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Baroness Barker moved Amendment No. 49:


"APPEALS
The Secretary of State may by regulations make provision for an appeals mechanism in relation to decisions made under the scheme."

The noble Baroness said: My Lords, this is a repeat of an amendment discussed in Committee. It was submitted by the BMA, which wishes us to pursue it. Notwithstanding some of the points made throughout our discussion about how the redress scheme would work, particularly in relation to complaints procedures, the BMA wishes to make the point that there is no appeals mechanism for a person who disagrees with decisions reached under the scheme, regardless of whether they are entitled to redress. The BMA remains concerned that advice will be available only in certain circumstances. Therefore, in the BMA's view, and given the technical nature of some of the decisions that will be reached, there is still a need for an appeals procedure within the redress scheme. I beg to move.

Earl Howe: My Lords, the noble Baroness's amendment has its heart in the right place, because she has identified what many will see as a drawback in the Government's model for delivering redress. It is a "take it or leave it" process. If you do not like the offer you get, what can you do? The Government's answer is that if you want to take things further you can go to court. Many people will not be able to afford to do that, or, for other perfectly valid reasons, will not want to—hence the idea of an appeal mechanism.
 
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For all that, I cannot support this amendment. The whole point of the Government's redress scheme is that it is not a judicial process at all. It amounts to being an in-house consideration of the NHS's own liability. That consideration will result sometimes in an offer of financial compensation. Offers are to be made without prejudice, with only partial provision for disclosure of factual information. The rules of legal professional privilege will operate. These are not the features of a process open to appeal; you cannot appeal against an offer or a deliberative process. The amendment refers to a decision as though there were something judicial about what the NHSLA will be tasked with doing. With due respect to the noble Baroness and the BMA, an offer is not the same thing as a decision. It is something you either accept or reject. Therefore, it is inappropriate to seek an appeal mechanism in this particular context.

There is perhaps one other point to add—something that perhaps should not go unsaid before these Report proceedings are concluded. The thought behind the noble Baroness's amendment is entirely understandable because, right the way through our debates on the Bill, the Government have very consciously wished to convey the impression that what they are offering is something novel. It is not. The NHSLA will be tasked with doing work that it has been doing for years. The NHSLA is already in the business of making offers of financial compensation to aggrieved patients and settling claims out of court. A very high proportion of claims made against the NHS are settled in this way. It is a familiar and well tried process. So we should not allow ourselves to be seduced by the idea that the Bill provides a genuinely novel alternative to litigation. Stripped down to its essentials, it is a repackaging exercise: the same system with a few knobs on. That is another reason why the absence of an appeal mechanism should not astonish us unduly.

Baroness Royall of Blaisdon: My Lords, clearly I would not entirely accept that this is a repackaging. I think that it is a very exciting and novel initiative—but we can discuss that some other time.

The redress scheme is intended to facilitate the resolution of cases in a swift manner, ensuring that redress is provided to the patient as quickly as possible. The aim is to resolve cases quicker than the current average of about 18 months for litigated cases. Creating an appeals mechanism would extend the time taken to resolve cases and unnecessarily increase both the costs and the bureaucracy of the scheme. It is difficult to estimate the precise cost of an appeals mechanism for decisions under the scheme because we do not know how many claimants might appeal. However, to illustrate the potential cost, departmental economists have modelled a hypothetical example which assesses the extra cost of an appeals mechanism in two scenarios: first, where the number of extra claims under the scheme is low; and secondly, where the scheme attracts a high number of extra claims.
 
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The modelling is based on an assumption that 10 per cent of unsuccessful claimants appeal and, of those, 1 per cent have their appeals upheld. Where the number of extra claims is low, departmental modelling shows that this would affect approximately 320 claimants at a cost of around £1.24 million per year, some £840,000 of which would go to lawyers in legal fees. Where the number of extra claimants is high, approximately 930 claimants would be affected, costing around £3.27 million per year, of which £2.42 million would go to lawyers in legal fees. These projected costs are based on the assumption that an existing organisation or body would handle the appeals. Were a new independent body to be set up to administer an appeals mechanism, that would carry a considerable additional cost implication and would contradict the conclusions of the department's recent arm's-length body review. I believe that an appeals mechanism is not necessary as the scheme already has a number of safeguards that adequately protect the interests of patients.

As noble Lords are aware, it is intended that offers under the scheme will be equivalent to what would have been received through the courts. There would be no advantage in the scheme authority knowingly offering less compensation than would be received through the courts because, following legal advice, the offer would be rejected and may subsequently be reconsidered. That would be counter-productive. It would slow down the process and unnecessarily add to the administrative costs of the scheme. Perhaps more importantly, it would defeat the purpose of the scheme because patients would lose confidence in the scheme and would not use it.

One purpose behind the scheme is to enable redress to be provided, where appropriate, without recourse to civil proceedings. However, if an offer is not made, or is rejected, the applicant's legal right to pursue a claim will remain in being, unaffected by the scheme, and can be pursued through the courts in the ordinary way. We are satisfied that the scheme does not determine any civil rights for the purposes of Article 6 of the European Convention on Human Rights. Convention rights do not therefore require decisions under the redress scheme to be appealable.

Furthermore, where a patient or other person whose case is considered under the scheme is unhappy and believes that there has been maladministration, he or she will be able to complain under the redress scheme complaints procedure. Secondary legislation will set out the detail of how this complaints procedure will work. It is envisaged that most complaints will be resolved informally at local level. If a patient wishes to make a formal complaint about maladministration under the scheme, it is intended that he or she will be able to make a complaint to the scheme authority.

The Health Service Commissioner for England will be able to investigate complaints of maladministration from patients, including maladministration by scheme members of their functions under the scheme, or in connection with the settlement agreement entered into under the scheme, or in relation to the redress scheme's
 
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own complaints procedure. Patients making a complaint about matters other than maladministration of the scheme will be able to use the NHS complaints procedure.

We intend the redress scheme to be a speedy and effective means by which to provide appropriate remedy to patients harmed by mistakes during their healthcare. It has in place a number of appropriate and effective safeguards to protect patients. An additional appeals mechanism would create a time delay in taking cases through the process and would unnecessarily increase both costs and bureaucracy within the scheme.

Baroness Barker: My Lords, I thank the Minister for her lengthy reply to a small amendment. I listened to all her arguments and I am least convinced by the one on cost. I take what she said about the complaints procedure, although some of the amendments agreed to in the previous group may have made clearer how someone who is dissatisfied with the proceedings of the redress scheme should proceed. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.15 pm

Clause 17 [Framework power]:

Earl Howe moved Amendment No. 50:

Leave out Clause 17.


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