NHS Redress Bill [HL]

moved Amendment No. 22:"Page 3, line 33, at end insert ““(such investigation to be confined to investigation of the facts of cases and not to consider issues of liability in tort)””" 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. 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. 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 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. 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.