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Norton of Louth, L.
O'Neill of Bengarve, B.
Palmer, L.
Patten, L.
Pilkington of Oxenford, L.
Rawlings, B.
Razzall, L.
Redesdale, L.
Rennard, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Roper, L.
Rowe-Beddoe, L.
Russell-Johnston, L.
Saltoun of Abernethy, Ly.
Scott of Needham Market, B.
Seccombe, B.
Selsdon, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Shephard of Northwold, B.
Shutt of Greetland, L.
Smith of Clifton, L.
Stevens of Kirkwhelpington, L.
Stewartby, L.
Stoddart of Swindon, L.
Swinfen, L.
Tebbit, L.
Teverson, L. [Teller]
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tope, L.
Tordoff, L.
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Tyler, L.
Ullswater, V.
Verma, B.
Waddington, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Wedderburn of Charlton, L.
Williams of Crosby, B.
Williamson of Horton, L.
Windlesham, L.
Acton, L.
Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Amos, B. [Lord President.]
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Bilston, L.
Blood, B.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Campbell-Savours, L.
Christopher, L.
Clark of Windermere, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Corston, B.
Crawley, B.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Donoughue, L.
Drayson, L.
Dubs, L.
Eatwell, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. [Lord Chancellor.]
Falkender, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Ford, B.
Foster of Bishop Auckland, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Gilbert, L.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Brookwood, L.
Gould of Potternewton, B.
Grabiner, L.
Graham of Edmonton, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howarth of Newport, L.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jones, L.
Jones of Whitchurch, B.
King of West Bromwich, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Leitch, L.
Lipsey, L.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Massey of Darwen, B.
Maxton, L.
Mitchell, L.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
O'Neill of Clackmannan, L.
Parekh, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Prosser, B.
Quin, B.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Rosser, L.
Royall of Blaisdon, B.
Sainsbury of Turville, L.
Sawyer, L.
Scotland of Asthal, B.
Sheldon, L.
Simon, V.
Smith of Leigh, L.
Snape, L.
Soley, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turner of Camden, B.
Uddin, B.
Wall of New Barnet, B.
Warner, L.
Warwick of Undercliffe, B.
Whitaker, B.
Wilkins, B.
Williams of Elvel, L.
Woolmer of Leeds, L.
Wright of Richmond, L.
Young of Norwood Green, L.
25 Oct 2006 : Column 1251
Resolved in the affirmative, and amendment agreed to accordingly.
Motion, as amended, agreed to.
6.09 pm
Lord Warner: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 5.
Moved, That the House do agree with the Commons in their Amendment No. 5.—(Lord Warner.)
Earl Howe moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 5, leave out “agree” and insert “disagree”.
The noble Earl said: My Lords, I spoke to Amendment No. 5A together with AmendmentNo. 4A and made clear that it was grouped. I beg to move.
Moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 5, leave out “agree” and insert “disagree”.—(Earl Howe.)
On Question, amendment agreed to.
Motion, as amended, agreed to.
(a) make provision for the findings of an investigation of a case under the scheme to be recorded in a report, and(b) subject to subsection (2B), make provision for a copy of the report to be provided on request to the individual seeking redress.(a) before an offer is made under the scheme or proceedings under the scheme are terminated, or(b) in such other circumstances as may be specified.”Lord Warner: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 6.
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. 7.
Moved accordingly, and, on Question, Motion agreed to.
[Amendments Nos. 7A and 7B not moved.]
Lord Warner: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 8.
25 Oct 2006 : Column 1252
I shall deal, first, with Commons Amendments Nos. 8 and 9. During debate in another place, the point was rightly made by representatives of the Benches opposite in relation to Clause 8(1)(a) that it is vital for a legal adviser to know to whom he is providing advice. It was suggested that clarification was required to make it clear whether the legal advice was to be provided to the person seeking redress or to the scheme. These amendments make it clear that legal advice without charge may be provided to individuals seeking redress under the scheme.
I turn to Commons Amendment No. 10. Clause 8(1)(b) enables the redress scheme to provide for the services of medical experts. In the statement of policy, published in November 2005, we made it clear that, where evidence from an independent medical expert is necessary, the scheme authority will seek to ascertain the wishes of the patient to reach agreement on an acceptable person. The amendment makes it clear that, where the services of medical experts are provided under the scheme, the medical expert will be an agreed independent expert. The services of that expert will be provided without charge to the individual.
Although the amendment makes specific reference to medical experts,
I reassure the House that we do not consider it reasonable to expect a lay person to instruct a medical expert on a complex issue. It is our firm intention that the individual seeking redress will have access to appropriate legal advice without charge to enable the individual to be fully informed and involved in the joint instruction of the expert. We have existing powers to enable that in Clause 8(1)(a).
Amendments Nos. 8A, 8B and 9A would completely remove the power for the scheme to provide free legal advice to people using the scheme prior to an offer of redress having been made. By rigidly preventing free legal advice being provided to patients seeking redress under the scheme, the scheme will not give patients the assistance that they may require.
The argument for these amendments, put forward in the other place, is that legal advice is not necessary during the fact-finding process. Investigation merely ascertains what happened. I do not agree. For example, there will be circumstances in which it will be appropriate for there to be instruction of medical experts to help to ascertain the facts of a case. As I have said, we do not consider it reasonable to expect lay persons always to instruct medical experts without legal advice. If the redress scheme is to be effective and to gain the confidence of patients, there needs to be appropriate support throughout the process.
However, not only are patients to be prevented from having legal advice to assist with the instruction of medical experts, but Amendment No. 10A would remove the provision inserted in the other place that guaranteed that any medical expert would be jointly instructed.
In Grand Committee, the noble Baroness, Lady Neuberger, seemed to suggest that, if patients as well
25 Oct 2006 : Column 1253
For those reasons, I strongly urge the noble Earl not to pursue Amendments Nos. 8A, 8B, 9A and 10A but to agree to Commons Amendments Nos. 8, 9and 10.
Moved, That the House do agree with the Commons in their Amendment No. 8.—(Lord Warner.)
6.15 pm
Earl Howe moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 8, leave out “agree” and insert “disagree and do propose the following amendment in lieu”—
The noble Earl said: My Lords, I shall speak also to Amendments Nos. 9A and 10A. I should say at the outset that it is not my intention to press these amendments but I think that it is right to take a brief time to debate them. We need to hear from the Government in a little more detail why they have changed their minds about offering free legal advice throughout the redress process.
I do not have, and never have had, a problem about free legal advice being available under the scheme at the point at which the NHS local authority comes forward with an offer. It is at that stage that the aggrieved person wishes to assess the adequacy of the offer and to weigh up the alternatives open to him if he decides not to accept it. To make those decisions, he needs legal advice. Perhaps more importantly, he needs legal advice on the implications of his accepting an offer from the NHSLA, because the acceptance of an offer brings to an end his legal right to pursue civil litigation on that matter. Clause 8(2) covers that situation, and it is important. I have no argument with it.
But here we find that in another place the Government have agreed to the insertion of Clause 8(1), which would apparently allow for a complainant to have access to free legal advice from the very outset of the redress process. That is a significant changeof mind. In Grand Committee, the Minister acknowledged that at the beginning of the process support to the patient would be provided by PALS and ICAS. I had reservations about PALS and ICAS and suggested that we might think about someone more akin to a Mackenzie friend to support the patient, but the one thing that neither the Minister nor I envisaged was the intervention of lawyers.
There are two reasons why I am resistant to the presence of lawyers at this stage of the process. The first is cost. One reason why we all agree that we need to find an alternative to civil litigation is that it is costly to all concerned. Although the Government have not said it in so many words, they surely cannot
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The second reason that I balk at the amendment is that I cannot see why lawyers are necessary at this point of the process. The whole point of the redress scheme is that it affords a quicker, less cumbersome way for a patient to receive an explanation; where appropriate, an apology for treatment that has gone wrong; and, in appropriate cases, an offer of financial compensation. By making an application under the scheme, you lose none of your legal rights; you are simply making an application. The added value of a lawyer at this stage of the process is therefore unclear to me. I have heard the argument that, if you make an application under the scheme and have it rejected on the grounds that it is ineligible, you might need a lawyer to contest that decision. Again, I do not follow that argument. If an application is rejected on grounds of ineligibility, the reasons for the decision will presumably be given, and that is certainly a situation in which ICAS could be brought in to offer the patient appropriate guidance. But a rejection need not be the end of the road: civil litigation may still be open as an alternative. Once you import lawyers into this early stage, you introduce elements appropriate to an adversarial, judicial process. The redress schemeis not a judicial process, nor is it adversarial; it is essentially an offer-making process which is consensual.
I have noticed in my time working on this Bill that there are only two groups of people who believe we need more lawyers for the NHS redress scheme—the lawyers themselves, and those with an interest in promoting the services of lawyers. It is unfortunate that the Government have allowed themselves to be beguiled into modifying the Bill in this way. I put it no stronger than that.
In Amendment No. 10 we also see that the Government have changed their minds on the question of having jointly instructed medical experts. They were always in the Bill, but here we have a new subsection about joint instruction. Again, that concept introduces a dimension that we see operating in the courts. The redress scheme is not the same as a court. It is an executive process. A joint instruction implies that an adversarial tussle is going on. As I have said, I do not view the redress scheme in that way, and I did not think that the Government did either. What will be the status of the medical experts’ evidence? Will it be privileged, or will it be available to the patient at the end of the process? That is an important point.
In our earlier debates the Minister was quite clear that some elements of the NHSLA’s deliberations would have to remain legally privileged. I am not sure whether the Minister has changed his position, but should be interested to know whether that is so. If he has not changed his position, I understand exactly why that should be. If the patient is party to a joint instruction it implies that he or she should be entitled to know what evidence is given as a consequence.
25 Oct 2006 : Column 1255
I should be grateful if the Minister could elucidate a little further how he sees this provision working and exactly how it fits with the concept of the scheme as the Government envisage. I beg to move.
Moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 8, leave out “agree” and insert “disagree and do propose Amendment No. 8B in lieu”.—(Earl Howe.)
Lord Warner: My Lords, let me reassure the noble Earl that it is certainly not our intention to have free legal advice available at every stage of the proceedings. However, we recognise that in some cases legal advice may be necessary at an earlier stage, for example, when the services of jointly instructed medical experts are required. In these cases, it may be inappropriate not to offer appropriate legal advice, but without that provision the scheme is unlikely to gain the confidence of patients.
I notice that the Liberal Democrats are not speaking on this Motion. I was pleased that Dr John Pugh said in the Commons Standing Committee that the Minister had confirmed that medical experts, where instructed, would be jointly instructed. It is imperative for any meaningful joint instruction of a medial expert that the patient has specialist legal representation. It would not be reasonable to expect a lay person to instruct a medical expert on such complex issues.
The noble Baroness, Lady Neuberger, will be pleased to see this new accord between the Government and some of her colleagues on this aspect. We agree with that entirely. We have certainly not changed our minds in the area of reports. They will be made available, and there is no question of using the excuse of privilege in denying access to the views of the expert medical witness. I tried to make that clear earlier, but I may not have done so as well as I might. A claim for privilege to prevent disclosure to another party can be made if a document is a communication between a solicitor and a third party, which arises after litigation is contemplated and the purpose of which is to obtain legal advice. Where documents have a dual purpose the test is whether the dominant purpose of the document was for legal advice. Privilege cannot be claimed for an accident or investigation report unless the sole or dominant purpose for which it was prepared was for submission to a legal adviser for advice.
In this case, the expert advice will be a shared appointment and what they say will be made available to both parties, so I do not think there is any question of doctors claiming privilege on that issue. I hope that that reassures the noble Earl.
Earl Howe: My Lords, that was a helpful reply, and I am grateful to the Minister. My reservations about the interpolation of lawyers still stands, but I note what he said and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Motion agreed to.
25 Oct 2006 : Column 1256
“(4) A scheme that makes provision for the provision of the services of medical experts must provide for such experts to be instructed jointly by the scheme authority and the individual seeking redress under the scheme.”
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 9 and 10.
Moved accordingly, and, on Question, Motion agreed to.
12: Page 6, line 9, leave out “a specified person” and insert “an individual of a specified description”
“(2A) A scheme must require a member of the scheme to prepare and publish an annual report about cases involving the member that are dealt with under the scheme and the lessons to be learnt from them.”
Lord Warner: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 11 to 15.
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. 16.
Moved, That the House do agree with the Commons in their Amendment No. 16.—(Lord Warner.)
Earl Howe moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 16, leave out “agree” and insert “disagree”
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