NHS Redress Bill [HL]

My Lords, the noble Baroness’s amendment has its heart in the right place, because she has identified what many will see as a drawback in the Government’s model for delivering redress. It is a ““take it or leave it”” process. If you do not like the offer you get, what can you do? The Government’s answer is that if you want to take things further you can go to court. Many people will not be able to afford to do that, or, for other perfectly valid reasons, will not want to—hence the idea of an appeal mechanism. For all that, I cannot support this amendment. The whole point of the Government’s redress scheme is that it is not a judicial process at all. It amounts to being an in-house consideration of the NHS’s own liability. That consideration will result sometimes in an offer of financial compensation. Offers are to be made without prejudice, with only partial provision for disclosure of factual information. The rules of legal professional privilege will operate. These are not the features of a process open to appeal; you cannot appeal against an offer or a deliberative process. The amendment refers to a decision as though there were something judicial about what the NHSLA will be tasked with doing. With due respect to the noble Baroness and the BMA, an offer is not the same thing as a decision. It is something you either accept or reject. Therefore, it is inappropriate to seek an appeal mechanism in this particular context. There is perhaps one other point to add—something that perhaps should not go unsaid before these Report proceedings are concluded. The thought behind the noble Baroness’s amendment is entirely understandable because, right the way through our debates on the Bill, the Government have very consciously wished to convey the impression that what they are offering is something novel. It is not. The work that the NHSLA will be tasked with doing is work that it has been doing for years. The NHSLA is already in the business of making offers of financial compensation to aggrieved patients and settling claims out of court. A very high proportion of claims made against the NHS are settled in this way. It is a familiar and well tried process. So we should not allow ourselves to be seduced by the idea that the Bill provides a genuinely novel alternative to litigation. Stripped down to its essentials, it is a repackaging exercise: the same system with a few knobs on. That is another reason why the absence of an appeal mechanism should not astonish us unduly.