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As I explained, we amended the Bill to improve openness, transparency and accountability for the patient concerned. Let me make it absolutely clear, however, that we do not favour an independent scheme, as we would lose the benefits of an NHS trust owning up to, and being open about, mistakes that have been made, learning from them and making changes to prevent such things from happening to other people. That is preferable to a process whereby a third party is engaged to look at the trust and its performance, which would not foster the culture that we are trying to achieve. The right to an independent
investigation is not affected by the scheme, as people still have the right to pursue independent legal action if, after receiving the investigation report, they are not confident that their case was adequately investigated. They retain the right to progress to an independent stage. To pull independence into the scheme would create something different, as it is a first-stage scheme. The hon. Gentleman will know that any organisation that receives a complaint conducts a first-stage investigation itself before moving to the second stage, where independence comes into play. Opposition Members have confused the two notions.
Mr. Stuart: In Committee, the Minister said that the process would be quick if it was carried out by someone involved in the case. We fear that quickness, because the investigation would be conducted in the interests of an organisation investigating itself. We are still at a loss to understand why the patient who has been wronged should have confidence in the investigative report, even though we are glad that the Minister agreed to allow one to be made. Without independence, that patient will not trust the report.
Andy Burnham: I appreciate that the hon. Gentleman and the Conservative party feel that the scheme should be independent, but we are proposing something different. We are proposing that when the NHS receives a complaint, it take ownership of it and engage positively and constructively with the individual concerned, rather than passing them from pillar to post, or, as often happensI am sure that the hon. Gentleman can give examples of this from his constituencyfor the shutters to come down and people to be forced away. It is much better to encourage a local investigation, and for local learning to take place, and for there to be engagement with the reasons why an individual has presented with a complaint under this scheme. It is a different model entirely to suggest that that should be done independently.
There have been various different suggestions, such as having redress investigators or an employed third partyalthough we did not find out more detail about thatand now we have the idea of having a non-executive director, perhaps from a neighbouring trust. Those options would be extremely costly and they would also not be workable.
Mr. Baron: All we are suggesting is that the person who oversees the investigation should be independent of the trust. That is not an expensive option; it is certainly not as expensive as the Government believea figure of £41 million has been mentioned. It is absolute nonsense to say that what we are suggestingthat someone independent should come in and head the investigation and oversee thingswill create a vast increase in cost.
On the point about various options, I repeat to the Minister that this is enabling legislation; the detail will be in the regulations. We have put forward suggestions by way of probing amendments, but the principle has been the same: simply that the trust being investigated should not investigate itself. We have tabled probing amendments, but the principle has been absolutely constant: it is a question of independence.
Andy Burnham: The hon. Gentleman says that that does not make it right, but that is what matters in our parliamentary processand if he has plans to change it, I would be interested to hear them. As there was a majority of 95 in favour of our proposals, having made amendments such as we did and having listened throughout the progress of the Bill, I am surprised that we are still debating it.
Do the Opposition really think that, if a neighbouring trust looks at a complaint involving another local trust, that will give the independence that patients are looking for? As far as I can see, that would still be the NHS investigating itself. However, beyond that I am not persuaded by the Oppositions principal point. I am persuaded by a scheme where the NHS handles such situations better itself.
I am sure that Members of all parties are united by a wish to see a better culture at the first stage when a patient brings a complaint. I am sure that we all find that patients end up in our offices because they do not receive a satisfactory response at that stage from the trust concerned. The only way to change that is to have a system in which trusts engage with complaints in a more constructive way. I fail to see how having independent investigations, where people come into the trust concerned who are not employed by the trust or are non-executive directors of another trust, would foster a better culture in handling such matters.
Mr. Baron: Let me put my point to the Minister in another way. This Bill is a wasted opportunity, as is suggested by the Governments amendments, because there is nothing in it that cannot already happen now. Trusts can investigate themselves now, and the NHS Litigation Authority can make an offer now. The point of introducing independence is that that introduces something new that will give credibility and thoroughness to the fact-finding stage.
Andy Burnham: I believe that the amendments that we have made to the Bill give precisely that. Because patients will be able to read in full their investigation report, they will decide for themselves whether or not that investigation has credibility. If they are not persuaded that it has, their statutory rights are not affectedto use the phrase. They can pursue that case further, because they have been provided with a full copy of that report. That is why I was disappointed to read the comments of Earl Howe, who seemed not to appreciate that we are providing the full details to patients. There is not a closed process, as he described it.
An amendment was made, in response to pressure from the hon. Member for Romsey, which is a material change to the Bill that strengthens the patients ability to pursue their legal rights if they are not persuaded by the quality of the investigation. Such an investigation, carried out locally by a trust, would be assessed by the scheme authoritythe NHS Litigation Authoritybefore any assessment of liability or quantum was made. It would assess the quality of that investigation
and examine whether it had analysed sufficiently the questions that needed to be checked, so there would be a check on the process.
To be honest, there is no major disagreement between us, and I do not believe that the hon. Member for Billericayhand on heartreally thinks that there is. The scheme has been improved because of parliamentary scrutiny, but if the investigation were independent, that would create a very different scheme, and I hope that he appreciates that.
Meaningful independent oversight will require additional resources in the form of increased staffing and additional bureaucracy to support those undertaking such oversight. They will need support staff to administer the flow of cases, and reciprocal arrangements between scheme members will need to be put in place. We should not forget that the scheme goes wider than NHS trusts and foundation trusts.
Does he or she
sit on the shoulder of the investigator? How far do they follow through the investigation? Are they a duplicate investigator?[ Official Report, House of Lords, 25 October 2006; Vol. 685, c. 1247.]
He was right to ask those questions, but there are further questions. If an investigation is carried out by the scheme member but overseen by an independent person, will the scheme members staff be answerable to their employer or to the independent overseer for the reports content? What if there is a conflict? What if the member carrying out the investigation and the independent overseer do not agree on the facts in the investigation report? Who resolves the conflict? All sorts of potential problems could arise. How can we possibly agree to amendments tabled and suggestions made by the Opposition when there simply is no workable detail to support the claims being made?
Mr. Graham Stuart: I am extremely grateful to the Minister for giving way; he is being very generous. How do he and the Government plan to measure this culture change in the NHS? Are there means in place that will enable the House and those outside to see whether the Minister is right, and that the culture change has indeed been effected without the introduction of our kind of independence?
The hon. Gentleman makes a very reasonable point. We are clear that we want the establishment of this scheme to lead to a much improved experience for the patient and to a reduction in the costs paid by the NHS in fighting clinical negligence claims. I am happy to give a commitment at this Dispatch Box to reviewing whether the scheme achieves the aims that we are setting out for it, and whether it does indeed promote a better culture in the NHS at local level to enable engagement with patient safety issues, because ultimately, that is what we are talking about. This is about clinical governance and patient safety: whether the scheme promotes a learning culture within local organisations, whether it provides a better experience for the patient seeking redress, and
whether it enables trusts to reduce the amount that they pay out in fighting lengthy and often difficult legal cases.
However, I take the point made by the hon. Member for Beverley and Holderness (Mr. Stuart), which is a fair one. We should review the scheme to see whether it achieves the objectives that I have set out. If it does not, perhaps other options could be followed, but I have been over this ground many times in preparing for taking the Bill through this place, and I am confident that we are doing the right thing. Many trusts are already adopting a very different agenda because of issues such as patient choice and the need to look more carefully at patient satisfaction. I am confident that a change is already being effected on the ground, but I am happy to agree with the hon. Gentleman that there should be an ongoing review of whether that meets the stated aims.
Mr. Stuart: The Minister said that one of the outcomes that he seeks is a reduction in the pay-outs made by trusts. Even if he is right and the Governments proposed system effects a cultural change, is it not possible that there may be an increase in pay-outs because of an NHS that better recognises the mistakes that it has made? I am grateful to him for being so frank and laying out possible measures, but I wonder whether the one that he has described is the right one.
Andy Burnham: The hon. Gentleman is right. My predecessor acknowledged that this scheme might, by facilitating access to redress, lead to more people bringing forward cases and fewer people abandoning cases. As the hon. Gentleman knows, because he was on the Standing Committee considering the Bill, a high proportion of cases are abandoned.
The measure is not principally a cost-cutting scheme. What we want to do is reduce the money that is spent on fighting lengthy processes. That may lead to more money being paid out in redress to those patients who deserve that redress, but it should lead to a reductionthe hon. Gentleman has helpfully given me the opportunity to be clearer about thisin the costs spent in fighting a legal process. As he knows, they can be considerable.
I was putting on record some of the complicated questions that have yet to be resolved. Someone has to have the final say, and that person has to be knowledgeable about the facts of the case and how the investigation has been undertaken so that they are able to take decisions. It must be someone who has been involved throughout the investigation process, not simply someone who reads the final report.
The arguments about costs and bureaucracy will not go away. We were told in another place that surely the cost implications were de minimis, but members will still have to carry out their own investigations so there will be duplication and therefore extra costs. Members will not hand over responsibility to another trust.
I have described the improvements that we have made to the Bill as it has gone through this House. I again pay tribute to colleagues who helped us in that process. As a result, patients will be given their investigation reportlet me be absolutely clear about
thatand they will also be given a report on the action to be taken to prevent the same mistake from happening again. That, in my view, is overwhelmingly what patients want. It will be a transparent process; patients will know full well whether the facts of their case have been looked into fairly and fully.
We agree with Opposition Members that the scheme will be given credibility by an open and robust investigation, but we have already provided for that. Credibility will not be given by one scheme member investigating another. We have also tabled an amendment that specifically enables a scheme to provide for investigations to be overseen by a person of a specified description. That overseer will not be independent, but the amendment demonstrates further our commitment to ensuring a thorough local investigation. The scheme can specify the qualifications and experience that the person who oversees the investigation by the scheme member at the local level must have. That will benefit patients. They will know who has overall responsibility for the investigation into their case and who to contact about their investigation.
I believe that I have been over most of the ground that we have covered and I hope that I have put before the House some of the areas where we have made changes and have sought to be reasonable. I am concerned that the amendments that we passed on Report were not fully appreciated by another place and I urge it to consider the fact that they were passed by a significant majority in this House. I hope that, following todays proceedings and the amendment that we are making to improve further the accountability of the NHS redress scheme, the scheme will now move forward and do what we want it to doget on with the job of building a better and more responsive complaints-handling process at local level in the NHS and provide a much more satisfactory outcome to patients who bring forward the complaints that we, as Members of Parliament, have to deal with.
Mr. Baron: As the House well knows, the NHS Redress Bill returns, having been amended in the House of Lords. This is the second time that the House of Lords has rejected the Governments proposal. More than 30 Cross-Bench peers voted for our amendment, whereas only one voted against it. That sends a clear signal that our amendment was passed because it is right in principle. It is about patient interests, not party politics.
As we all know, clinical negligence procedure is a mess. We can all agree on that. It is complex, unfair, slow, costly and wasteful. We welcome the Governments attempts to address those problems but are concerned that the balance between the interests of patients and the health service, as envisaged by the Government, is not right. The redress scheme proposes a genuine alternative for the high volume of modest-value cases. We fully support those good intentions and want the Bill to succeed, but the Governments proposals are fundamentally flawed and do not best serve patient interests.
Time and time again, patients tell us that they want an explanation of what went wrong and an apology if appropriate. They want to ensure that lessons are learned for the benefit of others. Compensation does not necessarily rank high in peoples priorities. The Governments amendments do not, in our view, best meet those priorities. As the Minister has highlighted, the reason for that
revolves around the issue of independence. The reason why the Bill has been sent back to us by the House of Lords is that their lordships believe that the investigation of facts under the scheme ought to be independent of the trust in question, whereas the Government believe that it ought to be a completely in-house process. Their lordships are right. Patients will not have confidence in an in-house system. That is why we shall oppose the Governments solution.
Opposition Members believe that the investigation should be overseen by someone who is independent and unconnected with the trust and with the NHS Litigation Authority. To us, independence is a fundamental principle of natural justice that is enshrined in the rule against bias: no man should be judge in his own case or cause. That avoids a conflict of interest. That is the one common concern of the many organisations outside this place that we have consulted. Even within this place, the Constitutional Affairs Committee, in its report, Compensation culture, last March, 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. We can all agree that the interests of the patient must come first, but the best way of guaranteeing those interests is to ensure that the investigation is independent so that it has credibility.
Andy Burnham: I am listening carefully to the hon. Gentlemans argument. Given that this is a first-stage complaints process, can he name one other public body, or any other organisation at all, that has independent investigation at the first stage?
Mr. Baron: The Minister is going back on himself in one respect, because the whole point of the scheme is that it should provide a genuine alternative to litigation. One key reason why people go to court is that they want to establish the facts in an independent manner. If this scheme is meant to be a genuine alternative to litigation, we should introduce that concept of independence in the scheme itself. Most organisations outside this place would agree with that. It is important to recognise that, if the scheme is an alternative to going to court, we should have regard to that basic need. Patients go to court because they want an independent assessment of the facts. I am afraid that the Governments proposals fail to recognise that basic point.
I suggest to the Minister that independence is important for another reason. We all want to help to bring about a cultural change within the NHS towards greater openness and transparency. What could be more open and transparent than inviting someone who is independent of the trust to oversee the investigation into all the facts? To most objective observers, a trust investigating itself will not necessarily lead to a cultural change. After all, that can happen now without the Bill: trusts can already investigate themselves and the NHS Litigation Authority can already make an offer of compensation. The Bill does not change that, yet the Government suggest that we need the scheme to encourage such a cultural change.
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