NHS Redress Bill [HL]

My Lords, I must first apologise for any confusion that has been caused by a minor drafting error in the list of government amendments that was sent out to your Lordships with my noble friend’s letter of 18 January 2006. As noble Lords may have noticed, the version of Amendment No. 30 that they received differs slightly in one respect from the amendment as published. I regret that Amendment No. 30 as sent out contained a technical error, in that it would have resulted in the inclusion of an extra word, ““of””, in Clause 8(1)(b). The error was noticed and the correct amendment was published, but after the letter with the attached list of amendments had been sent out. I assure your Lordships that there is no difference in policy terms, or effect, with regard to Clause 8(1)(b). The published statement of policy on the NHS redress scheme makes clear our intention that legal advice on any offer under the scheme and the terms of any settlement agreement is to be given without charge. In Committee, noble Lords expressed concern that Clause 8(1) gives the Secretary of State discretion over the circumstances in which legal advice is to be provided without charge under the redress scheme. I gave an undertaking to noble Lords to reconsider the drafting. If the redress scheme is to offer patients a credible alternative to litigation, it has to have the full trust of patients going through the scheme. Amendments Nos. 29, 32 and 34 strengthen the Bill by including a new subsection (1A) in Clause 8 which provides that the scheme must—not may—make such provision as the Secretary of State considers will ensure that all persons making a claim under the scheme will have access to free legal advice in relation to offers and settlement agreements. The Secretary of State will be under an obligation to provide for free legal advice in respect of offers and settlement agreements in all cases. I hope that this will provide reassurance that the scheme will not require the waiver of rights by those harmed during NHS care, unless those people are fully aware of the consequences and consent to that waiver. In Committee, concerns were also raised over when a jointly instructed independent medical expert may be involved in the process. When considering Clause 8(1), I also took the opportunity to review the drafting of Clause 8(1)(b), which enables the provision of services,"““designed to help in reaching an agreement to settle””." We would not wish there to be any restriction on the stage at which such services may be provided, and hence this restriction has been removed by Amendment No 31. Amendment No. 30, by inserting the words,"““in connection with proceedings under the scheme””" enables the scheme to provide for appropriate services at any stage of the scheme. This will enable the scheme to provide for services which are intended to help determine questions of liability, such as, where appropriate, the services of a jointly instructed medical expert to assist with questions about whether a case falls within the scope of the scheme. It will also enable the scheme to provide for services intended to help determine the appropriate level of compensation to be offered, such as, where appropriate, the services of a jointly instructed medical expert to assist with questions about the extent of an injury, and future consequences to the patient as a result of that injury. Amendment No. 31 makes clear that the Secretary of State may make provision for a range of services in connection with proceedings under the scheme, including in particular the commissioning of services from medical experts. We intend to work closely with stakeholders when drafting the secondary legislation to determine the circumstances in which it may be appropriate to commission an independent medical expert. Amendment No. 26 would insert into Clause 6 a power for the scheme to make provision for access to an agreed independent ““medico-legal expert””. I consider this to be inappropriate. First, it is not clear what exactly is meant by the term, although the explanation given by the noble Baroness, Lady Barker, has thrown some light on that. If it is envisaged that patients will have access to a medical expert with legal qualifications, there are clear cost and resource implications. Such expertise may not be appropriate for the type of more straightforward, lower-value cases that will be dealt with under the scheme. Secondly, we have existing powers to provide both expert medical and legal advice. Clause 8 specifically provides for both legal advice and access to other services, including the services of medical experts. It is envisaged that the services of jointly instructed independent medical experts may be engaged to assist in determining questions of eligibility for the scheme and the appropriate level of compensation to be offered. As regards legal advice, it is intended that the achievement of quality mark status will be used as the standard for the legal advice given at the point at which an offer is made under the scheme, and that the system of giving advice would be similar to current practice for litigated cases—that is, the work may be undertaken by or will be supervised by the panel solicitor. It is intended that these measures will ensure that patients have access to an appropriate level of specialised advice. The government amendments to Clause 8(1)(b) provide a broad power to allow for the provision of services throughout the process. That is a satisfactory solution that will allow appropriate services to be used in appropriate cases. In many cases, settlement will be reached without the need for other services. We would expect the patient to be consulted throughout. Importantly, Amendment No. 26 would also require the scheme authority and the patient to be bound by the findings of the independent medico-legal expert. It seems that the amendment seeks to enable this expert to determine liability. This confuses the investigation process and the decision-making process. There will be cases where an independent expert medical opinion is necessary. The scheme makes provision for that. The opinion of the expert will, of course, be highly persuasive. However, he or she is not there to pre-empt the decision of the scheme authority, but to add to the knowledge of how the incident arose. The amendment would take the assessment of eligibility under the scheme out of the hands of the scheme authority, so I think that this amendment raises many questions about who these medico-legal experts—who it is actually envisaged will be determining eligibility—would be. The amendment would seek to incorporate into the redress scheme a form of independent dispute resolution, which would be inappropriate and have huge cost implications. I firmly believe the scheme authority has to be responsible for making decisions about eligibility under the scheme. The scheme authority will make decisions according to the law of tort and after considering appropriate expert evidence, if necessary. The NHSLA, as the proposed scheme authority, is best placed to make these decisions. That is its area of expertise. The redress scheme is intended to be an out-of-court settlement scheme. If an offer is not made under the scheme or is rejected, the patient retains his right to seek redress though the courts. The scheme is not intended to determine rights and bind patients. There is a further safeguard. Clause 14 introduces a complaints mechanism for cases of alleged maladministration. Ultimately, these cases may go to the Health Service Commissioner. Any decision made by the scheme authority on eligibility or quantum which does not take into account the facts, or unreasonably overrides an expert medical opinion, may be expected to fall within the scope of this power. This safeguard is sufficient to ensure that the evidence provided by independent medical experts is appropriately taken into account when decisions are made under the scheme. Amendment No. 33 would provide that legal advice on the offer and settlement under the redress scheme would specifically be specialist medico-legal advice. This amendment provides no flexibility. It suggests that specialist medico-legal advice will be necessary in all cases falling under the redress scheme. I am opposed to this, as I do not believe that it would be cost-effective for independent medico-legal advice, or indeed independent medical expert advice, to be obtained with regard to every case under the scheme—for example, in some cases it will be clear that there is liability without the need for an independent medical expert opinion. This scheme is for cases of lower monetary value. In some cases the patient will simply require legal advice on the offer and settlement agreement. The amendment restricts flexibility and has the potential to lead to additional unnecessary costs. I therefore oppose both Amendments Nos. 26 and 33.