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The outside person clearly needs to be independent. The Minister questioned us at some length to try to get details of who would employ the person and whether they would be truly independent of the NHS. I confess that I felt that the Minister was taking the view that we, as Opposition Members, often take in Standing Committees, because we are often faced with something fairly broadbrush from the Government and are asked to take a lot of things on trust. [Interruption.] The Minister says that he explains, and I concede that he has tried very hard to explain, but I can think of numerous Standing Committees in which I have served where the detail of proposals was extremely hazy——so the Minister is not exactly unique in this.
Steve Webb: Does my hon. Friend agree that if the Government accept the spirit of the amendments and the principle of independence, no Opposition Member would, I suppose, force through the specific wording, provided we received an assurance that amendments on independence would be introduced in another place?
Sandra Gidley: That would be welcome, but, judging from the experience during other stages of the Bill, I cannot see the Government conceding on this matter.
There must be wider consultation on the precise nature of the independence so that we know exactly what is acceptable to patients and those within the NHS. Taking the Government approach of the enabling principle, I would contend that there is everything to be gained from accepting the principle of what we are talking about and consulting more widely on the detail. I urge the Minister to consider the amendments, which have widespread support, carefully, and perhaps live a little dangerously.
Mike Penning (Hemel Hempstead) (Con): I will speak for only a short time—I am sure that the Minister will be pleased to hear that. I want to talk about natural justice, about which we seldom hear from the Government these days. If patients or their loved ones feel that they have suffered at the hands of the NHS, they have already been substantially hurt and often feel enormously let down. If they are told, “Well, it can’t be an independent inquiry. The trust will do the inquiry themselves,” they will not understand where the natural justice is in the Bill. I am disappointed by what I have heard. I was not on the Committee, but I am on the Health Committee and we have looked at the matter independently—not in a report, but in relation to the information that has come through. I honestly thought that the Government were going to open things up and allow natural justice in the NHS.
As a new MP, all too often I
have constituents who come to me and say, “Would you take my
case to the ombudsman?” Naturally we have to go through the
bureaucratic process of going to the trust and making a
formal complaint. My constituents say, “Why? It’s the
trust that’s let us down. It’s the trust that made the
mistakes.” How on earth are we going to have confidence in the
NHS if we tell them, “Don’t worry. We’ve got a
brand new Bill. Everything is going to be fine. And, by the way, the
trust is going to make the inquiry into your complaint.” That is
not going to work.
The Minister should think about this matter carefully. If it were his children or family and he had cause to seek redress, would he be happy to go to the same management and the same people who had been treating his loved ones and perhaps made mistakes? That is where the danger in not accepting the provisions lies. We need confidence in the NHS. The NHS is going through a difficult time.
Mr. Simon: I understand what the hon. Gentleman is saying and I appreciate the sincerity of his intent, but, in common with hon. Members across the Opposition Benches, he is missing the fundamental point that the Bill is about the process during which the NHS investigates itself. It is not about these other things. In his example, the alternative is for every case to go straight to the ombudsman. That should not happen, because the NHS is bound to investigate itself and the Bill is about how it does that.
Mike Penning: In all sincerity, I understand where the hon. Gentleman is coming from. However, the object of any such Bill is the trust of the public—our constituents—who are using the service. I was not saying, in any shape or form, that we should go from the patient having problems and needing redress straight to the ombudsman. However, as the Bill stands, we still have the trust investigating itself. We have moved away from that in other areas of government. The police used to investigate themselves. They do not do that any more, because the public did not trust the methodology. We have moved away from that. I am not saying we should move straight to the ombudsman; I am saying that trust and natural justice should be addressed, which I am sure was the intention of the Bill at the start. That is not going to happen unless there is independence.
Dr. William McCrea (South Antrim) (DUP): Does the hon. Gentleman agree that openness and independence are essential to gain confidence in the community and to provide a major protection for the excellent members of the NHS?
Mike
Penning: I could not agree more. The hon. Gentleman is
spot on. If we had independence it would very much help the
professionals who do such a fantastic job in the NHS—those in
the management structure and the doctors and nurses who are so worried.
The natural assumption is that when another complaint comes in, the
walls will go up. Whether or not that is true, it is the perception in
the NHS and among patients. I cannot stress how strongly I feel about
this matter. We have started to see openness in the NHS: patients can
see their records now, which they never used to be able to do. I am
sure that the Minister acts in good faith, but I say to him that this
part of the Bill is fundamentally wrong. It should be
about natural justice, and we will not gain that if the measure lacks
independence.
Mr. Graham Stuart: We have heard a very powerful speech that goes to the heart of the issue, which is the patient experience. It is not possible for the House to focus too much on the position of someone who has been wronged by the system and has a great sense of grievance. In the system today, as the Government have described, such people all too often feel that their complaint is not taken seriously, they feel that an explanation has not been provided and they do not receive an apology.
Like my hon. Friend the Member for Hemel Hempstead (Mike Penning), I recognise that the Government and the Minister are sincere in their desire to create a decent redress scheme. Unfortunately, the more I have seen of the Bill and its proceedings, the clearer it has become that it is fundamentally flawed. Fault and fact finding will not be separated. The hon. Member for Birmingham, Erdington (Mr. Simon) is right to challenge the notion that the NHS investigates itself. It has been used by Opposition Members to sum up the issue, and it is technically correct. I put it to the hon. Gentleman—I know that he takes a great interest in this matter and is sincere in his views—that the problem is not that the NHS investigates itself but that the trust that is responsible for letting down the individual patient ends up investigating the case.
There are trusts that are poorly run—fortunately not many—trusts in which mistakes happen and trusts that have a culture that is less than adequate. Where the local community feels that that is the case, where individuals have been negligently treated by the trust, the justice that they will receive under the Government’s golden new system is that that trust will investigate itself. That is at the core of our objections to the Bill.
Mr. Richard Benyon (Newbury) (Con): My hon. Friend is making an important point. Is it not important that we look at this matter through the eyes of families of constituents such as mine, who are trying to find any way they can to avoid having to go to court and employ expensive lawyers? They support the principles behind the Bill, but what they really want is a patients’ champion, or a families’ champion, separate from the trust. That is the key point.
Mr. Stuart: My hon. Friend is absolutely right. I ask the Minister not to nit-pick at the concept of independence. It is not a failure on the part of the Opposition to fail to specify precisely which authority will oversee this. Doubtless there are various organisations that could do so, and a contribution from the Government to the discussion on how that could better be done would be useful. Rather than challenging the Conservatives to tell them how to run the Government, as this Government, in an intellectually bankrupt way, too often do, the Minister should tell us why he feels that no such body exists or could be created.
Mr. Simon: Will the hon. Gentleman give way?
Mr. Stuart: I will make a little more progress.
I would rather hear from the Minister why it is impossible to imagine setting up a body to oversee these matters and ensure that there is independence. We are in an invidious position: the Government, who started out with the best intentions, are suggesting that the trust should be the investigator, the defendant and, to an extent, the jury.
4 pm
The Minister made it clear that there is a truly alarming additional element. Although he says—and I welcome it—that in nearly all cases the report into an incident will be made available to the patient concerned, unfortunately there are no guarantees on how often that would happen. The trust at fault could investigate itself, then refuse to present the report to the patient who has been wronged. When the Minister goes to sleep tonight, he must accept, in all good conscience, that he is a long way from the position that he wanted to secure when he first sought to provide a fairer system of justice for patients who have been wronged.
Mike Penning: Can my hon. Friend think of any reason why the Minister is not willing to include in the Bill a provision stating that the reports should be available to the patients concerned?
Mr. Stuart: I cannot think of any reason. The Minister implied that he would like patients always to be provided with a copy of the report. He suggested that when it was not the patient but someone else who asked for the report, it should not necessarily be provided, but such a provision could be included in the Bill. I think that hon. Members in both Opposition parties would urge the Minister to make that change, even at this late stage.
I am rightly being urged to keep my speech short, but, before I conclude, I ask the Minister to think about the clinicians’ point of view. Imagine that, in a trust such as the one that I have described, there was a clinician who was not too popular with the trust’s management, and a complaint was received. Who investigates it? Does an independent fact-finder who is experienced in such investigations, and to whom we can look for an objective assessment of the facts, come in from outside? No, the trust’s management, with whom the clinician may have a fractious relationship, decides on the facts of the case, writes up the report and may conceivably release it to the patient. Quite possibly, that patient’s first act will be to stop at the local newspaper office on his way to the lawyers.
Andy Burnham rose—
Mr. Stuart: I will give way to the Minister in a moment.
The clinician may find himself in that position. The Minister’s suggestion—this is the point to which I would like him to respond—that the clinician will be happy with that, and that it will lead to openness, is absurd.
Andy
Burnham: I will not respond to that, but I want to ask the
hon. Gentleman a question. Does he not
accept that it is standard practice, not just in the public sector, but
in the private sector, that when a complaint is brought against an
organisation, the first stage should be an investigation carried out by
the organisation itself? Is the hon. Gentleman suggesting that that
does not happen in the private sector? If someone sought to escalate a
case before such an investigation had happened, they would normally be
told to take the matter back to the organisation for investigation and
response.
Mr. Stuart: The Minister makes a point with some power to it, but the Government introduced the Bill precisely because the NHS is not investigating itself in that way. It is because the matter is of critical importance, not only to the patient but to the country as a whole, that independence is needed. The police have similar status, and it is similarly important that they should conduct themselves fairly, but it has been decided that they should not investigate themselves.
The Minister said at the beginning of his contribution that there will not be an independent investigation. That is the message that the Government are sending out. The Minister is telling patients who have been wronged by trusts across the country that there will be no independent investigation. The Government will realise, months or years from now, that it is a mistake to send out that signal and to destroy the good intentions that they had when they set out on this path.
Mr. Walker: Thank you, Mr. Deputy Speaker, for calling me to speak in this important debate. In Committee I thought that, by and large, this was a good Bill. There were some flaws in it, but on the whole it was facing in the right direction. However, I am becoming concerned.
The Bill raises the question of who is in charge of a hospital trust when a mistake is made. The answer, of course, is the chief executive. The buck stops with him. If a pattern of mistakes emerges, there is a danger that vested interests will begin to take hold. Would a chief executive therefore begin to take a much closer interest in the investigation process, perhaps to make sure that the full implications of the mistakes made do not see the light of day, or that if they do, they are kept well away from his office?
There is a need for trust and transparency in the system. The public sector—the NHS and the police, as my hon. Friend the Member for Hemel Hempstead (Mike Penning) said—is at the best of times viewed with a degree of cynicism by the public. There is a concern among many of my constituents, and no doubt among the public in general, that if faced with an investigation that could be embarrassing, the NHS will close ranks around the senior management team and perhaps the clinicians concerned.
The danger
arises if a pattern starts to emerge. We discussed reports being made
public or not. Surely if a pattern is emerging, reports may be withheld
because they will prove that failures in the system have not been
addressed—that something that was identified a year ago has
happened time and again. For the sake of my constituents and others, a
degree of independence would be wholly justified. Perhaps a complaint
against
a trust should be investigated by another trust. We see that happening
in the police, where one force may investigate a complaint against
another.
I know that the Minister is a hugely decent and honourable gentleman and I would not wish to waste his time by making puerile suggestions. I join my hon. Friends in urging him to find some way of injecting an element of independence into the investigation procedure, perhaps by allowing a trust other than the one being investigated to look into the complaint or the case being presented.
Mr. Hurd: I shall add one brief point. The Minister and the Government are deluding themselves in their claim that the Bill will transform the culture of the NHS. I say that for two reasons. First, we on the Conservative Benches are learning a little about culture change, and we know that it requires strong management and strong signals of change. The more I look at the Bill, the more it strikes me that it does little more than formalise what already happens. I cannot see that that is a strong signal of change to the NHS.
Secondly, because necessarily at no point in the process is the legal threat removed—it remains as a sword potentially hanging over the situation at all times—I cannot see how that will make the NHS any more welcoming of a breathing space to face up to its failings or become more active in identifying problems. That is a delusion— it would be much better to focus, as we do, on how the patients will respond to the opportunity. They will have two questions— first, who will find out the facts? The Government say that will be done by the very trust that made the mistake. Secondly, who will define liability? The answer is the very agency whose priority is to defend the NHS. It is very difficult to see how patients will have any more confidence in the new system. It would be far better to focus on a guarantee of independence, as we propose, to find the facts.
Dr. Richard Taylor: I am passionately on the side of those who want complete independence in the process. The Government have a short memory. The old NHS complaints procedure was not independent, in that the complaints convenor was time and again an employee of the trust or very often a non-executive director of the trust. That happened in my area. Only a minuscule number of complaints got through that trust employee. The Government then changed the NHS complaints procedure. Certainly, the first stage is the internal investigation, but then it moves on to the wider, completely independent part supervised by the Healthcare Commission.
I will give an example from personal memory. Rather a long time ago, I was a doctor doing my national service in the RAF. I had just got married. Within weeks of that, I was posted unaccompanied to Christmas Island. My commanding officer, who was the same sort of lovely, helpful, avuncular figure as Mr. Speaker himself, told me that an officer had the right to appeal to the Secretary of State for Air. So I came up to London in my best uniform to appeal to him, but who did I see? It was merely the lowly squadron leader who had given me the posting.
Mr. Walker: I hate to pick at open wounds, but it is a little like the Prime Minister saying, “Yes, I recognise there is a problem with cash for peerages and the Labour party is going to investigate it.” What confidence would the public have in that sort of statement?
Dr. Taylor: I will not comment on that point.
The Minister has said that the redress scheme will be owned by the NHS. I entirely agree that the investigation has to be carried out, but there must be independent oversight for it to gain any confidence among the ordinary people. I understand that he said in Committee that he favoured a scheme that encouraged the NHS to own up to mistakes. I agree, but was not he being a little naive? Surely, there has to be independent outside oversight to ensure that an investigation is full and open and allows no cover-up.
Andy Burnham: We have had a long discussion on this group of amendments, during which the Opposition’s confusion has been laid completely bare.
Amendments Nos. 1, 2, 3 and 6 seek completely to separate fact-finding investigations under the redress scheme from fault finding. The scheme authority would have no role in the investigation and would be unable to provide guidance or advice to scheme members about investigations. The opportunity for a unified and complete scheme for redress would be lost. I reject the amendments and encourage my hon. Friends to do likewise.
The amendments focus on a major area of disagreement—namely, independent investigation. In another place, the Opposition gave us the model of
“suitably qualified patient redress investigators”
who were to conduct the fact-finding investigation in each case and to be overseen by the Healthcare Commission, which was also to be responsible for maintaining and publishing a list of the investigators. On Second Reading, the hon. Member for South Cambridgeshire (Mr. Lansley) defended that proposal. In Committee, we saw it slowly unravel as the hon. Member for Billericay (Mr. Baron) sought to explain it to us. When we asked him to describe exactly how it would work and, importantly, how much it would cost, he said:
“at the top we have one person, an NHS redress investigator, who is truly independent and oversees the fact-finding stage.”—[ Official Report, Standing Committee B, 13 June 2006; c. 43.]
That is not what the amendment in the other place provided for. It clearly stated that the patient redress investigators were to conduct the investigation of the facts of a case and produce a report on the principal findings.
In
Committee, the redress investigator was no longer to conduct the case
but to play an oversight role. The proposal somehow changed between
Second Reading and Committee. We now have a new proposal whereby an
individual would be independent of the trust. However, the hon. Member
for Billericay has provided no clarity about who would employ that
individual—another NHS trust, the Healthcare Commission or a
different organisation. We have no idea of the proposed number of
independent investigators, yet we are asked
to accept an amendment that includes no detail, with complete policy
confusion behind it.
4.15 pm
The hon. Gentleman challenged me on several occasions by saying that I was opposed to independence and had a fundamental objection to it. I hope that I partly convinced him that the Bill and the amendments that we have tabled today will mean more openness and transparency. There is independence in the scheme in that we can use independent medical experts. Independent legal advice will also be provided to individuals at the end of the scheme.
However, if the hon. Gentleman is asking me to explain again the purpose of the scheme, I stress that we are considering the national health service doing better what it should do ordinarily—investigate complaints brought by patients and not cause huge delay and frustration when patients try to have a complaint investigated. We are considering the NHS conducting the first stage of complaints better.
My hon. Friend the Member for Birmingham, Erdington (Mr. Simon) was right to say that the Opposition have consistently misunderstood the point. Why would we replicate the legal process in the scheme? It is an out-of-court settlement scheme. Why on earth would we build into it all the expense of the independent legal process?
Steve Webb: When the police investigate themselves, people are not happy and the Government have therefore created an Independent Police Complaints Commission. Why is that okay for the police but not the NHS?
Andy Burnham: Again, Opposition Members are confused. There is a second stage complaints process in the NHS. The Healthcare Commission deals with that. However, if the hon. Gentleman wrote to the commission today with a complaint from a constituent, I am confident that it would write back and ask him whether he had first complained to the relevant trust and what its explanation was. If he took a complaint about a police force to the Independent Police Complaints Commission, its response would be the same. It would not deal with an initial complaint by an individual constituent.
Mr. Simon: Does my hon. Friend agree that Opposition Members again fundamentally misunderstand our constituents’ position? It is not the case that they do not want to complain to the relevant trust, that they do not want the trust to investigate itself or that they want immediate redress through an independent arbiter. My constituents want to complain to the trust that has done what they perceive to be wrong. They want the people responsible to take them seriously, consider the complaint in depth, find the solutions and provide some answers. The Bill simply creates a process and provides a huge array of tools to enable trusts to do that. That is the purpose of the measure, which Opposition Members have fundamentally failed to understand throughout our proceedings.
Andy Burnham: My hon. Friend is right and there is probably no point in my saying more, but I shall say a little. He has expressed exactly what our constituents want when they come to our advice surgeries. They want their local trusts to see for themselves the mistake that has been made, acknowledge it, apologise, explain and take steps that will stop that happening to other local people—their neighbours who live in the same community. That is what they want.
When I was sitting through some of the tripe that we heard from Opposition Members, I got the impression that they have a distinct distrust of the national health service’s ability to carry out fair investigations into complaints brought to it. [Interruption.] It is nothing to do with the Government; these are complaints that are brought to NHS trusts. The hon. Member for Hemel Hempstead (Mike Penning) said that he could not take those complaints to trusts because they would not have the trust of the public; he used words exactly to that effect.
Mike Penning: Will the Minister give way?
Andy Burnham: No, I will not, because I listened to the hon. Gentleman at length. [Interruption.] Well, that was the distinct impression that I got when listening to the points that he made.
Mr. Baron: Let us be absolutely clear. There is already an independent structure for the making of complaints; what we are talking about here is qualifying liabilities in tort. The Minister risks confusing the two, so let us restrict our comments to qualifying liabilities in tort. He suggested that independence can be imported in some way. He has clearly stated that he believes that the scheme is not independent and he suggests that importing lawyers—so to speak—will somehow make the scheme independent. The trouble is that lawyers do not turn a non-independent scheme into an independent one, because they assert or defend legal rights. I ask the Minister to address that point. In addition, expert medical advice would be available to patients anyway, and that right would be ensured—guaranteed—under our system by the independent person overseeing the investigation. So again, this scheme does not add value.
Andy Burnham: The hon. Gentleman is entitled to draw his own conclusions from my explanations. Let me say again clearly that he is right in that, for a case to qualify under the scheme, there has to be a recognition of a liability in tort, and that it then follows that there is a likelihood that compensation or other recompense might be due under the scheme. That is the qualifying gateway for cases dealt with under the scheme. However, we are proposing the breathing space of an out-of-court settlement scheme, so that it is not necessary to go through an expensive and polarised legal process in which people dig in for a long and complicated battle, often to the great frustration of individual patients who are kept waiting for a long time. In many instances, those cases are abandoned or do not come to court.
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.
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