have therefore created an Independent Police Complaints Commission. Why is that okay for the police but not the NHS?
Andy Burnham: Again, Opposition Members are confused. There is a second stage complaints process in the NHS. The Healthcare Commission deals with that. However, if the hon. Gentleman wrote to the commission today with a complaint from a constituent, I am confident that it would write back and ask him whether he had first complained to the relevant trust and what its explanation was. If he took a complaint about a police force to the Independent Police Complaints Commission, its response would be the same. It would not deal with an initial complaint by an individual constituent.
Mr. Simon: Does my hon. Friend agree that Opposition Members again fundamentally misunderstand our constituents position? It is not the case that they do not want to complain to the relevant trust, that they do not want the trust to investigate itself or that they want immediate redress through an independent arbiter. My constituents want to complain to the trust that has done what they perceive to be wrong. They want the people responsible to take them seriously, consider the complaint in depth, find the solutions and provide some answers. The Bill simply creates a process and provides a huge array of tools to enable trusts to do that. That is the purpose of the measure, which Opposition Members have fundamentally failed to understand throughout our proceedings.
Andy Burnham: My hon. Friend is right and there is probably no point in my saying more, but I shall say a little. He has expressed exactly what our constituents want when they come to our advice surgeries. They want their local trusts to see for themselves the mistake that has been made, acknowledge it, apologise, explain and take steps that will stop that happening to other local peopletheir neighbours who live in the same community. That is what they want.
When I was sitting through some of the tripe that we heard from Opposition Members, I got the impression that they have a distinct distrust of the national health services ability to carry out fair investigations into complaints brought to it. [Interruption.] It is nothing to do with the Government; these are complaints that are brought to NHS trusts. The hon. Member for Hemel Hempstead (Mike Penning) said that he could not take those complaints to trusts because they would not have the trust of the public; he used words exactly to that effect.
Mr. Baron: Let us be absolutely clear. There is already an independent structure for the making of complaints; what we are talking about here is qualifying liabilities in tort. The Minister risks confusing the two, so let us restrict our comments to qualifying liabilities in tort. He suggested that independence can be imported in some way. He has clearly stated that he believes that the scheme is not independent and he suggests that importing lawyersso to speakwill somehow make the scheme independent. The trouble is that lawyers do not turn a non-independent scheme into an independent one, because they assert or defend legal rights. I ask the Minister to address that point. In addition, expert medical advice would be available to patients anyway, and that right would be ensuredguaranteedunder our system by the independent person overseeing the investigation. So again, this scheme does not add value.
Andy Burnham: The hon. Gentleman is entitled to draw his own conclusions from my explanations. Let me say again clearly that he is right in that, for a case to qualify under the scheme, there has to be a recognition of a liability in tort, and that it then follows that there is a likelihood that compensation or other recompense might be due under the scheme. That is the qualifying gateway for cases dealt with under the scheme. However, we are proposing the breathing space of an out-of-court settlement scheme, so that it is not necessary to go through an expensive and polarised legal process in which people dig in for a long and complicated battle, often to the great frustration of individual patients who are kept waiting for a long time. In many instances, those cases are abandoned or do not come to court.
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