NHS Redress Bill [HL]

My Lords, I do not for one moment believe that the Government’s position is incoherent. It is a fact of life which people have to face that in legal and other processes there is already a lot of legislation, custom and practice about disclosure. One cannot simply overturn that position in relation to particular issues in this Bill. We have tried to have regard to the practicalities and realities of that alternative legislation and practice in framing this legislation. The noble Earl, Lord Howe, referred to my letter of 20 December, in which I stated that it is intended that, with regard to any case handled under the scheme, relevant material will be disclosed to the patient or other individuals eligible for redress. For example, it is intended that medical records, adverse incident reports, complaint files, where relevant, and Health and Safety Executive investigation reports, where relevant, would be disclosed. This mirrors the situation of a case being handled by the NHSLA under the clinical negligence scheme for trusts. The existing statutory rights of access to information under the Data Protection Act will apply. It is intended that the scheme may provide for the investigation of cases under the scheme to produce an investigation report, and we intend to consider further, in consultation with stakeholders, whether the investigation report should be made available to the patient or individual eligible for redress, subject to any restrictions surrounding data protection. We cannot wish away the existence of other legislation on the statute book. However, this amendment is drafted very widely indeed, referring to,"““all information . . . obtained during the investigation . . . or relied upon””." It is, however, appropriate that there may be an element of non-disclosure, as documents which are covered by legal professional privilege—for example, confidential communications for the purpose of obtaining legal advice and assistance—will be privileged, in accordance with the general rules of legal professional privilege; again, this is a practical state of existing practice and law. These general rules should apply. There may be situations where it is not appropriate for personal information to be disclosed. For example, where an application has been made to the scheme by a dependant following the death of a relative, it may not be appropriate for the medical records of the patient to be disclosed to the surviving relative where the deceased patient wished for their medical records to remain private and confidential. These are reasonable expectations, which have to be respected. However, these issues are best dealt with by applying the existing law on disclosure. We therefore oppose the amendment.