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Mr. Charles Walker (Broxbourne) (Con): If the report is not provided to a patient, where would that leave the patient? What form of redress would the patient have in those cases? How could the patient ascertain where the failings occurred in his or her the treatment if he or she does not have a copy of the report?
Andy Burnham: We were asked to go further in Committee. We have in the Bill a requirement to provide an explanation and an apology if one is deemed appropriate. I argued in Committee that that would ordinarily meet the concerns expressed by the hon. Member for Romsey, because people would receive an explanation that, for all intents and purposes, would comprise the same information as the report. She pressed me to go further. She said that a report will be compiled, so it is right that the patient should have access to that report. If it is accepted that a case should proceed under the NHS redress scheme, those provisions are laid down in the Bill, so the patient is left in a strong position, and the patient will be in an even stronger position as a result of the amendments.
Mr. Graham Stuart: The core criticism of the Bill is that the NHS will be judge, jury and defendant if negligence occurs. The Minister is now telling us that, in addition to being judge, jury and defendant, the NHS can withhold the report on the investigation of the facts in some cases from the person who has been wronged. How can that be right? How will that be heard outside the House?
Andy Burnham: Opposition Members have chucked around the phrase “judge and jury” in considering the Bill, but the hon. Gentleman is clearly wrong, because a judge decides whether or not an individual’s rights are invoked, leaving the individual with an adjudication. The scheme does not do that; it is out of the legal process. It does not dispense with people’s legal rights to pursue their cases through the courts; it does not do that at all.
If there is a case under the scheme and redress is offered, it provides for all the things that I have said are in the Bill. I do not believe that I could be clearer in my remarks. Indeed, the Bill makes it absolutely plain that the expectation is that, on request, people will be given their investigation reports. I believe that I have answered in full the points that have been put to me. I believe that we should try to draw these remarks to a close.
3.15 pm
Mrs. Iris Robinson (Strangford) (DUP): Will the Minister clarify what would happen in a case in which the files were lost and the coroner’s report was also missing? That happened in a case in Northern Ireland, in which a family has been trying for 30 years to get answers about the death of a young child who had been in hospital following a heart attack. He was given fluids when he was not supposed to be given any foods. Where should people go for redress in such cases?
Andy Burnham: The hon. Lady has described an extremely unfortunate case. However, that would be an unlikely scenario in today’s NHS, given that much of the documentation is now computerised. I do not want to open up a debate on NHS information technology, but much of the information would be held on an IT record today, and there would not be the same risk of data relevant to a case going missing. Even if some paperwork were lost, it could probably be replicated from the source material. However, the hon. Lady has made a reasonable point, and obviously we would not want to see such things happen.
I have dealt with the points raised by Opposition Members. They seem to want to snatch defeat from the jaws of victory, but I urge them not to do so. Indeed, they should be pleased with the concessions that we have made. Earl Howe pressed us to go further and to provide a report giving an explanation of how similar circumstances would not arise again, and I believe that the amendments have responded to concerns that were expressed in another place. There was consensus on all sides on these issues, and I believe that there still is. However, if Opposition Members want to pursue the issue of consultation, I recommend that they do so. I commend the amendment to the House.
Amendment made: No. 9, in page 3, line 8, at end insert
‘and
(d) the giving of a report on the action which has been, or will be, taken to prevent similar cases arising,’.— [ Andy Burnham .]
Amendment made: No. 10, in page 4, line 13, leave out ‘(3) and’ and insert ‘(2A) to’.— [ Andy Burnham . ]
Mr. Baron: I beg to move amendment No. 1, page 4, line 16, after first ‘the’, insert ‘independent’.
Mr. Deputy Speaker (Sir Michael Lord): With this it will be convenient to discuss the following amendments: No. 2, page 4, line 16, at end insert
‘in accordance with the rules of natural justice such that the person overseeing the investigation is independent of the trust under investigation (such investigation to be confined to the facts of cases and not to consider issues of liability in law, whether civil or criminal).’.
No. 3, page 4, line 19, at end insert—
‘( ) about the assessment of liability in tort under the scheme.’.
No. 6, in clause 11, page 6, line 28, at end insert
‘save for the investigation of the facts of cases in accordance with subsection 6(2)(a)’.
Mr. Baron: This group of cross-party amendments reflects our concern that the NHS redress scheme, as envisaged in the Bill, lacks independence. This represents a missed opportunity to create a mechanism that will have the full confidence of patients and therefore provide a meaningful alternative to going to court. This is the key dividing line between the Government and the Opposition. I speak also for the Liberal Democrats and for the hon. Member for Wyre Forest (Dr. Taylor) when I say that we believe that the fact-finding stage of the investigation must be independent. The Government do not agree. The Minister explicitly conceded that in stark terms in Committee, when he said that the scheme “is not independent”. In other words, the investigation will be conducted internally by the NHS. The very trust being investigated will be investigating itself.
We believe that to be fundamentally wrong for a number of reasons. The first relates to the principle of natural justice. The NHS should not be its own judge and jury, as that represents a clear conflict of interest. Independence is a basic principle of natural justice enshrined in the rule against bias that no man, or woman, should be a judge in his or her own cause. We have consulted widely on this issue, and there is widespread concern outside this place about the lack of independence in the Bill.
There is also an issue of credibility. Independence is a pragmatic necessity, in the sense that an investigation without the badge of independence would lack credibility and fail to inspire the confidence of patients. That point was acknowledged by the Constitutional Affairs Committee, in its report “Compensation Culture: NHS Redress Bill”, published on 1 March 2006.
Andy Burnham: Will the hon. Gentleman clarify a point for me? In his amendment No. 2, he proposes that the person overseeing the investigation should be
“independent of the trust under investigation”.
He also referred to the NHS investigating itself. Does he envisage that person being an NHS employee, or does he envisage that person being employed outside the NHS? If the former, how does he square that with his opposition to the NHS investigating itself?
Mr. Baron: The Minister makes a reasonable point. We believe that it is absolutely wrong that the trust being investigated should conduct that investigation. As is normal practice in coroners’ courts and the like, we suggest that the person who would oversee that investigation, who would be totally independent of the trust, could sign a disclosure of conflict of interest to ensure that there was no connection with the trust in question. Let us be clear: this is enabling legislation. We are trying to establish the principle of independence, which the Government will not even acknowledge. In our view, the best way of establishing that independence is to ensure that the person overseeing the investigation by the trust is independent of that trust.
Andy Burnham: The hon. Gentleman has therefore confirmed that the NHS would be investigating itself, as the person would be an employee of the NHS— [Interruption] The hon. Gentleman says from a sedentary position, not necessarily. Let me ask him again: is that person an employee of the NHS, or is the person employed outside the NHS? Would each NHS trust have an independent investigator? An elaborate scheme was put forward in Committee for patient redress investigators, and this proposal appears to be different. For the sake of a good debate, he needs to clarify this point.
Mr. Baron: It is very straightforward, and I am sorry that the Minister is having trouble with it. We are suggesting that whoever oversees the investigation should be independent of the trust in question. I hope that that is a simple concept to understand. That is the best way of importing independence into the scheme. We are trying to avoid the situation where the trust being investigated conducts the investigation itself. As this is enabling legislation, we are trying to import into the Bill the concept and principle of independence, something to which I think that the Minister—certainly, he suggested this in Committee—is totally opposed.
I return to the point acknowledged by the Constitutional Affairs Committee in its report, “Compensation Culture: NHS Redress Bill”, published on 1 March 2006. It stated:
“We are concerned that if the organisation which is responsible for defending trusts and hospitals is also charged with running the scheme, there may be a perception (whatever the reality) of a conflict of interest.”
That is terribly important. A change of culture within the NHS is desperately needed. At the moment, too many patients are frustrated by their inability to get to the truth, because they see themselves as fighting a bureaucracy that is not willing to co-operate. However, one cannot change the culture of a massive organisation such as the NHS by flicking a switch in Whitehall or through exhortation, as long as the trusts and individuals involved have an organisational and professional interest in the case—a conflict of interest. Patients want an independent fact-finding investigation, in which they have faith because of its independence. There can be no substitute for that. In patients’ eyes, independence will guarantee an honest assessment of the facts.
To illustrate the point, I briefly beg the House’s indulgence—I am sure that all Members will have examples of constituents who have struggled—to recount a very sad case from my constituency. A daughter of the family in question suffered brain damage as an infant but survived into young adulthood. Sadly, she died unexpectedly, shortly after abdominal surgery. Even to a layman—it is a matter of common sense—there was a striking temporal relation between the occurrence of the operation and the occurrence of her death. It required some explanation. However, the cause of death certificate made no mention of the recent surgery. There has been a post-mortem examination, but the pathologist made no mention of the recent surgery in determining the cause of death. The death had apparently not even been reported to the coroner immediately following its occurrence.
Months later the death was reported to the coroner, who declined to hold an inquest. Eventually, two years after the death and following much campaigning by the family—and several letters of robust representation from me—the coroner was persuaded that the death was a matter into which she ought properly to inquire.
I do not know and cannot comment on why the cause of death certificate and the pathologist’s determination of cause of death did not refer to the recent operation. I can say, however, that the doctors who dealt with those matters were connected with the hospital where the events took place.
The family—Mr. and Mrs. Sharp, who have obviously given me permission to raise the case here—want a factual explanation. That is all that they have ever wanted. Only then can they decide whether further action is required. They want an honest investigation of the facts, and have made it clear to me that that can only be brought about, in their minds, if the investigation is independent. Unfortunately, however, that request and many like it are being ignored by the Government.
The Government have made clear, especially in Committee, that what is more important to them is for the NHS to take ownership of the scheme. That was reinforced by the Minister in Committee. The Government want the redress scheme to be an internal system that the NHS will feel that it owns and controls. But that is precisely why people might not have confidence in the system. They have already been battling with an internal system for years, and they are very frustrated by it. They want change, and they want independence. Without independence, any redress scheme risks lacking credibility.
The amendments are also about separating fact-finding and fault-finding for the purpose of the scheme. We have specified that independence must relate to the fact-finding stage of the scheme, because establishing the facts must precede any assessment of liability. Both the Minister and the Secretary of State have conceded that there is a practical and logical distinction between fact-finding and fault-finding for the purposes of the scheme, and have also conceded that the Government’s proposed scheme is itself a two-stage process.
On Second Reading, the Secretary of State said
“The trust would investigate and ascertain the facts and, with the patient’s consent, would refer the case to the scheme authority, the NHS Litigation Authority, to establish liability and an appropriate level of compensation.”—[ Official Report, 6 June 2006; Vol. 447, c. 30.]
The Minister explicitly confirmed that in Committee, and that is exactly what we envisage. The principle underlying the distinction is set out in the Inquiries Act 2005 in relation to the coroner’s inquest, and its logic is readily acknowledged in our courts.
If an additional endorsement of that logic were required, we would need look no further than the Inquiries Act itself. The Act provides that an inquiry has no power to determine a person’s civil or criminal liability. The explanatory notes state
“There is
often a strong feeling...that an inquiry should determine who is
to blame for what has occurred. However, inquiries are not courts and
their findings cannot and do not
have legal effect. The aim of inquiries is to help to restore public
confidence in systems or services by investigating the facts and making
recommendations to prevent recurrence, not to establish liability or to
punish anyone.”
The Inquiries Act provides that an inquiry is not to be inhibited in the discharge of its functions by any likelihood of liability being inferred from findings of fact or recommendations that it makes. The explanatory notes state that
“it is not intended that the inquiry should be hampered in its investigations by a fear that responsibility may be inferred from a determination of a fact.”
It is important for the investigation of facts not to be contaminated by considerations of fault, either by the NHS Litigation Authority with a mind to defend the NHS or by lawyers asserting rights on behalf of the patient.
Given that we and the Government agree that a two-stage process exists, the only issue is whether the investigation of the facts ought to be independent. We propose that the person who oversees the investigation of the facts must be independent of the trust concerned, as we have discussed. We believe that there is no other way of ensuring real independence. Rather than referring to independent fact-finding, however, the Minister has referred to various mechanisms to safeguard patients’ interests.
We suggest that those are leaky buckets that do not hold water. The Secretary of State, on Second Reading, and the Minister, in Committee, referred to a variety of those. In our view, they cannot offer the reassurance to patients that genuine independence would provide. For example, the Minister suggested that free, independent legal advice on an offer or settlement would import elements of independence and safeguard patients’ interests. But that is not the same thing as an independent scheme. Participation by independent lawyers in a process does not transform a non-independent process into an independent one. Moreover, lawyers are not independent, but have to act on someone’s instructions.
3.30 pm
The Minister has also made great play of free, independent medical expert advice. I suggest that that is an empty assurance, because expert advice should be independent anyway, or it is not worth the paper it is written on. If it is not independent, it is not expert opinion at all, but advocacy. The person overseeing the investigation at the trust level would have the right to obtain independent medical expert advice in order to help to ascertain the facts, so the Government’s assurance that free, independent medical expert advice would help does not add anything.
Mr. Simon: What is the Conservatives’ view on the joint instruction of medical experts, which many patient safety organisations and I think is very important? If it were integrated into the scheme, it would be a valuable way to improve it. However, the Tory party seems determined to oppose that, for reasons that I genuinely do not understand.
Mr.
Baron: I thank the hon. Gentleman for giving me the
opportunity to raise that point in the House. To be kind to him, I
suggest that his recommendation is
only a half-measure, because the independent person who oversees the
investigation of the facts would have the right to call forward expert
medical opinion. The suggestion of joint instruction would add nothing
that would not be available to the independent person overseeing the
investigation. If the hon. Gentleman is serious about independence, he
should back the concept of ensuring that whoever oversees the
investigation is independent of the trust that is being investigated.
Like a coroner, that person would have the right to call forward expert
medical advice that was truly independent for the benefit of the
patient in question. The only way to guarantee independence is by
having somebody independent oversee the
investigation.
The Minister talked about access to court action. The Government claim that a safeguard is that the patient can reject the scheme and have access to the courts, but that is nonsense. The Government are defining the merit of redress scheme by the occasion of its failure—when people resort to court action even though the scheme is supposed to provide a genuine alternative to litigation. The Secretary of State and the Minister have made great play of the fact that the patient can always complain to the health service ombudsman and ask for a review to be undertaken by the Healthcare Commission. However, the availability of such remedies relates to maladministration and procedural matters, not substantive issues.
Overall, the leaky buckets do not change the fact that the trust under investigation would be investigating itself—a clear conflict of interests that acts against patients’ best interests. Nor would the independence that we envisage be more expensive. The Minister has made great play of that point.
Andy Burnham: The hon. Gentleman really must tell us who would employ the individuals mentioned in the amendment. Would they be employed by another scheme member or outside the national health service—
Mr. Graham Stuart: You are the Government.
Andy Burnham: But it is an Opposition amendment. If those individuals were to be employed outside the NHS, by whom would they be employed and how many would there be?
Mr. Baron: The Minister persists with that question because he is trying to mask the fact that the Government do not accept that the scheme should be independent. We are trying to import into the Bill the concept and principle of independence, and the best way to do that is to ensure that whoever oversees the investigation of a trust is independent of that trust. It is as simple as that.
Mr.
Stuart: The Minister seems to have forgotten that this is
enabling legislation. The thousands of civil servants behind the
Government should mean that it is possible to decide, after an
appropriate time, precisely who should control investigations. Does my
hon. Friend agree that what is important now is to
determine that that person should be independent, and that the Minister
is simply trying to pick our proposal
apart?
Mr. Baron: I totally agree. We are trying to introduce the principle and concept of independence, but the Minister has made it clear that he does not believe that the scheme should be independent.
Dr. Richard Taylor: May I make a suggestion that may go at least half way towards answering the Minister? In “Making Amends”, it was proposed that the NHS redress scheme should be aligned closely with the new NHS complaints procedure. If that were to happen, the Healthcare Commission would be involved, and that would mean that people would automatically be available to oversee the process independently.
Mr. Baron: I do not disagree, but we need to make it clear that we are trying to introduce into the Bill the principle and concept of independence. I am willing to give way to the Minister again if he wishes to clarify his position on the matter. However, in response to an intervention by me in Committee, he made it abundantly clear that he did not believe that the scheme should be independent, and that ownership was more important.
Andy Burnham: I am happy to intervene again. At the start of his contribution, the hon. Gentleman made it clear that he does not believe that the NHS should investigate itself. In Committee, his proposal was for independent and suitably qualified patient redress investigators, but now he is proposing something different. He needs to give the House an explanation of that, and not evade the question that I am about to ask. Will the people holding those posts be employed by neighbouring trusts, or by PCTs, or by a body such as the Healthcare Commission? If I am to answer him, he needs to be specific. It is not good enough for him to say that the Opposition do not have armies of civil servants: he is asking us to change our legislative proposals, so we need to know what he intends.
Mr. Baron: The Minister referred to amendments that were proposed in Committee, but I suggest that he confine himself to those tabled for today’s Report stage in the House. He seems unable to accept that we are trying to push for the principle and concept of independence. He has not refuted my earlier suggestion that he does not believe that the redress scheme should be independent, so there can be no merit in going into detail about how we would secure that independence. We are using the amendments to introduce the principle and concept of independence into the Bill.
The Minister has
tried to attack our proposal that the redress process should be
independent by suggesting that it would be more expensive. The
Government have conceded, however, that in both their and our proposals
there is a two-stage process; the fact-finding cost is, therefore,
fixed, inevitable and unavoidable whoever oversees the investigation.
There is no question of duplicating bureaucracies and so no question of
additional cost. Indeed, our proposals
could actually save money as they would inspire greater confidence in
the scheme and thus better avoid costly litigation.
In addition, the Minister has contrived the idea that an independent fact-finding process would be adversarial, accusatory or finger-pointing, but that makes no sense at all. There is a basic legal distinction between an adversarial process and an inquisitorial one. An inquisitorial process is concerned with fact-finding, not fault-finding; there is no sense in which such an investigation would reinforce a blame culture in the NHS. Indeed, our proposal for an independent fact-finding process would ensure that the proceedings were not adversarial, as no lawyers would be present and no legal rights would be asserted or defended.
The Minister talked about promoting a culture of openness and honesty, in which the NHS takes responsibility for its own mistakes. He implied time and time again that because our proposal would require an independent outsider to go in and consider what went wrong—he referred to that point again earlier today—it argued against a culture of openness in the NHS and would encourage NHS staff to close ranks and clam up. But that is absurd. If the openness the Minister is talking about is all in-house and not exposed to outside scrutiny, it is not openness at all. There is a fundamental contradiction between the Government’s desire to promote openness and the Minister’s reluctance to allow an independent person to oversee the investigation of the facts.
In Committee, the Minister tried to ridicule our suggestion for an independent fact-finding process by talking about people “snooping” on trusts. He criticised the Opposition for not trusting NHS professionals to carry out an investigation into their own case, but that is a matter neither of snooping nor of trust. What exactly does the Minister believe that the NHS has to fear if his intention is to promote openness and honesty?
I fear that the Minister has taken the problem at the heart of medical error—the blame culture and the reluctance to admit mistakes—and institutionalised it. Instead of challenging and confronting the problem, he has built his system around it. His non-independent scheme seeks to insulate the NHS from outside investigation even when such investigation is of a fact-finding rather than a fault-finding nature. He has set his heart on a non-independent scheme and will dredge up as many bad arguments as he can to support it. Saying that lessons should be learned, but only if they are the lessons the trust wants to learn, is not a genuine commitment to learning lessons or to changing the culture of the NHS.
In
conclusion, I return to my theme: independence is right both in
practice and in principle. It complements the culture of openness the
Minister is trying to promote. It would not be accusatory because we
would separate fact-finding from fault-finding; we would keep the
lawyers and the finger-pointing out. It would allow lessons to be
learned and would reassure the patient. That is the most important
point, because without independence, the investigation of facts, which
will eventually give rise to an assessment—not a
determination—of liability and a possible offer of compensation,
will not have the confidence of patients. In the worst case scenario
the redress scheme would not be a meaningful alternative to going to
court, and because of the importance of the issue I intend to test the
opinion of the House on the
amendment.
Sandra Gidley: We have just heard a long and detailed explanation—despite what the Minister thinks—so I shall not rehearse many of the arguments.
The amendments are an attempt to improve the scheme by introducing the concept of independence. There is broad consensus that we want a spirit of openness and honesty in the NHS; it needs to be part of the NHS culture. I know that attempts are being made to engender and promote that, with the emphasis on the reporting of incidents, which has quite a depressing effect because we then read reports that there are a million adverse incidents in the NHS in a year. Actually, it is good that any near miss—any slight problem—is reported, because we learn from those mistakes. We are moving towards a culture of openness and honesty, because people realise that in many instances there is no blame attached.
Disagreement has arisen, however, because the Government seem to be wedded to the idea that in-house investigation will promote further openness and honesty. Indeed, Members such as the hon. Member for Crawley (Laura Moffatt), who have considerable experience of the NHS, argue that point very powerfully.
I undertook my own very unscientific straw poll.
Mr. Simon Burns (West Chelmsford) (Con): Like all Lib Dem polls.
Sandra Gidley: I am on your side here—remember?
I conducted that poll to get a feeling for the attitude of various grass-roots employees of the NHS. I asked for their thoughts in a very neutral way, without prompting. There seemed to be a considerable consensus that a completely in-house investigation causes problems, not necessarily because of a lack of desire for openness, but because often internal tensions and loyalties come into play and are played on in a way that can be unacceptable. For that reason, there seem to be a number of people who strongly support the concept of independence.
3.45 pm
I was accused of being unscientific, but, as the hon. Member for Billericay (Mr. Baron) said earlier, a number of bodies support this concept. I think we have to approach it from a patient perspective, because unfortunately patients can sometimes have a deep mistrust of the NHS. When things are going well, people have nothing but praise, but when things go wrong, time and again there is the accusation that “they all cover up for each other”. That perception must be challenged, and that is why the Bill as it stands is so dangerous. I am far from convinced that “they all cover up for each other”, but it does happen from time to time.
For those reasons, there is a
huge advantage in introducing someone from outside the organisation:
people can talk more frankly, as long as the outside person has some
powers to access the information that is required to complete the
investigation. If that person is independent, the process will have
much greater buyin from the public and, I suspect, much greater
cooperation from staff who are involved, directly or
indirectly.
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