NHS Redress Bill [HL]

moved Amendment No. 15:"Page 2, line 40, leave out paragraphs (c) and (d)." The noble Earl said: My Lords, in moving Amendment No. 15, I shall speak also to Amendment No. 17. The Minister has told us that the intention for the NHS redress scheme is that it should not compensate people at a lesser level than they would have been compensated if they had pursued their remedies through civil litigation. If the Government really mean that, it is illogical for them to reserve the statutory right to set upper limits of financial compensation. The amount of compensation offered should be assessed on the basis of the actual loss, plus damage sustained, as well as pain and suffering, just as it would be in a case that was litigated. That principle applies not only to the overall amount of compensation but to any individual head of claim. I fully acknowledge that the scheme is intended to address those claims that fall into the lower end of the value range. The Minister, in his letter of 18 January, helpfully explained that it is in cases where the award of damages is relatively low—£20,000 or below—that legal costs are disproportionately high. I would not wish to argue that point in the slightest. The rationale for setting an upper limit is, according to the Government, that it will enable a swift response to be given to the more straightforward and lower value cases. My answer to that is that there is a difference between trying to set an upper ceiling on the size of claims intended to be dealt with by the scheme and the desirability of sticking rigidly to that upper ceiling if, during the course of an investigation, it becomes apparent that the claim is worth more than the amount of the ceiling chosen. If a claim is found to be worth slightly more than £20,000 it would seem ridiculous to miss the opportunity to resolve that claim for that rather bureaucratic reason. If that were to happen, there is only one realistic option for the patient, which is to incur the expense and the additional stress of going to court. That is in no one’s interests, and it argues for some flexibility to be built into the nominal upper limit. In his letter, the Minister expressed the view that there would not be any advantage to the NHSLA knowingly offering less compensation than would be received through the courts because, following legal advice, the offer would be rejected and renegotiated. If the offer were at or near £20,000, and the patient’s legal advice was that it ought to be worth more, the patient might nevertheless be persuaded to take a pragmatic view and accept the offer, because not to do so would incur untold additional anxiety and delay. The existence of a strictly enforced upper ceiling on claims points up very graphically the trade-off at play in the scheme between ease of operation and natural justice. I would like to persuade the Minister—although I know that I will not—that in this sense as in a number of others natural justice is a regrettable casualty of this scheme and that we should therefore do all we can to minimise its loss. One way to do that, in my respectful view, would be to abandon the idea of a strict upper limit on total settlements and on individual heads of claim. At the margin, fixed financial ceilings will distort decision making and deny patients the full extent of the redress that they would otherwise have received. I beg to move.