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Baroness Andrews: It is a dreadful oversight on my part—normally I answer the questions about Wales first. As far as I know, Wales is different because it has a tradition of lay members serving on independent panels. That is how Wales wants to continue, in the spirit of devolution, respecting the strength of local organisers and the independence of the lay members. That is obviously what we want for Wales.

Lord Clement-Jones: The Minister is almost making my argument for me—it is very interesting. She said that review panels were working extremely well, but here she says that the Welsh in their wisdom—and at this point I assume Welsh ancestry—are extremely sensible in staying with the things that they know work. That is why local authorities are keen on the review panels rather than on CSCI.

I do not want to take the matter further tonight, but clearly there are quite a number of questions to be answered between now and Report. I shall read the Minister's comments carefully. Far be it from me to stop the onward march of progress, as described by the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

20 Oct 2003 : Column 1405

Baroness Andrews moved Amendments Nos. 384B and 384C:

    Page 48, line 12, leave out from second "to" to "(and" in line 15 and insert "a Local Commissioner under Part 3 of the Local Government Act 1974 (c. 7) who is a member of the Commission for Local Administration in England for him to consider whether to investigate the complaint or matter under that Part"

    Page 48, line 17, leave out from second "to" to end of line 19 and insert "a Local Commissioner under Part 3 of the Local Government Act 1974 (c. 7) who is a member of the Commission for Local Administration in Wales for him to consider whether to investigate the complaint or matter under that Part"

On Question, amendments agreed to.

[Amendment No. 385 not moved.]

Clause 112, as amended, agreed to.

Clause 113 [Complaints regulations: supplementary]:

[Amendments Nos. 386 to 393 not moved.]

Lord Clement-Jones moved Amendment No. 394:

    Page 48, line 39, at end insert—

"( ) The provision that may be made under subsection (2)(g) includes the provision for a report about a complaint to recommend the making of an ex gratia payment in respect of injuries sustained, loss of earnings or expenses incurred as a consequence of the incident or incidents complained about."

The noble Lord said: The amendment is similar to the one that the noble Baroness, Lady Finlay of Llandaff, would have moved. It will not have escaped the Minister's notice that we on these Benches have tabled a number of different amendments at different stages that are in the nature of probing amendments, to test how limited the provisions are.

The purport of this amendment is to enable compensation or ex gratia payments to be made to an upper value which would be determined by regulations in respect of lesser injuries caused as a result of avoidable mistakes. This would remove the need for people to take legal action on a smaller scale, the costs of which usually exceed any award made. I am sure the Minister is aware of some of the rather horrifying statistics about the cost of some smaller claims.

At present there is an inconsistent approach dependent largely on the personality of the complainant and/or the chief executive of the trust concerned regarding whether ex gratia payments will be considered. Some complainants are told that there is no possibility of this while others are successful in being offered a payment.

An expert group convened by the Scottish Executive recently recommended bringing ex gratia payments formally into the application of the NHS complaints procedure there. In England the Clinical Disputes Forum recommended that compensation should be available through the NHS complaints procedure. I look forward to hearing what the Minister has to say in that respect. I beg to move.

Baroness Andrews: Amendment No. 394 seeks to make financial redress available through the complaints procedure. NHS bodies are already allowed to make ex gratia payments where legal

20 Oct 2003 : Column 1406

liability would otherwise be conceded. NHS bodies will continue to have that flexibility under the reformed NHS complaints procedure.

The amendment as drafted would also apply to social care. There is already provision for payments to be made by local authorities where they consider that their actions amount to maladministration. The issue of compensation for acts of clinical negligence has traditionally been a matter for the courts unless the body concerned accepts liability and reaches a settlement out of court.

The CMO has carried out an extensive review of the options for reforming the way in which the NHS handles clinical negligence claims. The results of the review were published on 30th June in the report, Making Amends. Under the proposals an NHS redress scheme will be established to speed up the process and to offer care and compensation under certain circumstances without the necessity to go to court. This new redress scheme will be closely aligned to the new NHS complaints procedure. For example, it is proposed that making a claim for compensation would no longer be a disqualification from pursuing a complaint—something I am sure we would all welcome. Subject to the outcome of the consultation, we shall need to take account of that in determining how the complaints procedure operates so that it is aligned effectively with the NHS redress scheme. I hope that with that explanation the noble Lord will withdraw the amendment.

Lord Clement-Jones: I thank the noble Baroness for that reply. The interface between clinical negligence cases and the complaints system is an important matter. I do not believe that we yet have a very clear picture established of exactly how that will operate. The noble Baroness says that there is an existing power to make ex gratia payments. When a body such as the Consumers' Association wants clarification on that, it demonstrates that there is a lack of communication or a lack of clarity regarding the powers. When the regulations are made, or when communications are made about the content of the regulations and what the complaints system consists of, it is important to tell potential complainants and the public that trusts have the relevant power. At the moment that is not clear. However, the clarification was useful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Clement-Jones moved Amendment No. 394A:

    Page 48, line 40, leave out subsection (3).

The noble Lord said: This is a straightforward amendment which is designed to discover the current intentions regarding the requirement of payment of a fee to the body hearing complaints under Clause 113.

We on these Benches are concerned that individuals bringing complaints may be required to pay a fee to the body that hears their complaint. Of course, vexatious or dishonest complaints may be a problem for some social services departments, but charging complainants is not necessarily the best way to deal

20 Oct 2003 : Column 1407

with that. It would be important for the Minister to explain why the Government think that a charging power is required in the circumstances. I beg to move.

Baroness Andrews: There was inevitably a cost at the review stage of the existing complaints procedure, which was traditionally borne by the relevant authorities. We recognise that there will be a cost to the commissions in carrying out their functions of independently considering complaints. That is a logical outcome. Therefore, there will need to be a mechanism for covering the costs associated with the work.

I assure Members of the Committee that no scheme of charging will be implemented without a full analysis of the impact, and we would intend to consult on that. For example, we would want any scheme of charges to contribute to the aim of resolving complaints locally, and certainly not to hinder it. Over the coming months, the Department of Health and the shadow commissions will analyse the costs associated with review activity and drawing up proposals for a charging structure that fairly reflects the transfer of the function to the commissions. Those proposals will be subject to full consultation. I should also emphasise that there will be no intention of charging complainants at all. We are talking about charges that are, as it were, costs paid to the commission by the relevant authorities.

We do not want to pre-empt the analysis but will want to see some link between, for example, charging and workload, so that if bodies or authorities that have fewer cases need further action to achieve a resolution, they do not bear a disproportionate burden. We will be looking at the full range of options as to how the provisions can be made to work sensibly.

Lord Clement-Jones: I thank the Minister for that reply. She has made it pretty clear that her interpretation of Clause 113(3) is that the complainant will not be charged. The thrust of the amendment was very much to make sure that the complainant was not charged. Furthermore, she said that there would be analysis of the costs of current review mechanisms and full consultation about how any recovery of those costs from the players involved—presumably local authorities and so on—will be levied. That is a pretty satisfactory reply, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 395 not moved.]

[Amendment No. 396 had been withdrawn from the Marshalled List.]

Clause 113 agreed to.

Clause 114 [Further consideration of representations under the Children Act 1989]:

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