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I honestly do not know how one can get independence in the health service. The noble Earl suggests that someone from a different trust could be brought in. If my memory serves me correctly, this often happens with police authorities: a chief constable from one authority is brought in to oversee, or look at the problems in, another authority. What is the cry? “You cannot trust the police to investigate themselves.” I suggest that exactly the same thing would happen in this case. It is quite wrong to sow the seeds of the suspicion that the medical profession cannot investigate itself. For my sins, I sat as a lay member of the General Medical Council on its old disciplinary committee. I was constantly told that, although I was a lay member and independent, I could not be trusted because, not being a medic, I would automatically accept the views of the medical profession. All I say in this debate is that we have come a long way with this Bill. I wish we could achieve an absolute guarantee of transparency, of fairness, and that in every case the right result would be achieved. What we can hope for from this Bill is that the progress made will lead to more satisfaction, less delay and better care of the patient.
My Lords, I was a strong supporter of this Bill at Second Reading. It is fundamentally worthwhile to get early resolution of these cases, keeping down legal fees and the frustration of patients. I have administered complaints systems in the NHS for the past 15 years or so. The problem has always been that when local resolution fails in-house, and goes on to the next stage of the convenor system, it is perceived by patients to be partisan. As one patient’s relative said to me: “You think you are appealing to an independent person, and you get an answer on the headed notepaper of the organisation you are complaining about”. The system thereby encourages people to seek independent legal advice. Unless we have, in here, the principle that the fact-finding, at least, should be independent, we will not encourage patients to accept the fact-finders’ reports., We should remember that fact-finding is usually the most disputed part of the case.
I know the Minister is concerned about the costs, but we do not yet have regulations worked out. There is everything to play for in the practical implementation of the scheme. We know that it is possible to set up panels of people from the local community to do a number of jobs around the NHS, very professionally, with the right support and training, without incurring costs. For example, people who serve on research ethics committees have to do
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It can easily be worked out how these schemes could be administered so that there was an independent fact-finding element. We have heard of one possibility which I believe would be quite practical. In any case, fact finders will require training, and that will cost, whether it is done in-house or out of house. It is a detailed job that needs a lot of professional work, but it does not have to be expensive.
This issue could be delegated to regulations but having an independent fact finder is such a fundamental principle of an effective complaints system that it should be in the Bill. It would add immeasurably to the confidence that patients have in the scheme, which is why I have added my name to Amendment No. 4A.
Baroness Neuberger: My Lords, I thank the Minister for the things he has said that have given us a degree of comfort. I speak on this amendment again, in sadness more than anger. This has been a long-running saga, as the Minister indicated, and I pay tribute to him for accepting that some level of independent oversight of the NHS redress scheme is necessary. He stated in terms back in February that the Healthcare Commission would make looking at how the scheme works part of its annual review,and he has repeated that today. The Healthcare Commission is regarded as independent, and that is good news. But as my noble friend Lady Barker said in further consideration of the Bill, and as the noble Earl, Lord Howe, said from the Conservative Benches in previous debates, this is still not enough. We accept that both sides can instruct an independent medical expert, but even that is not adequate when there is no clear fact-finding separate from the fault-finding.
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 his 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 had investigated itself fairly. Sometimes I did not. Either way, it was equally clear that the punters outside—the patients and their families—were dissatisfied because no one outside had had a proper look.
I know the Minister will tell us that this would add hugely to the costs; he has already done so. Let me put it to him like this: whether investigation is done internally or externally, as the noble Baroness, Lady Murphy, has already said, someone has to be paid to do it. They also have to be trained and their activities monitored. Irrespective of being inside or outside the trust concerned, that is the case. If, for instance, non-executive board members from neighbouring
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Why does the Minister think that it would cost so much more when the amount of time spent on investigating complaints by the trust’s own staff is also considerable? It does not make sense to me. What does, however, make sense is that patients and their families have little faith in a wholly internal system of investigation of complaints. We were wrong when we thought they would have confidence, and we need to recognise that for what it is—a fact. Given that, surely the Minister can see some way to allow fact-finding before any assessment of fault, independent of the trust concerned. Surely he can see that it would be perceived as fairer by the patients and their families to go down that route.
Given that the scheme authority is to be the NHS Litigation Authority—we all feel that it has a clear role to play here—it might be thought that a wholly internal investigation conducted by a trust, although at a distance under the NHSLA’s auspices, could amount to a conflict of interest. The NHSLA, as the noble Earl, Lord Howe, has already said, has legitimately to try and keep the lid on compensation payouts to the public. Many of us would say it was quite right that it should do so. That means, however, that it does not necessarily have the interests of individual patients close to its heart. However, if the NHSLA is the body that makes the offer but the investigation that went on before had an independent element within it, people might trust the system more. The non-exec route is one possibility, while groups like the people who serve on research ethics committees are another. That is still to be debated, and regulations are still to be written. The system might not then be seen to be unfair, with a trust likely—in people’s minds, at least—to exonerate itself, and a scheme authority wanting to keep the payouts low.
The advantage of independent oversight of fact-finding also goes to the heart of the Chief Medical Officer’s original intention in Making Amends. He wanted to see the National Health Service become a learning organisation. If fact-finding is independent but it is people within the broader NHS family, such as those who serve on research ethics committees and other non-execs from neighbouring organisations, who discuss the matters with those they are investigating, there does not need to be an automatic blame culture. Things go wrong and mistakes happen, but they can be discussed within the organisationwith sympathetic but outside supervision of the investigation before the fault-finding even begins.
In his consultation paper on the governance of doctors, Good doctors, safer patients, published last July, the Chief Medical Officer, Sir Liam Donaldson, put forward a two-stage scheme for investigating doctors. I quote:
“In serious fitness to practice cases ... investigation ... should be carried out by the General Medical Council but formal adjudication should be undertaken by a separate and independent tribunal”.
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That was clearly in reference to serious cases, but earlier in the same report he had argued that:
“As the complexity of both medicine and the system within which it is delivered increases, the General Medical Council cannot reasonably be expected to fulfil the roles of complaint recipient, processor, investigator, prosecutor, judge and jury. Involvement of a single organisation in all of these processes brings with it difficulties that are philosophical, presentational and practical”.
I could not have put it better myself. What Sir Liam wrote may apply to medical regulation, but the principle applies to any scheme where one authority is to be in charge of both the investigation and the redress, hence our continued demand for an independent element in fact-finding and our desire for it to be seen as being separate from fault-finding. That is why we are back here at this stage, making the point yet again.
The Government have accepted that this is a two-stage process. We know the scheme is relatively inexpensive; we all recognise and applaud that. Indeed, when we were originally told of the Bill’s arrival, we were all delighted. Such an attempt to help in cases of clinical negligence is long overdue. If it is to work, however, it has to have certain elements: independence—we have been arguing for it each time we have come back to this subject—sufficient for patients to trust the fact-finding involved, and it has to carry trust more generally.
We are not alone. Just to make the point even clearer, the chairman of the Bar Council has written to me on the subject this very week. The very distinguished noble Lord, Lord Patel, who expresses his regret that he cannot be here, has written to me saying how strongly he supports the desire to have independence here. InterResolve has written about it. The noble Lord, Lord Hughes of Woodside, has made the point.
It gives us no pleasure on these Benches to keep pressing for a reasonable level of independence in the scheme, and it gives me no pleasure to say that the NHS Litigation Authority on its own will not be seen as independent as the scheme authority without an independent element in fact-finding. The Healthcare Commission’s oversight and the responsibility of Ann Abraham as the ombudsman give us some comfort, but that is not yet enough. I hope the Minister will see his way to accepting that this amendment and those that go with it are intended to bring some public trust to this scheme, and that he will recognise that it is not that expensive. The costs do not need to be huge, as the investigation has to happen anyway.
We all want to see a good, solid, trusted NHS redress scheme. I hope the Minister will give us the assurance that we can have some real independence in the fact-finding in this process.
5.45 pm
Baroness Knight of Collingtree: My Lords, it is often a very simple matter to deduce why the Commons has rejected amendments passed in this House, but I am puzzled about this one because surely it is unarguable that no verdict can be seen as just if those reaching it are biased or clearly linked with one
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The Minister pleaded the case that the cost would be too high. Is it too expensive to have justice? Is it too expensive to ensure that decisions made in this land of ours are reached fairly and justly? I think not. I have argued for years that natural justice is not served when suspended hospital doctors are judged by those who suspended them. No judge in any court would have his judgment accepted if he were known to be very much on the side of those to whom he awarded a favourable verdict. Even the chairman of the most modest and humble committee is expected to be impartial. Surely investigation must be not only open and conducted solely on facts but clearly seen to be exactly that. Do the Government not recognise that deep resentment will be caused in doctors and patients if this un-British amendment of the other place goes through? Is the Minister impressed—I hope that he is—by the fact that noble Lords on all sides of this House are begging him to accept that we need to have a just conclusion to these matters?
Is the Minister not moved by the fact that many people outside this place have written to us about this matter, as the noble Baroness has just pointed out? I have received letters and I have no doubt that other Members of this House have received them as well. I felt so strongly about this that I was determined to make a small speech. It is such a basic point of justice that I could not keep silent.
Baroness Masham of Ilton: My Lords, I remind your Lordships that the community health councils have been eliminated and now the patients forums are going. Therefore, patients do not have an independent voice to help them. I support the noble Earl’s amendment.
Lord Warner: My Lords, I consider that we do have a just conclusion. I am sorry that I did not get my points across clearly. I shall reiterate briefly one or two of the points that I made and challenge the amendment’s intellectual basis.
In my opening remarks I mentioned the number of elements in this scheme which have a fair degree of independence. I mentioned independent legal advice and independent medical advice. There are provisions in the Bill that you can make requirements on the experience and qualifications of the investigator. There is the ombudsman waiting in the wings for complaints. There is the Healthcare Commission, which I think everyone will agree is very independent, and it is overseeing the functioning of the scheme.
Let us examine what the Commons actually rejected. By a majority of 95 votes, it rejected a
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I have not heard any answers in any of the speeches that have been made to the questions that I raised about this proposal in my opening remarks, yet people want to place this in the Bill. I am going to repeat those questions, because they are relevant. What if the member carrying out the investigation and the independent overseer do not agree about the investigation report? That is not fanciful; that is quite possible. Who resolves that conflict? Who provides support to the overseer? Does the overseer just come along and decide whether they like the look of the draft report at the end of the process? Do they track the quality of the investigation by the investigator? How do they monitor and carry out their oversight arrangements? Those are the practical things that would determine whether the scheme works well.
The scheme has been introduced at the very last knockings of the Bill without any explanation of how it would work. If the Government come along and have a go at making a general provision, rightly we are interrogated in Committee about the details of those schemes. Here are the opposition Benches coming along and trying to put in the Bill a set of proposals that have not previously been discussed, for which they can give no explanation of how they would work or how much they would cost. I am charged with exaggerating the costs; I do not know what the costs are. I cannot see how it would work in a very clear way if we do not know exactly what the overseer would do or how much detail they would have to give to the investigation.
The noble Earl, Lord Howe, said that it is said that patients will have no idea whether their claim has been investigated fairly. However, the Government have tabled an amendment to explicitly require the redress scheme ordinarily to provide an investigation report to be prepared and provided to the individual. That is a new approach. The individual sees that investigation of the facts, and they are then in a position to challenge that report if they think it is unfair, using legal advice and independent medical advice. We have put things very clearly in the Bill that support the independence of the investigation and will ensure that patients are properly supported. We have learnt from the past; we have introduced changes here that make it much more likely that patients will get a fair shout on this issue. I come back to the point that we really do have to know how an overseer system would work, because it looks remarkably to me like the panel of investigators by another name, which was rejected by 95 votes in the other place.
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Earl Howe: My Lords, the Minister said much that was helpful, but I am extremely disappointed that he has not acknowledged the central point of principle here. He acknowledged it obliquely by listing those elements of the scheme that will provide a measure of independence. Yes, we can assume that the legal and medical advice received by a complainant will be independent. The ombudsman is clearly independent, as is the Healthcare Commission, but my concern is that patients look at the scheme and see a closed process that is not transparent as it deliberates.
A report will be produced at the other end, but you cannot see that report at the outset. I do not wish to accuse the Minister of disingenuousness, but that is the word that springs to mind when he protests that we have not fleshed out how independence would be imported into the scheme. The Government have not fleshed out many of the details of the Bill; it is a skeleton Bill and we have had extensive debate on many aspects of it, but much needs to be fleshed out in regulation.
I have outlined one way in which the element of independent oversight could be imported; that is to say that the person charged with responsibility to deliver a full and fair investigation of the facts should come from outside the trust being investigated. That is not a complicated proposal. The noble Lord, Lord Hughes, helpfully drew our attention to a parallel from the police service. That is exactly right. It is not an unworkable system—
Lord Hughes of Woodside: My Lords, I thought that I had made it clear that the general public did not accept that a police authority investigating another police authority was independent or acceptable.
Earl Howe: I am not so sure about that, my Lords. I differ from the noble Lord on that; a much greater degree of confidence is perceived by the public when such an arrangement is put in place.
The Minister listed a raft of practical difficulties in this matter and pointed out that I had not made clear how, for example, a conflict of views would be resolved, how the independent overseer could be supported and so on. Those are not complicated questions to resolve and are certainly not beyond the wit of all of us, with good will, to sort out between now and a further day when the Bill could return to this House, should I decide to divide it.
This is an issue of principle. As the noble Baroness, Lady Neuberger, indicated, the concern is not confined to this Chamber or even to Parliament; it extends much more widely than that. The need for an element of independence in the scheme, in whatever form, is an issue of principle. Because I want the scheme to work well, we owe it to ourselves to ask the Government and the other place to have one further look at this issue.
5.59 pm
On Question, Whether the said amendment(No. 4A) shall be agreed to?
Their Lordships divided: Contents, 149; Not-Contents, 133.
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