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Baroness Barker: My Lords, I thank the Minister for the clarity he has added, which is now on the record. I did not find all his answers compelling and I do not believe that there is yet sufficient clarity about the power of individuals to trigger this scheme.

I take entirely his optimistic view that scheme members, principally trusts, will be only too ready and willing actively to trigger things on behalf of people whom they feel come within it. What if they do not? That is the still-unanswered question. What is the power of an individual and how will he know that he has the power to trigger this scheme? I did not find the Minister's answer that there may be other circumstances, or indeed that there may be circumstances when it was not appropriate to commence this scheme, compelling for not setting out the simple fact that this scheme is available for individuals to trigger. When this comes to work in practice, just like in complaints procedures now, there has to be an understanding of where it fits within the range of different ways of addressing the question of redress.

I welcome what light the Minister has shed on the matter, but suggest that there is more yet to come. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Barker moved Amendment No. 19:

"( ) There shall be a duty upon scheme members to inform a patient when a mistake has been made."

The noble Baroness said: My Lords, this amendment is on a similar thing, and the Minister touched on the duty of scheme members to inform a patient when a mistake has been made. I note what he said about the provisions that already exist within this clause on the notification of commencement proceedings under the scheme. That is slightly different from what is being asked for in the amendment—that there be a duty on scheme members to inform a patient when a mistake has been made.

Here we return to the main part of Making Amends which has not made it into this Bill, namely the duty of candour, which the Chief Medical Officer said should form any part of a redress scheme. We talked about that at considerable length in Committee. We on these Benches have not yet been convinced by the Government on it. The proposals put forward in the clause do not necessarily add up to what we are asking for. Quite simply, an individual should be informed when a mistake has been made, whether or not the redress scheme is activated. If the Minister goes by the answers that he gave to the previous group of amendments, there can be all sorts of reasons why somebody would not be told—for example, the adverse incident that had happened to them was not
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considered to be eligible within the terms of the redress scheme. They would not be informed of the mistake. For those reasons, I beg to move.

Lord Warner: My Lords, the noble Baroness will not be surprised to discover that we do not support this amendment. We think it unnecessary in the light of the existing powers that we have taken in Clauses 4 and 5. I set out many of the reasons in previous areas, and will not detain the House much longer on this issue. I am happy to set out the arguments again for her in writing, in the hope that it will reassure her.

We discussed the duty of candour in Committee, and the noble Baroness has drawn our attention to it again. Just to remind the House, both the GMC and the Nursing and Midwifery Council are independent, self-regulatory bodies and, after consultation with key stakeholders, it was not considered appropriate for the Government to require either body strictly to enforce an additional duty of candour. We did not lightly cast aside the proposals in Making Amends. We consulted very carefully on that issue and what I have just described is the outcome of those consultations.

Baroness Barker: My Lords, I thank the Minister for that response. However, having listened carefully to him, I think his response still points up a somewhat odd omission from the whole scheme. He talked to us at considerable length about new openness within the NHS—a willingness to listen and to learn from mistakes. However, the duty of candour has not been taken on—I noted what the Minister said. Not to include a simple duty to inform a patient that mistakes have been made seems to me a fundamental missing link in the proposals. I will take the matter away and consider it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 20 and 21 not moved.]

Clause 6 [Proceedings under scheme]:

Earl Howe moved Amendment No. 22:

The noble Earl said: My Lords, I shall speak also to the other amendments in this group. The aim of the Bill is to provide us with a model for a system that will enable aggrieved patients to seek redress—in all senses of that word—if they feel they have received negligent treatment in an NHS hospital. If there is one glaring fault in that model, to my mind, it is this. Let us imagine that a patient has been treated in hospital and something has gone wrong with the treatment. He makes an application under the scheme. The body tasked with investigating the facts of what went wrong is the hospital itself. The scheme authority, tasked with overseeing the process of investigation, assessing the degree of fault and setting the quantum of compensation, is the NHS Litigation Authority—a body very experienced in that area of work, but one which, when all is said and done, is part of the NHS.
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The NHS is therefore being asked to act as judge, jury and assessor of compensation for its own misdeeds. Is that a system that is inherently fair to the patient? I do not think so. Is it a system in which patients are likely to have confidence? I suggest not. From the patient's point of view, the redress scheme may offer a cheap and speedy means of settlement, but it is hardly objective or independent. We must address that failing.

Putting myself into the shoes of an aggrieved patient, I would want one thing above all—some assurance that the initial process of fact-finding by the hospital was not a purely in-house exercise. There needs to be some independent oversight of the investigation by someone both sufficiently knowledgeable and with the necessary degree of standing in the eyes of the public.

In Grand Committee, it was suggested that the Healthcare Commission, not the NHSLA, should act as the scheme authority and, in so doing, provide the required element of independence. The Minister told us that there were two things wrong with that idea. One was that the Healthcare Commission has a conflict of interests, bearing in mind its current role as the point of reference for second-tier complaints in the NHS. The other was that it would damage local accountability. In his subsequent letter, for which I thank him, he added that it would also prove an inexpensive way forward. I am not sure that I fully accept the first two reasons but, in fairness to the Minister, it would be wrong not to take on board the third one.

Since Grand Committee, I have given this issue a lot of thought. It seems to me that there is a solution which would meet the requirements that I have set out without falling foul of the Minister's objections in relation to the Healthcare Commission—a panel of patient redress investigators approved, but not appointed, by the Healthcare Commission, whose job would be to oversee the fact-finding part of the redress process.

5 pm

It is perfectly possible to imagine one individual serving several hospital trusts in this capacity. There would be no need for there to be one per trust. The trusts concerned would be responsible for investigating the facts of what went wrong, but the person actually signing off the report would be the redress investigator—a person who, albeit paid by the trust, would nevertheless not be seen as part of either the medical staff or the trust management. The Healthcare Commission's prior approval, or kite marking, of that person would confer a special independent status on him or her.

There is a model for what I propose, and it is a familiar one—that of the coroner. The coroner is a Crown servant whose job is to investigate the facts of a death whose circumstances are not straightforward. If the death takes place in a hospital, the hospital will collate the factual details of what went wrong, but it is up to the coroner to arrive at a verdict of how, when
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and where the deceased came by his death. He does not and must not pronounce on any issue relating to fault or legal liability. He cannot grant remedies or reward damages.

By means of a process that is inquisitorial, the coroner inquires into the facts of what happened, hears the evidence, summarises that evidence, and finally arrives at a verdict which comprises a finding of fact about the circumstances of the death. Where he believes that action should be taken to prevent the recurrence of similar fatalities, he may report accordingly.

There is a key feature of the coroner's inquest, which I have just emphasised—the separation of fact-finding from fault-finding. In Grand Committee, I proposed that the Bill omit any reference whatever to fault-finding and stick solely to the key process of fact-finding. I still believe that that would be the best model to follow. It is not necessary or appropriate for the Bill to do more. However, I am realistic enough to know that I am not going to achieve that outcome so, failing that, the key must be to ensure that the fact-finding part of the redress scheme is not muddied by the separate process of determining fault and assessing a quantum of compensation—the role that the Government want the NHSLA to undertake.

That is why I propose in the amendments that the NHSLA should have no jurisdiction over the fact-finding part of the redress scheme. It should stand back. The jurisdiction should instead lie with the patient redress investigator. At the end of the factual investigation, the patient would receive from the hospital and the investigator an explanation of what went wrong and, where appropriate, an apology. After that, so long as the patient wishes it, but not of course otherwise, the NHSLA would take over as the scheme authority. It would determine liability, if any, and make an offer of financial compensation to the patient. The patient could then take that offer or leave it as he chose.

I genuinely believe that this variant of the government scheme will give us a better result. The main thing it will achieve is the necessary element of independence and thus consumer confidence. But there are, I suggest, other benefits. It avoids what in Grand Committee I rather rudely called the functional incoherence of the Government scheme. The model provided by the coroner's court tells us that you need an impartial investigation of the facts before you even begin to decide whether there is a legal case to answer. Therefore, you should not have, overseeing a fact-finding investigation where full disclosure should apply, a body whose job is also to perform the in-house role of assessing fault and offering compensation under the rules of legal privilege. You should not have overseeing fact-finding a body that would suffer from the clearest possible conflict of interests as both a part of the internal machinery of the NHS and an authority supposedly tasked with being fair and impartial to patients.
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One of the main aims of the NHSLA at present is to defend the NHS against unwarranted claims and to minimise costs that otherwise could be devoted to patient care. It does that with considerable success. It is, I am afraid, beyond me how we are supposed to believe that it can continue to perform that function in a manner that is at the same time independent. I believe that the alternative model that I have outlined overcomes all those difficulties. I beg to move.

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