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The amendment makes clearer the intention that the scheme may require a member to give an individual of a specified description responsibility for overseeing the scheme. The provision will enable the schemeto specify qualifications and experience, to be determined after consultation with stakeholders, that such an individual must possess to undertake the role.
Amendment No. 13 splits Clause 10(2)(h) to avoid any implication that only a person who has given responsibility for overseeing the carrying out of functions can be given responsibility for advising on lessons to be learnt. As we draw up the secondary legislation, we may wish to enable bodies to appoint two different types of people to carry out the two functions. For that reason, it again seems preferable to retain flexibility by splitting up the function. I commend the amendments.
Moved accordingly, and, on Question, Motion agreed to.
Lord Warner: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3.
Amendment No. 3 is a drafting amendment consequential on Amendment No. 6, which we discussed in the last group and Amendment No. 7 is a consequential drafting amendment to Amendment No. 10, to which we shall come later. It may be convenient for the House if I explain the legal advice that I have received on Amendments Nos. 3A, 3B, 7A and 7B.
I understand that the amendments question the drafting of Clauses 6(1) and 8(1). The noble Earl, Lord Howe, has written to me about this. I know that he is concerned that the wording of Clauses 6(1) and 8(1) could give rise to ambiguity or incoherence. I have consulted my legal advisers—we have been back to parliamentary counsel on this—and I am satisfied that there is no realistic risk of that. I hope that I can provide some reassurance. This will be rather technical, but it is important that we put this on record.
The general powers in Clause 6(1) are intentionally subject to the duties imposed by Clauses 6(2A) to (4). Clause 6(1) appears to give the Secretary of State an unfettered discretion, but that discretion is in fact fettered by subsections (2A) to (4). In the context of the clause, we think that it is helpful to flag up the fact that the discretion conferred by subsection (1) is not as wide as it might at first appear.
Amendment No. 3B does not assist the reader of the Bill, as his attention is no longer helpfully drawn to the fact that the Secretary of State’s power is qualified. Furthermore, Amendment No. 3B causes ambiguity and confusion as the reader’s attention is now drawn to subsection (2B). Yet subsection (2B) merely confers another power. The reader’s attention is therefore drawn to another power. The power in subsection (2B) is linked to the duty in subsection (2A), but the reader’s attention is not drawn to subsection (2A).
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As I said, I have taken legal advice, including that of parliamentary counsel, and do not accept that there is, or could be, any realistic risk of ambiguity regarding the drafting of Clause 6(1). The Commons amendment to Clause 6(1) is properly drafted, according to the legal advice that I have been given. It helpfully draws the reader’s attention to the fact that the power conferred by subsection (1) is subject to the duties imposed by subsections (2A) to (4).
On Amendment No. 7, the general powers in Clause 8(1) are intentionally subject to the duties imposed by Clauses 8(2) to (4). Clause 8(1) appears to give the Secretary of State a discretion, but this discretion is in fact fettered by subsections (2) and (4) of that clause. In the context of the clause, we again think that it is helpful to flag up the fact that the discretion conferred by subsection (1) is not as wide as it might at first appear. Amendment No. 7B, again, would no longer helpfully draw the attention of the reader of the Bill to the fact that the Secretary of State’s power under Clause 8(1) is qualified. For these legal reasons, I encourage noble Lords not to pursue Amendments Nos. 3A, 3B, 7A and 7B and to accept Commons Amendments Nos. 3 and 7.
Moved, That the House do agree with the Commons in their Amendment No. 3.—(Lord Warner.)
Earl Howe moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 3, leave out “agree” and insert “disagree and do propose the following amendment in lieu”—
The noble Earl said: My Lords, in moving Amendment No. 3A, I shall also speak to Amendment No. 7A. I thank the Minister for his explanation of the amendments. I realise that the points are fairly legally abstruse. I wrote to him only because I received advice that the drafting was questionable. I note what he has said. I interpret his words as meaning that, for practical purposes, the wording is clear. As he knows, one of the issues that I flagged up was that a court, if we are to judge by case law, could interpret the word “may” as “shall”, because the power conveyed by the word “may” is fettered in the way that the Minister acknowledged. However, the Government and the Minister may be prepared to pay that price. I do not propose to press the point, and I will not press my amendment.
The Deputy Speaker (Lord Boston of Faversham): My Lords, as the amendment has been spoken to, I must put the question on it.
Moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 3, leave out “agree” and insert “disagree and do propose Amendment No. 3B in lieu”.—(Earl Howe.)
Earl Howe: My Lords, I do not know whether this is in order, but I beg leave to withdraw the amendment.
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The Deputy Speaker: My Lords, I am not allowed to say that that is perfectly in order.
Amendment, by leave, withdrawn.
On Question, Motion agreed to.
Lord Warner: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 4.
When the Bill was last in this House, it was amended to require the Secretary of State for Health to make provision for the appointment of patient-redress investigators. There was to be a panel of independent investigators, and the Healthcare Commission was to maintain a list of those investigators and oversee them. The independent investigation was to be confined to fact finding, and the scheme authority was to have no role whatever in investigations. It could not even provide advice or guidance to scheme members. To refresh the memories of noble Lords, the amendments were passed here by the narrowest of margins—one vote—and were comprehensively rejected in the other place by 95 votes.
When the Bill went to Report in the other place, there was no attempt to reinstate references to patient-redress investigators or the Healthcare Commission. I believe this to have been an appropriate response. The model passed in this House suffered from excessive cost and impracticality. On that occasion, I mentioned that Department of Health economists estimated that the cost would be £41 million a year.
We are now presented with a group of amendments that would enable the scheme to provide for independent oversight of investigation, with the person overseeing the investigation required to be independent of the scheme member in question and the body or person being investigated. I suggest that this is an attempt to reintroduce the concept, firmly rejected in the other place, of independent oversight of the initial investigation. This again raises many unanswered questions, the obvious ones being: who is to provide the independent oversight; how will these people be chosen, and by whom; what qualifications are they to have; to whom, if anyone, will they be answerable; how and by whom is administrative support and accommodation to be provided; and what if the member carrying out the investigation and the independent overseer do not agree about the investigation report?
In Committee in the other place we were toldthat there would be the same administration, but operating under the direction of an independent person, so that there would be no new bureaucracy. This seems to imply that the investigation will merely be checked by an independent person but from the wording of the amendment before us, I do not know how we can be sure of that. It seems strange to be introducing at this stage in the Bill an un-thought-out set of proposals that is uncosted and which must make the whole scheme more bureaucratic and difficult to explain to patients.
It is not as though we have not provided for independent oversight, and I know that Members on
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“I hope the fact that an independent review of complaints about the scheme will be available will give reassurance to both complainants and the NHS bodies involved”.
It certainly gives reassurance to the Government.
The Bill also takes powers that will enable the scheme to have other elements of independence. There may, where appropriate, be independent medical advice and evidence, and free independent legal advice that must be provided to people to whom an offer of redress is made. We have existing powers in Clause 10(2)(a) which will enable the scheme to require its members to charge an individual of a specified description with the responsibility for overseeing the carrying out of specified functions. This enables the scheme itself to provide that the person must oversee the investigation at the local level and have particular qualifications and/or experience. We envisage that the person given the task of overseeing the carrying out of investigations will ensure that appropriate information is properly collected and provided to the scheme authority. This will provide an additional check on the standard of investigation.
Finally, responding to concerns expressed by noble Lords about the need for an independent check on performance in the operation of the redress scheme, we intend that consideration of the effectiveness of the operation of the NHS redress scheme, including investigations carried out under the scheme, will be included as part of the Healthcare Commission’s annual review of the provision of healthcare by and for NHS bodies. The intention is that the Secretary of State would include a new standard relating to redress and that the Healthcare Commission would include new criteria against which the operation of the scheme would be reviewed. This role can be taken on by the Healthcare Commission without the need for any amendment to its existing powers. Because I know of the concerns about independence, I have gone through this to demonstrate the wide provision in the Bill for independent elements at the various stages.
5.15 pm
I want to say a little about natural justice because the term has been bandied about in this context on the issue. We need to be clear whether it is at stake here. It has been said in the Commons Committee that:
“Independence is a basic principle of natural justice enshrined in the rule against bias that no man may be judge in his own case”.—[Official Report, Commons Standing Committee B, 26/706; col. 1539.]
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That is absolutely right, but the rules of natural justice are rules of procedure. The common law recognises procedural fairness and this same principle is reflected in the rights contained in the European Convention on Human Rights. If decisions are being taken which determine a person’s civil rights and obligations, then the requirements of Article 6 of the European Convention on Human Rights must be met. There must be a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. We accept that.
However, the redress scheme will not involve any determination of civil rights and obligations. An offer may be made to a complainant, but it is only an offer. No rights will be determined when cases are investigated under the scheme in an effort to resolve disputes without having to go to court. It is standard practice for potential defendants to investigate, to try to discover what happened, and, if appropriate, to try to resolve matters without legal proceedings. Neither the rules of natural justice nor the rights under the European Convention on Human Rights require an independent investigation procedure to be established under the redress scheme. We have gone into this with a great deal of care, and this is the established legal advice in this particular area. There is no question of the NHS or the NHS Litigation Authority acting as judge in these cases.
I fear that some of the objections in this area lose sight of the purpose behind this Bill: to provide patients with the speedy resolution of low-value monetary claims without the need to go to court. We do not intend to set up a second independent judicial process or to duplicate the existing court systems. Throughout this Bill, we have argued that where a mistake is made, it is right that the scheme member promptly investigates the case, where appropriate makes an offer to resolve it, and learns from the mistake. If we remove or in some way fetter that responsibility, we damage the integrity of the scheme.
I must stress that the proposals put forward in this amendment are bound to lead to considerable additional bureaucracy, and they must lead to some costs—we do not know at the moment what those costs would be. It would mean there was no single body with overall responsibility to ensure consistency of approach, cost-effectiveness and good standards. If investigations are to be independent, it is hard to see how a separate bureaucracy is to be avoided, even where the role is limited to oversight. This is why we believe we should accept the Commons amendments, and not pursue the ideas and proposals in the amendments to them.
Moved, That the House do agree with the Commons in their Amendment No. 4.—(Lord Warner.)
Earl Howe moved, as an amendment to Commons Amendment No. 4, Amendment No. 4A:
4A: Line 1, at end insert “and insert “in accordance with natural justice such that the person overseeing the investigation is independent of the body or person 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);””
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The noble Earl said: My Lords, I beg to move Amendment No. 4A and shall also speak to Amendment No. 5A and Amendment No. 16A. I have listened carefully to the Minister and thank him for his full remarks. I would be the first to acknowledge that we have come a long way during the course of this Bill. There are a number of amendments incorporated into it as well as undertakings given by the Government that are positive and welcome. Yet it is with disappointment as well as a sense of genuine puzzlement that we on these Benches view the Government’s resistance to the single most important concept which we have sought to introduce into the Bill and into the scheme—independent oversight.
We genuinely want this scheme to work. I am not in the business of making life difficult for the Government just for the sake of it. We all know and all agree that there needs to be a workable alternative to civil litigation for patients who feel aggrieved about treatment they have received from the NHS. One of the main ingredients of a workable alternative is that it has to be credible. It has to command confidence. Patients have to believe that it will produce a fair result. What have we got? We have a scheme that will see a patient’s application for redress disappear into a closed process, one that is the very opposite of transparent. The patient has no idea whether the facts of his case have been looked at fairly or fully.
Additionally, we have, examining the claims and acting as the scheme authority, a body that is a part of the NHS itself. The NHSLA is not, in a true sense, independent of the interests of the trust whose actions it will be examining. Why is it not? Because one of the main functions of the NHSLA at present—a function which it fulfils with considerable success—is to defend the health service against claims made against it. That is essentially its current role. It is there not to take the patient’s part but to act on behalf of the NHS. How can patients regard the NHSLA, for all its in-house expertise, as having the necessary degree of objectivity and independence to do what is fair and right? They surely cannot. That is why we have sought at an earlier stage, with the approval of the House, to introduce amendments designed to import into the process that vital element of independence.
It is important to emphasise one thing here: independent oversight is needed at the initial stage of the process when the facts are being assembled. It is not necessary or appropriate thereafter. I am not suggesting that there should be independent oversight of the NHSLA when it comes to consider issues of fault and liability—it will consider those issues and make an offer of compensation at the end or not as the case may be; the patient can take the offer or leave it—but unless the patient is confident that the factual basis on which his claim has been considered is accurate and fair, it is very difficult to see how the scheme will command his confidence.
There are all kinds of ways in which this element of independence could be imported. At Report stage I proposed that there should be a panel of independent redress investigators, who would act rather as a
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My amendments preserve the concept of independence, to be fleshed out in regulations, and they also preserve the necessary accompaniment to independence—the separation of fact-finding from fault-finding. The scheme itself covers both elements but the wording is designed to make clear that there are two separate processes—fact-finding and fault-finding—under the aegis of the trust and the NHSLA respectively.
In another place, the Minister, Andy Burnham, conceded that the scheme would have to comprise de facto a two-stage process. I suggest, therefore, as regards this point, that there is not much separating the Minister and me. Indeed, one has only to look at Section 2 of the Inquiries Act to see that the separation of fact-finding and fault-finding is one that the Government accept as a way of achieving a ready separation between what is privileged and what is not privileged and as being conducive to achieving natural justice.
5.30 pm
Natural justice is what these amendments seek to achieve. I note that the Minister argues that this concern is out of place in the context of the redress scheme. I am sorry to hear him say that, because I disagree. It really is a question of patient confidence in the scheme. It is, I suggest, a nicety to point out that this is not a judicial process. Of course we agree that it is not a judicial process, but the patient will want fairness. I very much hope that the Minister can take these points on board and I look forward to hearing what other noble Lords have to say. I commend the amendment to the House.
Moved, as an amendment to Commons Amendment No. 4, Amendment No. 4A.—(Earl Howe.)
My Lords, I hesitate to intervene in this debate, since health matters are generally considered to be outwith the remit of Scottish Members. However, the issues of redress, and
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