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In Committee, the hon. Member for Eddisbury (Mr. OBrien) asked for clarification of clause 8(1)(a). He said, rightly, that it is vital for a legal adviser to know who their client is: they must know to whom they
are providing advice. It was suggested that clarification was required to make it clear whether the legal advice that may be provided under this clause was to be provided to the person seeking redress or to the scheme.
The amendments make it clear that, in relation to clause 8(1)(a), the client is to be the individual seeking redress, rather than, say, the redress scheme. Legal advice may therefore, without doubt, be provided to individuals seeking redress under the scheme. However, I think that it is important to make clear the intention behind clause 8(1)(a). We want to ensure that patients going through the redress scheme can make a genuine, informed choice when presented with options. Clause 8(1)(a) will enable legal advice to be provided to patients, where appropriate, during the schemefor example, to assist with the joint instruction of medical experts. However, I confirm that the intentions behind this clause are to facilitate fact finding and resolution and, equally importantly, to ensure fairness within the system by better enabling patients to make an informed choice. Clause 8(1) provides the flexibility for the provision of services that may help to reach an agreement to settle. The advice provided to the individual remains the property of the individual and would not be disclosed to the scheme authority.
Amendment No. 7 would remove the explicit power in clause 8(3) enabling the scheme to provide that free legal advice has to be supplied by a provider included in a list held by a specified person or body. As drafted, clause 8(3) enables the scheme to provide that free legal advice, whether provided when an offer is made or at an earlier stage, has to be supplied by a provider included in such a list. It is envisaged that the scheme may provide that the list of solicitors firms that will provide legal advice under the NHS redress scheme will be those firms that are authorised by the Legal Services Commission to undertake publicly funded work, and that have agreed to provide advice under the scheme.
Any organisation undertaking clinical negligence work under an LSC contract must hold a specialist quality mark in clinical negligence. The LSC awards the quality mark to individual offices. To gain the mark, the firm or office must have a solicitor who is on either the Law Society or the Action against Medical Accidents panel to ensure the work undertaken will be under the supervision of an experienced individual solicitor. We intend that approved providers of legal advice under the redress scheme will be restricted to firms that have achieved the quality mark status in clinical negligence. Clause 8(3) seeks to guarantee that the legal advice offered under the scheme is of a suitable and high standard, and I therefore oppose the amendment.
In a publicly funded scheme, it is appropriate that solicitors funded to provide services to patients meet a guaranteed, appropriate standard. It is also appropriate that the advice is provided by a solicitors office with the appropriate level of specialist training. I therefore reject amendment No. 7.
The Government amendments provide some clarification of issues raised in Committee, especially on the joint appointment of medical experts and the status of legal advice provided to individuals. The amendments strengthen the Bill further and I urge hon. Members to accept them.
Mr. Baron: The purpose of our amendments is to restrict the role of lawyers, except where legal rights are affectedthat is, at the offer stage. The Minister has accepted that the policy underlying the Bill is to provide a genuine alternative to litigation. Under the redress scheme, offers may be made on the basis of the NHSLAs internal assessmentnot its determinationof liability.
Legal rights are not determined but remain intact, as the person concerned can resort to litigation at any time. Accordingly, it is difficult to see why lawyers need to be involved before an offer is made or a settlement is considered, when legal rights may be waived as part of a compromise agreement.
The Secretary of State agreed with that sentiment on Second Reading. She said:
I am quite certain that lawyers will argue...that much more legal advice should be made available all the way through the process. If we do that, however, we might as well stick with the existing situation in which people seek legal advice and go to court.[ Official Report, 5 June 2006; Vol. 447, c. 33.]
However, the Government amendments show that the Government have changed their position. They now want to involve lawyers, in a misguided attempt to enhance the schemes credibility. I believe that that will make the process more adversarial. Involving lawyers risks causing whoever is involved in the fact-finding investigation to clam up. We do not want lawyers asserting or defending legal rights, as that will import into the process considerations of fault and defensiveness, whereas we believe that the investigation needs to be open and transparent. The Government proposals are the worst of all worlds, and will add to precisely that blame culture that the Minister says that he wants to avoid.
In addition, there is the question of cost. The more lawyers involved in the investigation, the greater will be the costto the scheme and to the NHS and at the expense of patient care. In other words, if more money is soaked up in lawyers fees, less will be available for patient care.
The NHSLA annual report for 2006 came out a couple of days ago and made reference to the problem. The Government may think that only the Opposition are concerned that ever higher costs will divert resources away from patient care, but the report states:
The Authority remains concerned about the relatively high legal costs which are often incurred in clinical negligence claims, and which do not benefit either injured patients or the NHS.
Yet the Government want to involve more lawyers earlier in the process.
The added costs might be worth while if it could be shown clearly that they added value, but the evidence suggests that they would not. The objective measure of the performance of so-called specialist lawyers is worth considering. In a letter to a member of the public dated 7 November 2002, the Legal Services Commission stated that, since August 1999, only specialist lawyers had been able to start new cases on legal aid. In 2000-01, the overall success rate in clinical negligence cases was 23 per cent. for specialist lawyers, and 24 per cent. for non-specialist lawyers.
According to a written answer to me on 17 January 2006, in the last year for which figures were available, the overall success rate for legally aided clinical
negligence cases had remained at 23 per cent. The figures are revealing. First, they show that about five or six years ago, when ongoing legally aided clinical negligence cases had specialist and non-specialist lawyers, the performance of both categories of lawyers was roughly comparable. Secondly, even though legal aid was made available only to specialist lawyers in 1999, the figures show that there has been no improvement since then in excluding opportunistic and unsustainable claims.
We feel that lawyers should be restricted to the offer stage. Involving lawyers would replicate the problems of the adversarial litigation system. It would add to the cost of the redress process and subvert its functions, with the focus on compensation rather than on explanation. In many cases, involving lawyers would be the worst of all worlds; it would import the bad aspects of the judicial processexpensive lawyers, protracted cases and complexitywithout the benefits of finality and independence. It would certainly add considerably to the cost of the schememoney that would be better spent on patient care
It being Five oclock, Mr. Deputy Speaker put forthwith the Question already proposed from the Chair, pursuant to Order [5 June].
Mr. Deputy Speaker then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.
Amendment proposed: No. 5, in page 5, line 1, leave out paragraph (a). [Mr. Baron.]
Amendments made: No. 13, in page 5, line 1, leave out in connection with proceedings under the scheme.
No. 14, in page 5, line 2, at end insert
to individuals seeking redress under the scheme.
No. 15, in page 5, line 12, at end insert
(4) A scheme that makes provision for the provision of the services of medical experts must provide for such experts to be instructed jointly by the scheme authority and the individual seeking redress under the scheme.. [Andy Burnham.]
Amendments made: No. 16, in page 5, line 29, at beginning insert Subject to subsection (2A),.
No. 17, in page 6, line 16, leave out paragraph (j).
No. 18, in page 6, line 17, at end insert
(2A) A scheme must require a member of the scheme to prepare and publish an annual report about cases involving the member that are dealt with under the scheme and the lessons to be learnt from them.. [Andy Burnham.]
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