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By contrast, what seems to be more important to the Governmentthe Minister has been honest enough to admit this at the Dispatch Box, as he has beforeis the ownership of the process itself. They freely concede that the scheme is not independent. As the Minister clarified, the amendment in lieu would not introduce the concept of independence in any way. The Minister argues that, if trusts have ownership, they will somehow be more likely to bring about a cultural shift in openness and transparency. Most people will find that entirely contradictory. The Government are trying to put the cart before the horse. NHS ownership of the scheme might be appropriate for a health system that is characterised by openness and transparency, but it will not in itself get us to that point, as history has shown.
As we have heard, the Government wish to introduce elements of independence, rather than to embrace independence itself. It might be worth while for the House to scrutinise quickly those elements of independence. The Government suggest that legal advice will be available prior to any offer. We are happy with the concept of legal advice being made available at the time of an offer because legal rights would be considered at that point, but giving legal advice prior to an offer will not make the investigation of the facts independent. Such legal advice will introduce adversarial elements, even though legal rights are not being determined. It will cause a replication of the cost and complexity of litigation.
The Government also argue that the scheme will make available expert advice, but such advice should be independent anyway. We do not need a scheme to make medical expert advice independent. Meanwhile, it is not clear whether medical reports will consider fact, fault, causation and condition, or whether they will be disclosed.
The Government suggest that the fact that patients will be able to complain to the ombudsman is another important aspect of independence. However, that applies to complaints of maladministration, rather than substantive investigations of the facts. The Government also point out that, if patients are not happy with the findings of the scheme, the courts will be available. Perversely, that shows the failure of a scheme that purports to provide a genuine alternative to litigation. Advancing such an argument almost defeats the purpose of the scheme itself.
Unless an investigation of the facts has a badge of independence to reassure patients, the scheme will add nothing whatsoever to what can already happen. As we have mentioned, NHS trusts already have the ability to investigate themselves and the NHSLA has the power to make an assessment of liability and, when appropriate, offer compensation. I put it to the Minister that, unless the Government concede on independenceI do not expect that they willthe Bill will be a wasted opportunity in many respects.
I wish to touch briefly on separation, because I think that it is relevant to independence. The scheme must be a two-stage process with a strict separation between the functions of fact-finding and fault-finding. An investigation of what happened should not be contaminated by considerations of who was to blame. There is ample legal authority for the rationale of such separationthe principle behind the Inquiries Act 2005 and the coroners courtsso it is happening throughout the country.
There is also ample case law of the Court of Appeal that recognises the rationale for the separation of fact-finding from determination of legal liability. We envisage a wide-ranging inquiry that may consider matters of medical professional practice, but does not consider issues of legal liability. That limitation is appropriate because the inquiry is not a court: legal rights are not being defended or asserted.
The scheme, as envisaged, would separate fact-finding from fault-finding in that, locally, it is for the NHS body to carry out the investigation into the facts, and it is then for the scheme authority to consider whether there is liability and, if so, what it should be.[ Official Report, Standing Committee B, 13 June 2006; c. 67-68.]
Does the Minister stand by those remarks? Will he guarantee that there will be a separation of functions between the trust investigating what happened and the NHSLA considering issues of liability? Will he confirm that the body responsible for defending the NHS against claimsthe NHSLAwill have no role in determining the facts of the case? I invite the Minister to respond now to those questions.
Andy Burnham: I am happy to do so. I do indeed stand by what I said in Committee, but I think that the hon. Gentleman has in mind a more rigid separation than we do. As I described in my opening remarks, we believe that there will be discussion between the scheme authority and the local trust on the quality of the report and of the investigation, on whether there are gaps and on whether further information needs to be provided. I have in mind a more iterative process and more exchange of information between the bodies. If the hon. Gentleman is asking me to confirm that it is principally the trusts responsibility to carry out the investigation and the scheme authoritys role to advise on liability and quantum, I am happy to do so.
Mr. Baron: I thank the Minister for that clarification. For the record, I am not suggesting a rigid structurefar from it. All I am suggesting is that the function of fact-finding should be confined to the trust investigating at the fact-finding stage. That should not prevent correspondence, liaison and communication between the NHSLA and the trust, as long as the NHSLA plays no part in determining the facts of the case. It must be absolutely clear that the trust determines the facts. Can the Minister confirm that?
It is because we have in mind a unified, coherent scheme wherein trusts work closely with the scheme authority to ensure both that thorough
and detailed investigation reports are produced and that, based on those reports, correct offers of settlement are made. We have in mind a single scheme, not a multiplicity of schemes once the investigation stage is complete, as the hon. Gentleman seems to envisage. We propose a coherent whole so that we might avoid the need for the legal process and thereby improve the patient experience and reduce the cost to the system as a whole.
Mr. Baron: I suggest to the Minister that his remarks are somewhat contradictory. He has made it clear at the Dispatch Box that he accepts that the fact-finding stage will remain just thata process to determine the factsand it will then be up to the NHSLA to assess liability. I therefore cannot understand why that clear separation of the two functions cannot be spelled out on the face of the Bill.
I ask the Minister to turn his attention to the investigation reports. Clarity about what the report covers is important. Will the report made available to the patient cover only the fact-finding stage, or will it include the fault-finding stage as well? That is important. Any offer will, presumably, be made on a without prejudice basisin other words, it cannot imply liabilitybut the reports will not ordinarily be disclosable if they include the fault-finding stage, because they might imply liability. The reports should therefore be restricted to the fact-finding stage only; otherwise, the scheme risks being functionally incoherent. Will the Minister clarify that point for the House?
Andy Burnham: The intention is to make the report available to the patient at the point of an offer being made. I stress that it is the trusts reportthe local investigation carried out by the trustthat will be made available. The intention is that that would be made available simultaneously with an offer being made, so the two documents would be read together by the patient.
Andy Burnham: I clarify again that the report would be the product of the local investigation carried out by the trust. I would encourage trusts to go further than simply laying out the facts. If they wanted to make an apology to the patient at that stage or explain what process changes have been made to prevent the same thing from happening again, it would be right and proper for them to do that. I would encourage them to do so, rather than delivering a mechanistic report dealing solely with the facts of the case.
Mr. Baron: I am happy to agree with the Minister. I do not think we have ever disagreed on that point. The trusts role is also to give an explanation and an apology, if appropriate. I thank the Minister for clarifying that the report will cover the investigation undertaken by the trust into the facts. That is extremely important.
I know that others wish to speak, so I shall touch only briefly on one or two related issues. We all agree that legal advice should be available at the point when
an offer of compensation or settlement is made, since legal rights may be determined if they are waived as part of a compromise agreement. However, in an attempt to bolster the independence and credibility of their scheme, the Government have proposed that free legal advice should be made available before legal rights are determined.
That, in our view, will merely encourage confusion between fact-finding and fault-finding within the scheme, for it is the job of lawyers to assert or defend legal rights. Our concern is that accusations of blame will contaminate the fact-finding process. That will lead, in contrast to what the Minister suggests, to a more closed and defensive culture among NHS staff. As a result, important lessons may not be learned. Such an approach contradicts the Secretary of States opinion on Second Reading that lawyers should be kept out of the investigation.
In our view, lawyers are not required during the fact-finding investigation, since legal rights are not being asserted or defended. Much has been made of the contribution of so-called specialist lawyers. The Minister referred to
a specialist quality mark in clinical negligence.[ Official Report, 13 July 2006; Vol. 448, c. 1563.]
The evidence shows that specialist solicitors are much more likely to make an accurate assessment of the chances of success in claiming compensation for clinical negligence.
I have asked AvMA to produce the evidence, which it has been unable to do. It should make it clear in its promotional literature that there is no evidence to substantiate its claims. I believe it will eventually be required to do that. That is important, because if the Government seek to bolster the independence and credibility of the scheme by involving specialist lawyers, the performance of such lawyers must be measurable and stand up to independent scrutiny.
Mr. Siôn Simon (Birmingham, Erdington) (Lab): I declare an interest as a trustee of AvMA. In the hon. Gentlemans view, do non-specialists with no particular knowledge or expertise in a subject have knowledge and expertise as good as people with many years of in-depth knowledge and expertise in that subject, and are they therefore likely to be as successful?
Mr. Baron: I can understand why the hon. Gentleman asks that question as a trustee of AvMA. However, whenever we have asked AvMA to provide evidence to substantiate that claim, it has been unable to so; eventually, it will have to address that point.
We share and support the Governments good intentions as regards providing a genuine alternative to litigation, but the issue of independence is of such crucial importance that their lordships were right to send the Bill back for further consideration. Independence will make the scheme more credible in
the eyes of the patient and will promote a culture of greater openness in the NHS. I therefore invite the Minister, even at this late stage, to agree with the Lords about the importance of independence and the separation of fact-finding and fault-finding; I think that he has done so on the latter. If he does not agree with the concept of independence, patients will be the poorer for it, and we will therefore have no alternative but to ask the House to oppose the Governments amendment.
Sandra Gidley (Romsey) (LD): I support the comments made by the hon. Member for Billericay (Mr. Baron), who has gone into the issues in some depth. It is a good job that I did not prepare such a lengthy and in-depth speech, because I would not have had time to deliver it.
There is broad agreement on the general principles of the Bill, which has been welcomed in all parts of the House. It is right and proper that patients are encouraged to complain and that trusts are engaged proactively in that. However, throughout the Bills passage, Liberal Democrat Members have tried hard to establish two clear principles: a clear separation between fact-finding and fault-finding, and the independence of the process. It has become gradually more apparent that the Government intend that investigations should be thorough and that all the facts should be established before an inquiry is handed over to the next stage. We would prefer a slightly more rigid separation, but we can broadly agree that everything is moving in pretty much the right direction. However, there remains a problem with the NHS Litigation Authority taking over at that stage, because its job is, in effect, to protect the NHS from over-large claims and often to challenge such claims. Rightly, part of its remit is to protect the public purse, but that seems counterintuitive as regards the stated aim of the Bill, which is to be on the side of the patient. Many patient groups perceive the NHSLA to be on the side not of the patient but of the NHS. However, this is not the place to rehearse those arguments at length.
In the time that I have left, I want to concentrate on the outstanding point of differenceindependence. During the Bills passage, there have been numerous attempts to introduce different mechanisms for dealing with that problem that the Minister could accept. He has been generous in other parts of the Bill, so I hope that he will forgive me for saying that he seems to be bogged down in those mechanisms and has found fault with each idea without recognising the broad principle. When we saw the Governments amendment, our first thought was that it could represent a concession whereby the Government could introduce independence if they so wished, but sadly that has proved not to be the case.
The Government has shied away from the Chief Medical Officers recommendations, only two years ago, and wants to introduce a system that is unfair, is not independent and less rigorous.
Dr. Gerard Panting of the Medical Protection Society made a slightly different point when he said that, for the NHS redress scheme to command the confidence
both of the public and of health care professionals, it is important that independent advice be available. Most of the patient groups that I have spoken to have expressed concern that an in-trust investigation would not be independent.
The Minister will forgive me if I go back to an earlier time in my life, when I was part of the advisory group that worked up the previous complaints system. We all, in good faith, believed that an in-house complaints investigation system could work. He will also know, because this will have landed on his desk now and in previous incarnations, that we were wrong. As an NHS chairman, like the noble Baroness, Lady Murphy, I chaired a community health service NHS trust and had to sign off the letters responding to complaints. Very often, I felt that the trust investigated itself fairly. Sometimes I did not. Either way, it was equally clear that the punters outsidethe patients and their familieswere dissatisfied because no one outside had had a proper look.[ Official Report, House of Lords, 25 October 2006; Vol. 685, c. 1243.]
Clearly that is something that we want to avoid. I believe that the Minister is well intentioned, but I hope that he will learn from the experience of others that this provision is potentially flawed.
An independent overseer would be in a better position to identify the organisational dysfunctions that we must acknowledge occur in some organisations. I am pleased that the Minister has said that he will review the issue. Will he describe the time scale involved? Will he also consider introducing either a pilot scheme or enabling legislation so that trusts may choose whether to have an independent overseer? Alternatively, there could be a few experimental areas in which independence is tried out, so that when the system is reviewed, we can make a full comparison to determine which method works best in the interests of patients.
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