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In Committee, the hon. Member for Eddisbury (Mr. O’Brien) 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 scheme—for 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 solicitor’s 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 affected—that 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 NHSLA’s internal assessment—not its determination—of 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 scheme’s 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 cost—to 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.
5 pm
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 process—expensive lawyers, protracted cases and complexity—without the benefits of finality and independence. It would certainly add considerably to the cost of the scheme——money that would be better spent on patient care—
It being Five o’clock, 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.]
The House divided: Ayes 173, Noes 254.
AYES
Afriyie, Adam
Alexander, Danny
Amess, Mr. David
Arbuthnot, rh Mr. James
Bacon, Mr. Richard
Baldry, Tony
Barker, Gregory
Baron, Mr. John
Bellingham, Mr. Henry
Benyon, Mr. Richard
Bercow, John
Binley, Mr. Brian
Blunt, Mr. Crispin
Boswell, Mr. Tim
Bottomley, Peter
Brady, Mr. Graham
Brake, Tom
Brokenshire, James
Brooke, Annette
Browne, Mr. Jeremy
Browning, Angela
Burns, Mr. Simon
Burrowes, Mr. David
Burstow, Mr. Paul
Burt, Alistair
Burt, Lorely
Cable, Dr. Vincent
Cameron, rh Mr. David
Carmichael, Mr. Alistair
Carswell, Mr. Douglas
Chope, Mr. Christopher
Clark, Greg
Clarke, rh Mr. Kenneth
Clegg, Mr. Nick
Clifton-Brown, Mr. Geoffrey
Conway, Derek
Cox, Mr. Geoffrey
Crabb, Mr. Stephen
Curry, rh Mr. David
Davies, Philip
Davies, Mr. Quentin
Djanogly, Mr. Jonathan
Dorries, Mrs. Nadine
Duddridge, James
Ellwood, Mr. Tobias
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
Gidley, Sandra
Goodman, Mr. Paul
Gove, Michael
Gray, Mr. James
Green, Damian
Greening, Justine
Greenway, Mr. John
Grieve, Mr. Dominic
Hague, rh Mr. William
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
Hendry, Charles
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
Leigh, Mr. Edward
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
Osborne, Mr. George
Ottaway, Richard
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
Rosindell, Andrew
Rowen, Paul
Ruffley, Mr. David
Russell, Bob
Sanders, Mr. Adrian
Shapps, Grant
Simpson, Mr. Keith
Smith, Sir Robert
Spelman, Mrs. Caroline
Spicer, Sir Michael
Spink, Bob
Spring, Mr. Richard
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
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
Williams, Mark
Williams, Mr. Roger
Willott, Jenny
Wilson, Mr. Rob
Winterton, Sir Nicholas
Yeo, Mr. Tim
Younger-Ross, Richard
Tellers for the Ayes:
Andrew Selous and
Mr. David Evennett
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, John
Bailey, Mr. Adrian
Baird, Vera
Banks, Gordon
Barron, rh Mr. Kevin
Bell, Sir Stuart
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
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.
Dowd, Jim
Drew, Mr. David
Eagle, Angela
Eagle, Maria
Efford, Clive
Ellman, Mrs. Louise
Ennis, Jeff
Farrelly, Paul
Fisher, Mark
Fitzpatrick, Jim
Flello, Mr. Robert
Flint, Caroline
Flynn, Paul
Follett, Barbara
Foster, Mr. Michael (Worcester)
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
Hewitt, rh Ms Patricia
Heyes, David
Hill, rh Keith
Hillier, Meg
Hodge, rh Margaret
Hodgson, Mrs. Sharon
Hoey, Kate
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
Jackson, Glenda
James, Mrs. Siân C.
Jenkins, Mr. Brian
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, Edward
Miller, Andrew
Moffat, Anne
Moffatt, Laura
Mole, Chris
Moon, Mrs. Madeleine
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
Plaskitt, Mr. James
Pound, Stephen
Prentice, Bridget
Prentice, Mr. Gordon
Prosser, Gwyn
Purnell, James
Rammell, Bill
Raynsford, rh Mr. Nick
Reed, Mr. Andy
Reed, Mr. Jamie
Robertson, John
Robinson, Mr. Geoffrey
Rooney, Mr. Terry
Roy, Mr. Frank
Ruddock, Joan
Russell, Christine
Ryan, Joan
Salter, Martin
Seabeck, Alison
Shaw, Jonathan
Sheerman, Mr. Barry
Sheridan, Jim
Short, rh Clare
Simon, Mr. Siôn
Simpson, Alan
Singh, Mr. Marsha
Skinner, Mr. Dennis
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
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
Tellers for the Noes:
Mr. John Heppell and
Huw Irranca-Davies
Question accordingly negatived.
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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