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The Bill proposes an out-of-court settlement scheme at the outset, so that redress can be provided much
more quickly to individual patients. The national health service will thereby be encouraged to take a positive approach to identifying mistakes and accepting and acknowledging problems by offering an apology and an explanation to such individuals, and by making financial recompense where necessary.
There is no doubt in my mind about the scheme. I resist amendment No. 1 because it would import the independent legal process into the scheme and turn it into something different by replicating the rights that the patient gets under the second stage legal scheme. If this scheme fails and cannot satisfactorily give redress to the individual concerned, they will still have the right to take forward an independent legal action outside the scheme; they sign nothing away by allowing their case to be proceeded with under the scheme. The scheme does something different.
I understand why the hon. Member for Billericay presses me on the question of independence, on which we have had a useful debate.
Mr. Baron: Will the Minister give way?
Andy Burnham: I give way again.
Mr. Baron: I appreciate the Minister’s generosity in taking interventions and I thank him for that. He and we agree that this scheme should be an alternative to going to court; that is the Government’s and the Opposition’s stated aim. However, does the Minister accept that the scheme’s credibility therefore becomes very important? There is more likelihood of patients not going to court if they have faith in the scheme being presented to them. The best way of having faith in the scheme is ensuring that it has credibility, and the best way of ensuring that is to ensure that it is truly independent. Otherwise, many patients will come to the conclusion that it is not independent and that there is no change from the present situation. They have had the internal system many times before and now they want something different. The difference that they want is independence.
Andy Burnham: There is a built-in incentive for trusts to settle under the scheme because if they fail to do so, they face the prospect of duplicating effort and going through a further legal battle. The fact that the scheme contains a built-in incentive for trusts to settle will help to build faith in it. That is precisely why my hon. Friend the Member for Birmingham, Erdington tabled his new clause, putting a positive duty on seeking resolution, thereby avoiding the need to go to the courts. He was absolutely right about that, but we have provided for independent oversight of the scheme through the ability of individuals to take their case to the parliamentary ombudsman. People can ask the ombudsman to ascertain whether or not a case was adequately investigated and the process handled properly—a responsibility that the ombudsman has welcomed.
In dealing with issues raised by the hon. Member for Wyre Forest (Dr. Taylor), I would argue strongly that the success of the scheme will be judged by the reduction in the number of cases that go up to the second level. I would like to see a substantial reduction
of cases going up to the Healthcare Commission level or on to the courts. It is precisely because the first stage of the investigation is inadequate that people feel that they have to go up to the higher level and it has to be right to encourage the NHS to do a better job at that first stage. We will thus avoid the need for cases to be passed up to the Healthcare Commission or the courts.
We have had a long debate about the scheme that we propose and the costly, bureaucratic, complicated scheme that the Opposition are seeking to impose on us. They are asking us to accept a bunch of amendments that, quite frankly, have not been thought through and are completely chaotic. I will not go there, so I ask my hon. Friends not to accept such a proposition and to resist the amendments.
Mr. Baron: It will not surprise you, Mr. Deputy Speaker, to learn that I am somewhat disappointed by the Minister’s response. I do not deny his good intentions in wanting to create an alternative to going to the courts. The problem is that the scheme in the Bill does not reflect patient priorities. What patients want more than anything else is an explanation, an apology if due, and an honest assessment of the facts. Very often, compensation is a secondary consideration, but the Minister’s proposals risk putting compensation in front of explanation when it comes to the operation of the scheme.
Patients want to ensure that the lessons have been learned for the benefit of others. I am sure that the Minister would not disagree with that, but if we are to achieve it, we need an open and honest examination of the facts. There can be nothing more open and honest than having an independent person from outside the trust coming in to oversee the investigation of the trust itself. I do not understand why the Government are so worried about someone coming in from outside to investigate the facts. If we are serious about changing the culture within the NHS, ensuring that it learns from its mistakes and that investigations are open and transparent, there is no better way than ensuring that the person overseeing the investigation is independent. Otherwise, what does the NHS have to hide?
Again, with regard to the Minister’s comments about bureaucracy—it was a throwaway line, but he referred to it again—he was very wide of the mark. We are not proposing to create a bureaucracy. The Government have admitted that they are suggesting a two-stage process, and we accept that it is a two-stage process: the examination of the facts and then an assessment of the liability by the NHSLA. The infrastructure for the first, fact-finding stage is already in place.
All we are suggesting is that the person who oversees the investigation must be independent of the trust. We are not suggesting the creation of a massive bureaucracy, and I suggest that the Minister does not understand that fact and that it is a question of who oversees the investigation itself. For those reasons, I am afraid that I have not been persuaded by the Minister’s arguments and I will press the amendment to a Division, to test the opinion of the House.
Question put, That the amendment be made:—
The House divided: Ayes 170, Noes 265.
AYES
Afriyie, Adam
Alexander, Danny
Amess, Mr. David
Arbuthnot, rh Mr. James
Bacon, Mr. Richard
Baldry, Tony
Baron, Mr. John
Bellingham, Mr. Henry
Benyon, Mr. Richard
Bercow, John
Binley, Mr. Brian
Blunt, Mr. Crispin
Boswell, Mr. Tim
Bottomley, Peter
Brake, Tom
Brokenshire, James
Brooke, Annette
Browne, Mr. Jeremy
Burns, Mr. Simon
Burrowes, Mr. David
Burstow, Mr. Paul
Burt, Alistair
Burt, Lorely
Cable, Dr. Vincent
Carmichael, Mr. Alistair
Carswell, Mr. Douglas
Chope, Mr. Christopher
Clark, Greg
Clarke, rh Mr. Kenneth
Clegg, Mr. Nick
Clifton-Brown, Mr. Geoffrey
Conway, Derek
Cormack, Sir Patrick
Cox, Mr. Geoffrey
Crabb, Mr. Stephen
Curry, rh Mr. David
Davies, Philip
Davies, Mr. Quentin
Djanogly, Mr. Jonathan
Dorries, Mrs. Nadine
Duddridge, James
Evennett, Mr. David
Fabricant, Michael
Fallon, Mr. Michael
Featherstone, Lynne
Field, Mr. Mark
Francois, Mr. Mark
Fraser, Mr. Christopher
Gale, Mr. Roger
Garnier, Mr. Edward
Gauke, Mr. David
George, Andrew
Gidley, Sandra
Goodman, Mr. Paul
Gove, Michael
Gray, Mr. James
Green, Damian
Greening, Justine
Greenway, Mr. John
Grieve, Mr. Dominic
Hammond, Mr. Philip
Hammond, Stephen
Hancock, Mr. Mike
Hands, Mr. Greg
Harper, Mr. Mark
Harris, Dr. Evan
Heald, Mr. Oliver
Heath, Mr. David
Heathcoat-Amory, rh Mr. David
Hemming, John
Herbert, Nick
Hoban, Mr. Mark
Hollobone, Mr. Philip
Holloway, Mr. Adam
Horam, Mr. John
Horwood, Martin
Howarth, David
Huhne, Chris
Hunt, Mr. Jeremy
Hurd, Mr. Nick
Jack, rh Mr. Michael
Jackson, Mr. Stewart
Jenkin, Mr. Bernard
Johnson, Mr. Boris
Jones, Mr. David
Kawczynski, Daniel
Key, Robert
Kirkbride, Miss Julie
Lait, Mrs. Jacqui
Lancaster, Mr. Mark
Lansley, Mr. Andrew
Laws, Mr. David
Leech, Mr. John
Letwin, rh Mr. Oliver
Lewis, Dr. Julian
Liddell-Grainger, Mr. Ian
Loughton, Tim
Luff, Peter
Mackay, rh Mr. Andrew
Main, Anne
Maples, Mr. John
May, rh Mrs. Theresa
McCrea, Dr. William
McLoughlin, rh Mr. Patrick
Miller, Mrs. Maria
Mitchell, Mr. Andrew
Mulholland, Greg
Murrison, Dr. Andrew
Neill, Robert
Newmark, Mr. Brooks
O'Brien, Mr. Stephen
Öpik, Lembit
Ottaway, Richard
Paice, Mr. James
Pelling, Mr. Andrew
Penning, Mike
Penrose, John
Prisk, Mr. Mark
Pritchard, Mark
Pugh, Dr. John
Randall, Mr. John
Redwood, rh Mr. John
Reid, Mr. Alan
Rifkind, rh Sir Malcolm
Robertson, Mr. Laurence
Robinson, Mrs. Iris
Robinson, Mr. Peter
Rogerson, Mr. Dan
Rosindell, Andrew
Rowen, Paul
Ruffley, Mr. David
Russell, Bob
Sanders, Mr. Adrian
Shapps, Grant
Smith, Sir Robert
Soames, Mr. Nicholas
Spelman, Mrs. Caroline
Spicer, Sir Michael
Spink, Bob
Stanley, rh Sir John
Steen, Mr. Anthony
Stuart, Mr. Graham
Stunell, Andrew
Swayne, Mr. Desmond
Swinson, Jo
Swire, Mr. Hugo
Syms, Mr. Robert
Taylor, Matthew
Taylor, Dr. Richard
Teather, Sarah
Thurso, John
Turner, Mr. Andrew
Tyrie, Mr. Andrew
Vara, Mr. Shailesh
Villiers, Mrs. Theresa
Walker, Mr. Charles
Wallace, Mr. Ben
Walter, Mr. Robert
Waterson, Mr. Nigel
Watkinson, Angela
Webb, Steve
Whittingdale, Mr. John
Wiggin, Bill
Willetts, Mr. David
Williams, Mark
Williams, Mr. Roger
Willott, Jenny
Wilson, Mr. Rob
Winterton, Sir Nicholas
Yeo, Mr. Tim
Tellers for the Ayes:
Andrew Selous and
Mr. Tobias Ellwood
NOES
Abbott, Ms Diane
Ainsworth, rh Mr. Bob
Alexander, rh Mr. Douglas
Allen, Mr. Graham
Anderson, Mr. David
Anderson, Janet
Armstrong, rh Hilary
Atkins, Charlotte
Austin, Mr. Ian
Austin, John
Bailey, Mr. Adrian
Baird, Vera
Banks, Gordon
Barron, rh Mr. Kevin
Bayley, Hugh
Benton, Mr. Joe
Berry, Roger
Betts, Mr. Clive
Blackman, Liz
Blackman-Woods, Dr. Roberta
Blizzard, Mr. Bob
Borrow, Mr. David S.
Bradshaw, Mr. Ben
Brennan, Kevin
Brown, Lyn
Brown, rh Mr. Nicholas
Brown, Mr. Russell
Browne, rh Des
Bryant, Chris
Buck, Ms Karen
Burden, Richard
Burgon, Colin
Burnham, Andy
Butler, Ms Dawn
Byrne, Mr. Liam
Cairns, David
Caton, Mr. Martin
Cawsey, Mr. Ian
Challen, Colin
Chaytor, Mr. David
Clapham, Mr. Michael
Clark, Paul
Clarke, rh Mr. Charles
Clarke, rh Mr. Tom
Coaker, Mr. Vernon
Coffey, Ann
Connarty, Michael
Cook, Frank
Cooper, Yvette
Corbyn, Jeremy
Creagh, Mary
Cruddas, Jon
Cunningham, Mr. Jim
Cunningham, Tony
David, Mr. Wayne
Davidson, Mr. Ian
Dean, Mrs. Janet
Denham, rh Mr. John
Devine, Mr. Jim
Dhanda, Mr. Parmjit
Dismore, Mr. Andrew
Dobbin, Jim
Dobson, rh Frank
Donohoe, Mr. Brian H.
Doran, Mr. Frank
Dowd, Jim
Drew, Mr. David
Eagle, Angela
Eagle, Maria
Efford, Clive
Ellman, Mrs. Louise
Engel, Natascha
Ennis, Jeff
Farrelly, Paul
Fisher, Mark
Fitzpatrick, Jim
Flello, Mr. Robert
Flint, Caroline
Flynn, Paul
Follett, Barbara
Foster, Mr. Michael (Worcester)
Foster, Michael Jabez (Hastings and Rye)
Francis, Dr. Hywel
Gapes, Mike
George, rh Mr. Bruce
Gerrard, Mr. Neil
Gibson, Dr. Ian
Goggins, Paul
Goodman, Helen
Griffith, Nia
Griffiths, Nigel
Grogan, Mr. John
Gwynne, Andrew
Hall, Mr. Mike
Hall, Patrick
Hamilton, Mr. David
Hamilton, Mr. Fabian
Harris, Mr. Tom
Healey, John
Henderson, Mr. Doug
Hendrick, Mr. Mark
Heppell, Mr. John
Hewitt, rh Ms Patricia
Heyes, David
Hill, rh Keith
Hillier, Meg
Hodge, rh Margaret
Hodgson, Mrs. Sharon
Hood, Mr. Jimmy
Hoon, rh Mr. Geoffrey
Hope, Phil
Hopkins, Kelvin
Howells, Dr. Kim
Hoyle, Mr. Lindsay
Hughes, rh Beverley
Humble, Mrs. Joan
Hutton, rh Mr. John
Iddon, Dr. Brian
Illsley, Mr. Eric
Ingram, rh Mr. Adam
Irranca-Davies, Huw
Jackson, Glenda
James, Mrs. Siân C.
Jenkins, Mr. Brian
Johnson, rh Alan
Johnson, Ms Diana R.
Jones, Mr. Kevan
Jones, Lynne
Jones, Mr. Martyn
Joyce, Mr. Eric
Kaufman, rh Sir Gerald
Keeley, Barbara
Keen, Alan
Keen, Ann
Kelly, rh Ruth
Kemp, Mr. Fraser
Kennedy, rh Jane
Khabra, Mr. Piara S.
Kidney, Mr. David
Ladyman, Dr. Stephen
Lammy, Mr. David
Laxton, Mr. Bob
Lazarowicz, Mark
Lepper, David
Levitt, Tom
Lewis, Mr. Ivan
Linton, Martin
Lloyd, Tony
Love, Mr. Andrew
Lucas, Ian
MacDougall, Mr. John
Mackinlay, Andrew
MacShane, rh Mr. Denis
Mactaggart, Fiona
Mallaber, Judy
Mann, John
Marris, Rob
Marsden, Mr. Gordon
Marshall, Mr. David
Martlew, Mr. Eric
McAvoy, rh Mr. Thomas
McCabe, Steve
McCarthy, Kerry
McCarthy-Fry, Sarah
McDonnell, John
McFadden, Mr. Pat
McFall, rh Mr. John
McGuire, Mrs. Anne
McIsaac, Shona
McKechin, Ann
McKenna, Rosemary
Merron, Gillian
Michael, rh Alun
Milburn, rh Mr. Alan
Miliband, rh David
Miliband, Edward
Miller, Andrew
Moffat, Anne
Moffatt, Laura
Mole, Chris
Moon, Mrs. Madeleine
Morgan, Julie
Morley, Mr. Elliot
Mountford, Kali
Mudie, Mr. George
Mullin, Mr. Chris
Munn, Meg
Murphy, Mr. Denis
Murphy, Mr. Jim
Naysmith, Dr. Doug
Norris, Dan
Osborne, Sandra
Owen, Albert
Pearson, Ian
Plaskitt, Mr. James
Pope, Mr. Greg
Pound, Stephen
Prentice, Bridget
Primarolo, rh Dawn
Prosser, Gwyn
Purnell, James
Rammell, Bill
Raynsford, rh Mr. Nick
Reed, Mr. Andy
Reed, Mr. Jamie
Robertson, John
Rooney, Mr. Terry
Ruddock, Joan
Russell, Christine
Ryan, Joan
Salter, Martin
Seabeck, Alison
Sheerman, Mr. Barry
Sheridan, Jim
Short, rh Clare
Simon, Mr. Siôn
Singh, Mr. Marsha
Skinner, Mr. Dennis
Slaughter, Mr. Andrew
Smith, rh Mr. Andrew
Smith, Ms Angela C. (Sheffield, Hillsborough)
Smith, Angela E. (Basildon)
Smith, Geraldine
Smith, rh Jacqui
Snelgrove, Anne
Soulsby, Sir Peter
Southworth, Helen
Spellar, rh Mr. John
Starkey, Dr. Phyllis
Stewart, Ian
Strang, rh Dr. Gavin
Stringer, Graham
Stuart, Ms Gisela
Sutcliffe, Mr. Gerry
Tami, Mark
Taylor, David
Thomas, Mr. Gareth
Thornberry, Emily
Timms, Mr. Stephen
Todd, Mr. Mark
Touhig, Mr. Don
Truswell, Mr. Paul
Turner, Dr. Desmond
Turner, Mr. Neil
Ussher, Kitty
Vaz, Keith
Walley, Joan
Waltho, Lynda
Wareing, Mr. Robert N.
Watson, Mr. Tom
Watts, Mr. Dave
Whitehead, Dr. Alan
Wicks, Malcolm
Williams, rh Mr. Alan
Williams, Mrs. Betty
Wills, Mr. Michael
Winnick, Mr. David
Winterton, Ms Rosie
Woodward, Mr. Shaun
Woolas, Mr. Phil
Wright, Mr. Anthony
Wright, David
Wright, Mr. Iain
Wright, Dr. Tony
Wyatt, Derek
Tellers for the Noes:
Mr. Frank Roy and
Jonathan Shaw
Question accordingly negatived.
Amendment made: No. 11, page 4, line 23, at end insert—
(a) make provision for the findings of an investigation of a case under the scheme to be recorded in a report, and
(b) subject to subsection (2B), make provision for a copy of the report to be provided on request to the individual seeking redress.
(2B) A scheme may provide that no copy of an investigation report need be provided—
(a) before an offer is made under the scheme or proceedings under the scheme are terminated, or
(b) in such other circumstances as may be specified.’.—
[Andy Burnham.]
4.45 pm
Andy Burnham: I beg to move amendment No. 12, in page 4, line 41, leave out ‘subsection (2)’ and insert ‘subsections (2) and (4)’.
Mr. Deputy Speaker (Sir Alan Haselhurst): With this it will be convenient to discuss the following: Amendment No. 5, in page 5, line 1, leave out paragraph (a).
Government amendments Nos. 13 and 14.
Amendment No. 7, in page 5, line 10, leave out subsection (3).
Andy Burnham: Clause 8(1)(b) enables the redress scheme to provide, in connection with proceedings under the scheme, for services other than legal advice. [Interruption.]
Mr. Deputy Speaker: Order. I am sorry to interrupt the Minister, but will hon. Members who are not staying for the debate either remain silent or leave?
Andy Burnham:
In the statement of policy published in November 2005, we made it clear that, when evidence from an independent medical expert is necessary, it is intended that the scheme authority will seek to ascertain the wishes of the patient to reach agreement on an acceptable person. If patients are to
have faith in the system, it is important for them to have confidence in that medical expert and in the expert’s independence.
Amendments Nos. 12 and 15 make it clear that, if the scheme provides for the services of medical experts in certain circumstances, and if an individual case falls within those circumstances, the medical expert will be jointly instructed by the scheme authority and the individual seeking redress. Therefore, when the services of medical experts are provided for under the scheme, the medical expert will be an agreed independent expert and the services of that expert will be provided without charge to the individual. For the avoidance of doubt, I repeat that the expert will be independent.
As the hon. Member for Southport (Dr. Pugh), who has now joined us, said in Committee, it would not be reasonable to expect a lay person to instruct a medical expert on a complex issue. That is a fair point. I can reassure the hon. Gentleman that we have the existing power in clause 8(1)(a) to enable legal advice to be made available to individuals when it is needed at an earlier stage under the scheme. Legal advice is not restricted to the stage at which an offer is made. We specifically have in mind that legal advice may be appropriate to enable an individual to be fully informed and involved in the joint instruction of an expert.
Although amendment No. 15 makes specific reference to medical experts
“instructed jointly by the scheme authority and the individual seeking redress under the scheme”,
I can reassure Members that it is our firm intention that the individual seeking redress will have access to appropriate legal advice without charge. However, amendment No. 5 would remove the flexibility to provide free legal advice earlier. We want that flexibility: by rigidly excluding free legal advice, the scheme will not assist patients.
The argument for removing clause 8(1)(a) produced in Committee was that legal advice was not necessary during the fact-finding process. Investigation ascertains what happened, and for that no legal advice is necessary. I have to say that I do not agree with that assessment. For example, there will be circumstances in which it will be appropriate for there to be instruction of medical experts to help ascertain the facts of a particular case. Government amendments Nos. 12 and 15 clarify that, where provision is made for the services of medical experts, the medical experts are to be jointly instructed by the scheme authority and the individual seeking redress. I consider it entirely reasonable, where the patient wishes it, for legal advice without charge to be made available in those circumstances. Many patients will be unaware of the issues involved in jointly instructing a medical expert and it would be unreasonable to expect a lay person to do so without advice. If the redress scheme is to be effective and to gain the confidence of patients, there needs to be appropriate support throughout the process. The aim behind the legal advice is to assist individuals seeking redress. I therefore reject amendment No. 5.
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