NHS Redress Bill [HL]

My Lords, in this set of amendments we come to what is probably the major remaining area of contention between us in this Bill. I continue to have some sympathy, believe it or not, with some of the arguments put forward from the Benches opposite. I am particularly glad to learn of the Liberal Democrats’ wish to join us in our conversion to avoiding unnecessary bureaucracy in the NHS; we are making progress. I would like to set out some of our objections to this particular set of amendments, although, if noble Lords will bear with me, I may have some comfort to offer towards the end of my remarks. First, there is the question of whether the scheme should be limited, at the beginning, to a fact-finding investigation. The noble Earl, Lord Howe, has plugged away at this with great persistence from the beginning. We consider it an integral and important part of the scheme that the investigation of an incident is combined, where appropriate, with the resolution of the case through an offer of redress. We do not really accept the kind of division that the noble Earl has in mind. Under the Bill as it stands, the scheme presents an alternative to civil proceedings for those claims that fall within it. The NHS redress scheme is intended to provide a mechanism for swift resolution of low monetary value claims in tort, without the need to go to court. Limiting the scheme, in the way proposed, to a fact-finding investigation at the outset, with some degree of separation from the rest of the scheme, would prevent the scheme from offering a real alternative to court action. It would create a partial scheme, rather than a complete scheme. This is not what patients want, as it would not allow for the provision of true redress in all cases. Of course redress involves investigation and explanation—we do not disagree with that—but in some cases it also necessarily involves financial compensation. As we have envisaged the scheme, it delivers clear benefits for patients, providing a real alternative to litigation in cases of low monetary value that fall within it. It addresses some of the problems of delay and risk around legal costs, which can arise in taking a case through the courts. That is where we start from—a different position from that of the noble Earl, Lord Howe, although I respect the arguments that he has put forward. I turn now, more particularly, to Amendment No. 42. This appears to envisage the appointment of a single patient redress investigator to conduct an investigation in a case under the scheme. There are a number of reasons why this would not be appropriate. A single investigator for each case would have to perform multiple and, it could be said, conflicting roles. A person suitably skilled in investigation techniques does not necessarily possess the skills to determine how to prevent errors from occurring in the future. This approach could prevent the effective use of a mix of skills within a scheme member’s organisation. It might, for example, be more appropriate for certain aspects of the investigation, such as determining the clinical facts, to be handled by clinicians, with some aspects, such as patient liaison, to be handled by PALS staff and other aspects to be determined by specialists, such as jointly instructed medical experts. I give those as examples of the kinds of skills that may be necessary to get to the bottom of a particular incident. Scheme members, through a combination of staff working, for example, in the areas of complaints, PALS and risk management, may already possess a group of staff with combined experience in all those areas. Importantly, these staff are an integral part of the organisation and are therefore better able to link these processes together and to contribute to the learning process for that organisation, which we all agree, I think, is important for the benefit of the NHS. To be cost-effective, it is important that the investigation of cases under the scheme makes full use of the skills and expertise already in place on the ground. Departmental economists have estimated that independent investigation of all cases may cost as much as an extra £41 million per year. I am very happy to supply noble Lords with the basis of that calculation, because I would expect a degree of scepticism about my producing that figure from the top of my head. It would be preferable, and more cost- effective, for an appointed person to take an overview of the investigation, utilising expertise and resources already available within the organisation. With this more flexible approach, the investigator could co-ordinate different elements of the investigation undertaken by a range of people, rather than the scheme member having to employ one person, and a separate person, with all the necessary skills. We are also opposed to Amendment No. 42 because we do not believe that it would be appropriate for the Healthcare Commission to maintain and publish a list of approved investigators and to have responsibility for overseeing the carrying out of their functions. We have consulted the Healthcare Commission on this potential role. It does not believe that the validation and accreditation of NHS investigators falls within its remit. It is already proposed that consideration of the effectiveness of the operation of the NHS redress scheme, including investigations carried out under the scheme, will be included as part of the Healthcare Commission’s annual review of the provision of healthcare by and for NHS bodies. I do not believe that a separate review of the carrying out of the functions of a redress scheme investigator would be appropriate, as it would lead to duplication of effort by a body which already has a wide range of functions and a heavy workload. Crucially, Amendment No. 42 raises significant unanswered questions about how the proposal would work in practice. It is not clear from the amendment by whom the patient redress investigator would be appointed, by whom he would be employed, or to whom he would be accountable. Is it envisaged, for example, that the scheme member will employ the investigator and pay his salary, but that the employee will be answerable to the Healthcare Commission? The wording could be interpreted in that way. Usual employment practice is for an employee to be accountable to his employer. Or is the intention that the investigators are independent of the scheme member? Are the investigators to be appointed by the Secretary of State? I suspect that that is not in the noble Earl’s mind. As I have said, if the investigators are intended to be independent of the scheme member, there are clear cost implications. I repeat: the cost of independent investigation of all cases under the scheme has been modelled by Department of Health economists, who estimate it to be up to an extra £41 million per year. We further believe that Amendment No. 42 is inappropriate because it duplicates powers already established in the Bill. The amendment sets out that secondary legislation may make provision with regard to how the investigation should be carried out. But we already have the power in Clause 6(2)(a) to enable the scheme to make provision about the investigation of cases under the scheme. It is intended that the scheme will provide as to how investigations are to be carried out in secondary legislation, following consultation with stakeholders. That is the bad news. I shall now turn to more positives responses to what I think is the underlying thinking behind this group of amendments. We sympathise with the idea that there should be a specified person overseeing—I use the word ““overseeing”” deliberately—the investigation of each case under the scheme. That person should have responsibility for co-ordinating an investigation report to be submitted to the scheme authority, which may inform the decision on eligibility for the scheme. I am therefore willing to take this away and table an amendment at Third Reading to enable the Secretary of State to require scheme members to charge a specified person with responsibility for overseeing the investigation of cases under the scheme. The amendment would provide that secondary legislation may set out the prescribed qualifications and/or experience that this specified person would need. This person would be given the task of overseeing the carrying out of investigations under the scheme, ensuring that appropriate information is collected and provided to the scheme authority, in order to inform the decision on both liability and quantum. The person would be employed by the scheme member and the responsibilities might be conferred on an already existing member of staff. The person would have to act reasonably when carrying out their responsibilities, or a complaint of maladministration could be made under the redress scheme complaints procedure. Should complaints of maladministration be referred to the Health Service Commissioner, there would be an independent overview by the commissioner. The Health Service Commissioner could investigate complaints about maladministration in connection with the investigation of cases under the scheme, and report on her findings. To promote learning from mistakes and to ensure that effective links between cases under the scheme and improvements to clinical governance procedures are made, I believe that it would be preferable to take this amendment forward, building on the requirements set out in clause 10(2)(h). Clause 10(2)(h) already allows the scheme to impose a duty on scheme members, requiring them to charge a specified person with responsibility for overseeing the carrying out of specified functions under the Act and advising the member about lessons to be learnt from cases that are dealt with under the scheme. I suggest that this person will be better placed to undertake the function of overseeing investigations under the scheme, as it is envisaged that the person will be part of the management team of the scheme member. By combining the functions, this person will be better able to make links between cases under the scheme, learning from mistakes and ensuring that action is taken to prevent recurrence. They will understand the scheme member’s procedures and be better placed to determine the appropriate action to be taken and how to monitor it. It is important that they should have the status and influence to ensure that action is taken in the future, which is one of the key aspects of the scheme and of what patients who have suffered adverse incidents want for the future. Furthermore, if scheme members are required to charge a specified person with responsibility for overseeing the carrying out of investigations, the role of that person will be subject to an independent overview by the Health Service Commissioner should a complaint of maladministration be referred to her. I believe that this will provide a sufficient check on the performance of the role and provide a good deal of reassurance to noble Lords, given the concerns that they have expressed. I hope that willingness to take forward an amendment on those lines will be convincing to the Benches opposite.