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"( ) about the assessment of liability in tort under the scheme;"

On Question, amendment agreed to.

Baroness Barker moved Amendment No. 24:

"( ) requiring proceedings under the scheme to be conducted within a fixed period of time"
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The noble Baroness said: My Lords, speaking as a Liberal Democrat I consider the Division result a landslide. We are clearly on our way and the Minister must be duly terrified.

In Grand Committee we discussed at considerable length what was meant by the scheme being a speedy and efficient means of enabling somebody who has had an adverse incident with the NHS to achieve redress. The Minister has set out in his full and helpful letters more of the Government's thinking on the matter. However, the amendment has been tabled because one matter is still outstanding. Unless there are specified time limits under the scheme there could be a tendency for matters to drift. From our discussions in Grand Committee it is clear that none of us wishes that to happen. We wish this to be a speedy and yet satisfactory process for patients and for the trusts themselves. In Grand Committee the Minister commented that that could be achieved by acknowledging the importance of each stage of the process under the scheme being governed by time limits. He explained that provision was made for that in Clause 4(2)(c). He added that, should it become apparent after consultation with stakeholders that an overall time limit for the conclusion of proceedings under the scheme would be appropriate, the general power set out in Clause 6(1) would be sufficient to allow the Government to introduce such a time limit.

However, Clause 4(2)(c) as drafted does not provide for time limits for proceedings to be concluded although it specifies that the scheme may make provision for time limits to be commenced. That implies that a specific period of time may be stipulated for people who wish to avail themselves of the scheme to start proceedings, and that failure to do so within that time may mean that they lose the right to do so. However, the Bill does not make clear that there should be a requirement for proceedings under the scheme to be not only commenced within a given time but also concluded within a time limit. If the scheme is to operate in such a way, there is a good case for making that clear in the Bill. I beg to move.

5.45 pm

Lord Warner: My Lords, Amendment No. 24 provides that the scheme may make provision to require proceedings,

We have made clear that the redress scheme is intended to help to resolve cases swiftly and to ensure that redress is provided to the patient as quickly as possible. We agree on that.

Experience from the NHS complaints procedure tells us that setting a rigid time limit for responding to complainants may have perverse incentives. In some cases, a case that might be more quickly resolved is not resolved until the time limit, while other cases are poorly dealt with within the time limit when a little more time may have provided a more satisfactory outcome. There may be cases that, for good reason, take longer to deal with; and it is more important to get
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the decision right than to meet a target. In many of those cases, the patient will understand if he is involved in the discussions and kept apprised of the situation.

The major problem with introducing an overall time limit for a procedure that may, in some cases, be quite complex is that it is in danger of becoming meaningless. For simple cases, it will be unchallenging; while for complex cases it runs the risk that cases will not be properly dealt with simply to meet an overall time limit. To be effective, any time limit should have regard to the time taken by the scheme member and scheme authority to resolve the case. This amendment will not measure that effectively. Under our proposals, it is intended that patients will be given a reasonable amount of time in which to consider an offer of financial compensation. That will enable them to obtain legal advice on the offer and settlement. But an overall time limit will not take into account the time taken by the scheme member and the scheme authority as against the time taken by the patient. In other words, a case that, overall, appears to have been dealt with more quickly than a similar case may, in practice, have taken longer when one considers only the involvement of the scheme member and/or the scheme authority. We would certainly not want patients to be put under any undue pressure simply to enable proceedings to be completed within a fixed period of time.

However, I accept that an important aim of the scheme is to facilitate the resolution of cases in a swift manner, ensuring that redress is provided to the patient as quickly as possible. Therefore, it is more appropriate for there to be time limits for some of the stages within the overall process. Those limits should be set only after full consultation with stakeholders, to ensure that practical, appropriate and effective limits are set throughout. There may even be a case for providing an exemption for cases meeting certain criteria relating, for example, to complexity. Those will be set out in the scheme. I appreciate that the amendment seeks to ensure that cases under the scheme are dealt with quickly. However, a single, overall time limit for proceedings under the scheme may unnecessarily constrain the system in a manner that is not to the advantage of the patient.

Baroness Barker: My Lords, I thank the Minister for that reply. The amendment does not bear on one party rather than the other. Having a time limit would be a good stimulus for both sides to resolve the matter quickly and not to indulge in game playing and delaying. The Healthcare Commission will evaluate that when it reviews the operation of individual NHS organisations. If that is found to be the case, there is a case for making it open from the start. However, I have listened to what the Minister said. I hope that when the guidance on good practice on the scheme comes out the Government will, for example, look at the average length of time taken by the NHS Litigation Authority to resolve cases at present and come up with some guidelines both for individuals and for trusts—that would be advantageous. For the moment, I beg leave to withdraw the amendment.
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Amendment, by leave, withdrawn.

Baroness Barker moved Amendment No. 25:

( ) the disclosure of all information and evidence, including all medical evidence, obtained during the investigation into any incident or relied upon in making a decision as to whether or not an offer of settlement is to be made (or both),"

The noble Baroness said: My Lords, we return again to the issue of candour, which remains a matter of concern. This proposal comes from the Law Society and is an attempt to ensure that all information and evidence obtained during an investigation should be forthcoming to all the parties. That is key to the scheme working effectively. It is also important, given the decision that your Lordships' House has just taken, for impartiality of investigation that there is a requirement for openness in the disclosure of evidence and information, which will enable redress to be forthcoming quickly. I beg to move.

Earl Howe: My Lords, a serious anomaly thrown up by the Government's redress scheme is the confusion that it causes on disclosure and privileged legal information. The NHSLA will be tasked not only with the gathering of factual case evidence about what was done, by whom and why—under the Government's proposals, at any rate—but also with the logically quite distinct exercise of considering whether the facts of the case give rise to a legal liability in tort and, if so, whether an offer of financial compensation is appropriate. It would be wrong to call the second half of the process judicial or even quasi-judicial. It is an in-house consideration of the NHS's liability resulting, sometimes, in an offer. As such it is barely susceptible to judicial review. Ordinarily, the substance of in-house deliberations of this kind would be treated as privileged information, as would the legal advice underpinning it. Normally any offer of settlement under the redress scheme would be without prejudice.

When an offer of redress is accepted, clearly the matter is dealt with and the file is closed. However, when it is rejected, what will be the position of the NHSLA? Will it try to claim privilege under the redress procedures in respect of any subsequent litigation? If offers under the scheme are to be made without prejudice, that suggests that the NHSLA would want to preserve its position on liability. Indeed, there is little point in the offer being without prejudice if the proceedings leading up to it are not privileged.

Yet, at the same time, we are told by the Government that they wish the redress process to be as open as possible. In his letter of 20 December, the Minister said that the Government are committed to freedom of information and frank disclosure, but almost in the same breath, he adds that there will also be an element of non-disclosure in relation to documents covered by legal professional privilege. That is a very confused message to give out.

The Government have got themselves into this confusion by conflating, unnecessarily in my view, the two logically distinct halves of the redress process: fact
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finding, where open disclosure should operate under the rules of natural justice, and fault finding, where the rules of legal professional privilege set in. Earlier I referred to the functional incoherence of the Government's scheme and this is one rather obvious aspect of it. It leads to irrational results. If you separate functions in a logical way, that removes conflicts of interest.

I support this amendment, not least because it forces the Government's hand. If they want the redress process to be open and to mean what they say about freedom of information, this amendment is the way to achieve it.

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