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Secondly, I noted the comments of my hon. Friend the Member for Slough (Fiona Mactaggart) and the hon. Member for Somerton and Frome (Mr. Heath) about the importance of advice. One way of bearing down on the costs of legal aid is to give proper advice to those who need it, especially the most needful members of our society, before they get into the legal process. However, is my hon. and learned Friend aware that the LSC has withdrawn its support for a potentially valuable project in Swindon—an advice centre co-ordinating all the advice bodies in the borough in one building? I understand that the LSC feels that the project is no longer part of its purview, but as a result of its withdrawal, Swindon borough council has been left on its own to deal with it. I should be grateful if my hon. and learned Friend will confirm that as part of the review she will look at ways in which her Department can support the council in developing that valuable project.
Vera
Baird: I thank my hon. Friend for that contribution. I am
aware of his correspondence about
bottlenecks and I accept entirely that they can cause considerable
knock-on problems. I am apprised of that problem—as he requested
me to be.
I cannot comment at all on what has occurred with the LSC and the Swindon advice centre. None the less, I undertake to look into the situation and speak to him about it.
Mr. Henry Bellingham (North-West Norfolk) (Con): Does the Minister agree that small market town solicitors are often the lifeblood of local communities and that many small towns could not survive without them? Today’s announcement is not good news for many of those small solicitors, particularly paragraph 7, which points out that they will be paid on completion of their case rather than the number of hours they have worked. That will affect incomes. Obviously, large commercial firms will not suffer, nor will many of the larger regional partnerships, but what discussions is the hon. and learned Lady planning with the Law Society about the impact of the proposals on smaller solicitors?
Vera Baird: I do not accept that there will be a dreadful scenario for small town solicitors. I am impressed by the hon. Gentleman’s conviction that they are the most important thing in many such towns, although I agree that they are an important part of their fabric.
The Law Society has of course been very heavily involved with Lord Carter’s proposals. It has issued a press release this morning, indicating that it takes the view that
“Lord Carter's proposals, if properly implemented”
“a system that is financially sustainable in the long term,”
and the society proposes to work constructively with the Government to try to translate those proposals into a system that will succeed on the ground. Of course neither the system nor the consultation will be confined to urban areas, so I think at least over the summer the hon. Gentleman can rest assured that we shall look very closely at the problems that he has raised.
Dr. Alan Whitehead (Southampton, Test) (Lab): I too thank my hon. and learned Friend for her statement. What impact does she consider that Lord Carter’s proposals will have on the development and regulation of the no win, no fee system? Is it her intention, during the consultation period she has mentioned, to consider those impacts and the regulation of the system outside the legal aid process?
Vera Baird: There are references to the no win, no fee system and a number of other non-legal-aid means of financing cases within Lord Carter’s review. When I go out round the country, those who respond—including practitioners and notforprofit organisations, I imagine—will address their comments to the contents of Lord Carter’s report. Although I am not aware of any immediate proposal to revise the current system, any submissions will be taken very seriously.
Ms Keeble: Northampton is one of the legal aid deserts that have been discussed, to such an extent that I have to send constituents to Birmingham or Oxford to get legal help with certain types of case, despite the best efforts of the community legal service. On the development of the network of community legal advice centres, will the CLS or whoever is overseeing it ensure that legal aid deserts are targeted? I make a plea that we should have such a centre in Northampton, so that my constituents can get proper access to justice to help them with their serious cases.
Vera Baird: Clearly, part of the thrust of Lord Carter’s report and of the Government’s position is that one reason for making the criminal system more efficient is to ensure that more money can be moved over into exactly the kind of work that my hon. Friend is talking about. So I think that I can assure her that that is very much in mind and that her constituency is very much in mind too.
Ms Diana R. Johnson (Kingston upon Hull, North) (Lab): Humberside law centre closed in 2005, which has meant that many of my constituents have been unable to access representation in social welfare law. I wonder whether my hon. and learned Friend will tell me how the Carter review will address our representation problems in Hull.
Vera
Baird: I am aware of the position in Humberside, largely
because my hon. Friend initiated a debate in Westminster Hall about the
demise of that law centre. I have also had discussions, although only
briefly, with the Law Centres Federation leadership about the position
in Humberside. I believe that I am meeting my hon. Friend to discuss it
further in due
course. I understand from the Law Centres Federation—I hope I
have got this correctly—that most of the contracts with the
Humberside law centre have been placed elsewhere, so that there is not
a huge loss of representation, but clearly there must be some because
my hon. Friend has repeatedly said that something should be done. I
look forward to meeting her and hearing more about
that.
Ian Lucas (Wrexham) (Lab): Will my hon. and learned Friend take forward the idea of an audit of advice within particular geographical areas? When I was first elected I was very struck by the multiplicity of agencies and of funding sources that exist in areas, and I am convinced that there is a level of over-provision and overlapping in those sources of advice. Real economies could be made if the local authorities and the Legal Services Commission worked together much more closely.
Vera Baird: I sympathise with my hon. Friend’s comments. There was of course auditing of advice by the community legal service partnerships when they were set up, but I think he is right; not only is there a multiplicity of agencies but there is also a large number of core lines of one sort or other that give advice on debt, housing or consumer affairs. They are lodged in various Departments of Government—the Department of Trade and Industry, the Department for Work and Pensions, the Department for Education and Skills and our own Department. Clearly, the expertise for coordinating the availability of such advice probably lies with the Legal Services Commission, and yes, it is imperative that they are consolidated so that they work in a coherent way, without duplication, and provide an adequate service.
Orders of the Day
NHS Redress Bill [ Lords]
As amended in the Standing Committee, considered.
[Relevant documents: Third Report from the Constitutional Affairs Committee, Session 2005-06, HC 754, on Compensation Culture; Fifth Report from the Committee, Session 2005-06, HC 1009, on Compensation Culture: NHS Redress Bill; and the Government’s responses thereto, Cm 6784.]
‘A scheme must include provision requiring the scheme authority and the members of the scheme, in carrying out their functions under the scheme, to have regard in particular to the desirability of redress being provided without recourse to civil proceedings.’.— [Mr. Simon.]
Brought up, and read the First time.
2.5 pm
Mr. Siôn Simon (Birmingham, Erdington) (Lab): I beg to move, That the clause be read a Second time.
I am delighted to move the motion, and I declare an interest as a trustee of AvMA——action against medical accidents——the leading patient safety charity in this country. I speak to the new clause as a Member of Parliament and not on behalf of that organisation, with which I cannot and do not formally speak. However, I know that, like me, AvMA is grateful to the Minister for having listened to our concerns and those of patients across the country and many other patient and consumer organisations and other stakeholders about the original provisions of the Bill, and for acting on them, as evidenced by not just my new clause but the Government’s amendments, both those that they have tabled today and those that were tabled and made in another place. We are also grateful for the Government’s attitude in Committee, which I think Members will agree was, broadly speaking, most of the time a very constructive and cooperative place.
I mentioned the other Government amendments because my new clause makes sense, and has the force that I believe it can have, only if it is viewed in the context of the other amendments tabled, here and in the other place, by the Secretary of State. Collectively, I hope that they represent a tangible and real response to the three big calls that have been made: first, for measures of independence to be brought to bear where necessary to resolve disputed cases within the NHS redress scheme; secondly, for specialist legal advice or representation to be available, where appropriate, to empower patients—I use the word “empower” rather than “entitle”, which I know, in the context of this NHS scheme, the Minister does not like—within this NHS process; and, thirdly, for measures to ensure that patient safety lessons are learned and implemented and seen to be learned and implemented.
By placing a general duty to
promote resolution under the scheme, my new clause seeks to ensure that
all the provisions already made possible by the other amendments will
have to be considered before
proceedings can be finalised. The new clause appears to be quite
general, bit I think it can be very powerful, because it is an enabling
measure that gives force to all the other amendments that have been
made, here and in another place. Crucially, it would mean that where
the NHS scheme member’s initial conclusion is not to offer
redress but the patient feels, having received independent, specialist
legal advice to that effect, that they should be eligible,
consideration would have to be given to the use of joint instruction of
medical experts as a means of seeking resolution, because—the
Minister looks at me quizzically, but I know he will agree with my
“because”—all possible instruments within the
scheme would have to be examined and eliminated before having recourse
to civil proceedings. In some disputed cases, that might well result in
bringing independence to bear on the assessment of eligibility for
redress, rather than just establishing the facts of what happened, as
others, not least on the Opposition Benches, have sought.
In some such disputed cases, it would mean that the patient was empowered through specialist legal advice and representation jointly commissioned from independent sources, but within the scheme. If an independent medical expert assessed that there was negligence and causation, the expectation would be bound to be that there would be an offer of redress.
The new clause and the amendments—largely the Government amendments—made here and in another place would help to ensure that patient safety lessons were learned and implemented if the independent medical expert identified in the report the salient risk management issues. In other words, the positive experience from the resolve pilot in England and the speedy resolution pilot in Wales would be put to good use, just as I argued—with some sympathy across the House—on Second Reading and throughout the Committee stage.
The crucial point is that the original ethos of the scheme—putting the emphasis on the NHS itself and recognising where it has been negligent, and the NHS proactively putting things right and offering redress within its own owned NHS scheme—would be safeguarded, empowered and furthered by the new clause. The process that I have described of joint instruction would be necessary only if and when the NHS’s assessment did not tally with that of the patient and the legal adviser. That is my interpretation of the overall effect of this enabling new clause and of the combined effect of my new clause with the various Government amendments that it seeks to enable. I would be grateful for a few words from the Minister—I have no doubt that they will be forthcoming—about how that tallies with his interpretation. Kindly, he has already written to me about that so I have an idea what he might say. Given the effect of the new clause and the amendments that it seeks to enable, I believe that we have the framework of a scheme that could enjoy public confidence and deliver real benefits to patients and the NHS.
Mr.
John Baron (Billericay) (Con): We have made it clear that
we support the sentiment behind the Bill and therefore we have no
problem in supporting the sentiment behind the new clause. In many
ways, it is inherently obvious and what it says goes without
saying. It could be argued that that raises the question of why it has
to be included in the Bill. The Minister will be fully aware that we
welcome and support the good intentions underlying the redress scheme.
Our problem is that we have difficulties with some of the detail and
content of the operation of the Government’s proposed
scheme.
It is ironic that the new clause refers to
“the desirability of redress being provided without recourse to civil proceedings.”
In many respects, and with due respect, those words could be construed as misleading. If the Government have their way, the redress scheme will replicate the difficulties of the civil litigation scheme instead of representing a genuine alternative to litigation. That is anything but desirable. The Government are proposing that the role of lawyers be extended to any stage prior to the offer, including the joint instruction of medical experts. However, the redress scheme is not conceived as a judicial process, so the question of legal representation should not arise. Legal rights are not being asserted or defended. Thus there will be lawyers involved in a process that is non-determinative and non-binding. The scheme will not ensure the closure, certainty or finality of a court process. It will attract the problems of civil legal proceedings, such as expensive lawyers, protracted cases and complexity, without the good aspects of the judicial process, such as finality and independence. It is, in many respects, a lose-lose situation.
2.15 pm
I suggest to the hon. Member for Birmingham, Erdington (Mr. Simon)—I think that he almost conceded this point in his remarks—that the new clause is legally meaningless. As a matter of statutory construction, it merely provides for an expression of good intent. It does not bestow any legal rights. It neither confers a power, nor prescribes a duty. Instead, it expresses a requirement that there must be regard to
“the desirability of redress being provided without recourse to civil proceedings.”
In legal terms, it is meaningless. It is not enforceable and would not appear to give rise to legal remedies, whether in public law or private law. In many respects, his new clause is empty. It does not bring anything new to the Bill or to the present situation as it stands. The NHS Litigation Authority, for example, has always had the power to settle cases. The health service has always had the power to resolve claims without recourse to civil proceedings. In short, because the provision will have little basis in reality if the Government have their way, we suggest that the new clause is unnecessary. It is a bit of waste and so we will not waste the House’s time in forcing a vote on it.
The Minister of State, Department of Health (Andy Burnham): I thank my hon. Friend the Member for Birmingham, Erdington (Mr. Simon) for the constructive way in which has engaged with me and the Department on the Bill. I thank him for facilitating the meeting that we held with AvMA between the conclusion of the Committee and today’s proceedings. To complete the tribute to him, I should compliment him on his parliamentary drafting skills, which are clearly excellent.
As I understand it, the new clause imposes a general duty to promote resolution under the scheme. Under the new clause, a duty will be imposed on scheme members and the scheme authority to have regard, when carrying out their functions under the scheme, to the desirability of settling the case. Scheme members and the scheme authority should have particular regard to the desirability of settling under the scheme, rather than leaving cases to be pursued through the courts.
I welcome the new clause and the approach that my hon. Friend seeks to achieve through it. He is right to say that it should be seen in the context of the Government amendments. I should say to hon. Members, including the hon. Member for Romsey (Sandra Gidley), that we have listened between the Committee stage and the Report stage. We have taken on board comments made by hon. Members on both sides of the House and we believe that the Bill will be strengthened through making those amendments. In my view, the new clause re-enforces the positive front-foot spirit that we want the Bill to encourage.
The Bill and the redress scheme to be established under the powers in the Bill aim to open up access to justice for the less articulate, the less wealthy and those who traditionally would have been fed up and abandoned the legal process before a case was completed. Under the new clause, if providers of NHS services believe that there might be a case of negligence, they would be expected to take cases forward. An active approach to redress will be required under the scheme. To be effective, it is important that the NHS is not defensive. The NHS must do all that it can to identify and, where appropriate, resolve cases falling under the scheme.
My hon. Friend the Member for Birmingham, Erdington was absolutely right to say that the spirit of the Bill is about empowering patients, providing information to them and ensuring that we address their needs when harm has been done. I urge him to see the Bill in the context of other reforms that the Government are making in the national health service to ensure that it is a service that focuses on the individual patient and that patient’s experience of the health service, and on ensuring that, when things go wrong, redress to the patient is the thing that matters. I am confident that the NHS redress scheme has the potential over time to effect culture change in the NHS, although I readily acknowledge that that is never an easy thing to achieve. There will be scheme members who are already taking an active approach to complaints and to clinical negligence cases. Some organisations will be prepared to be open and honest, and will embrace the principles of the redress scheme, but there will be others who may continue to be defensive, drag their heels and have a less than positive approach to these matters. We need to do all that we can to ensure that that does not happen.
Mr.
Simon: Does my hon. Friend agree that although the new
clause is subtle, and its scope and extent may not therefore be
immediately apparent to everybody, it is a powerful and significant
addition to the Bill because it fundamentally changes the obligations
on scheme members? It is not at all empty or meaningless, as the hon.
Member for Billericay (Mr. Baron) claimed. It is subtle, for
sure, but it is powerful and complex, and
it fundamentally alters the presumptions that will now legally have to
inform the actions and attitudes of scheme
members.
Andy Burnham: My hon. Friend sums up the new clause extremely well. It is not at all empty or superfluous, as the hon. Member for Billericay sought to claim. It does indeed involve a wide, general duty, but it sets the whole tone for how scheme members should carry out their duties and use the measures and avenues that the scheme puts at their disposal. In making decisions, they are at all times legally required to consider the desirability of concluding matters under the scheme. I emphasise to the hon. Gentleman the word “concluding”, because there is a need for finality, and for giving patients an early apology and explanation of the steps being taken to prevent incidents from happening again. All that is enshrined in the new clause.
I am anxious to avoid cases being brought under the scheme, only for some of the old thinking to prevail so that at the point at which they may be settled they are pushed into the legal process. That would lead to duplication of expense and resource, which would not be in the interests of the taxpayer. I believe that we will avoid that by having a clause that promotes the desirability of settling. I am sure that hon. Members in all parts of the House can think of cases, not only in the NHS but in other parts of the public sector, in which individuals have been stonewalled and pushed into pursuing a legal action against a public body, possibly in the hope that they will get fed up and give up, having been ground down by the seemingly interminable process in which they find themselves. That process, which comes about because individuals in organisations will not accept that they have made mistakes and apologise for them, can be extremely wasteful of public resources. It can also ruin people’s lives because they become consumed by a case that ultimately has to be pursued through the courts. As I understand my hon. Friend’s new clause, it is precisely that situation that it seeks to avoid.
The new clause signals that the redress scheme is not simply a process parallel to that in the courts but is intended to be the primary means by which disputes arising out of NHS hospital services are, where reasonably practicable, to be resolved, rather than leaving cases to be pursued through the courts. It is drafted in general terms, imposing a general duty to promote resolution. My expectation is that at each stage of the proceedings, the scheme member and/or the scheme authority, if they are considering giving up on the scheme for a specific case, must have regard to the desirability of settling under the scheme. At that point they should consider the means that they have at their disposal, such as the joint instruction of medical experts, and positively consider whether it would be right to take that course of action given the desirability of settling and the awareness that the case may continue by the legal route.
The new clause is entirely in
keeping with the spirit of the Bill that we have put before the House.
It is consistent with the open learning culture that we want to see in
the NHS, in which mistakes are identified and
acted on at an early stage and in which redress is offered as early as
possible. In reinforcing that duty, the new clause adds significantly
to the Bill, and I am pleased to signal to my hon. Friend that the
Government are prepared to accept
it.
Clause read a Second time, and added to the Bill.
Andy Burnham: I beg to move amendment No. 8, page 3, line 7, leave out ‘and’.
Madam Deputy Speaker (Sylvia Heal): With this it will be convenient to discuss the following: Government amendments Nos. 9 and 10
Amendment No. 4, in clause 6, page 4, line 23, at end insert—
‘(g) about the publication of a report of the independent investigation in accordance with paragraph (a)’.
Government amendments Nos. 11 and 16 to 18.
Andy Burnham: In Committee, the point was well made, particularly by the hon. Member for Romsey (Sandra Gidley) and my hon. Friend the Member for Stoke-on-Trent, Central (Mark Fisher), that patients harmed during their NHS care often say that they do not want it to happen to anyone else. I have never been at odds with that statement. Those are normally the first words out of the mouths of people presenting at our constituency surgeries when they seek to pursue a case and confront the NHS with the harm that they have suffered through its failings. For many individuals, redress and closure—to use that terrible word—may often mean being clear in the knowledge that measures have been or will be taken to ensure the mistake does not happen again.
I was asked by the hon. Lady and others to consider an amendment to the Bill to provide for a report on action to be taken to prevent similar cases arising in the future, and for that report to be made available where appropriate. I am pleased to say that having considered this matter carefully I have tabled such an amendment. The amendment, to clause 3(2), provides that redress will now ordinarily include the giving of a report on the action that has been or will be taken at local level to prevent similar cases arising.
As was
accepted in Committee, there will be occasions where mistakes can
simply be ascribed to genuine human error—mistakes where no
procedural changes need to be made and where a report of this type will
not be appropriate. As I said in Committee, we must be careful about
placing extra administrative burdens on the NHS. I believe that the
hon. Lady accepts that caveat. In these specific types of circumstance,
the scheme may provide that a report will not be necessary, although
ordinarily such a report will now be provided. Therefore, not only will
scheme members publish an annual report about lessons to be learned
from cases under the scheme, under clause 10, but the redress offered
to individuals under the scheme will now ordinarily include a report on
the specific
action to be taken to prevent a similar mistake happening again in that
patient’s individual case. I think that that was what the hon.
Lady was urging me to do, and she was right to do
so.
2.30 pm
On amendments Nos. 4, 10 and 11, I listened carefully to what was said in Committee, particularly by my hon. Friend the Member for Birmingham, Erdington (Mr. Simon), about the reasons why investigation reports should be provided to individuals if requested. He focused on the importance of providing the full facts, not only to those to whom offers are made under the scheme, but to those to whom an offer is not made and whose case is terminated. He spoke about the sense of grievance that people may experience if they are not eligible for redress and he explained why they should, if they so wished, be provided with the facts and the outcome of the investigation, so that they could understand why they were not entitled to the redress that they sought.
Amendments Nos. 10 and 11 require the scheme to provide for the findings of an investigation to be recorded in a report, and for the report to be made available to the individual seeking redress on request. As I stressed in Committee, clause 3(2) already ensures that an explanation will ordinarily be provided under the redress scheme. It will be a full explanation, and we envisage that in a number of cases—particularly the more straightforward—the patient will be satisfied with that explanation. We want to reduce unnecessary bureaucracy for scheme members, and we do not wish to impose on them the extra burden of providing the investigation report in every case. In some—perhaps many—cases, an explanation may be adequate, but our amendments ensure that, if it is requested, the investigation report will ordinarily be provided.
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