NHS Redress Bill [HL]

My Lords, clearly I would not entirely accept that this is a repackaging. I think that it is a very exciting and novel initiative—but we can discuss that some other time. The redress scheme is intended to facilitate the resolution of cases in a swift manner, ensuring that redress is provided to the patient as quickly as possible. The aim is to resolve cases quicker than the current average of about 18 months for litigated cases. Creating an appeals mechanism would extend the time taken to resolve cases and unnecessarily increase both the costs and the bureaucracy of the scheme. It is difficult to estimate the precise cost of an appeals mechanism for decisions under the scheme because we do not know how many claimants might appeal. However, to illustrate the potential cost, departmental economists have modelled a hypothetical example which assesses the extra cost of an appeals mechanism in two scenarios: first, where the number of extra claims under the scheme is low; and secondly, where the scheme attracts a high number of extra claims. The modelling is based on an assumption that 10 per cent of unsuccessful claimants appeal and, of those, 1 per cent have their appeals upheld. Where the number of extra claims is low, departmental modelling shows that this would affect approximately 320 claimants at a cost of around £1.24 million per year, some £840,000 of which would go to lawyers in legal fees. Where the number of extra claimants is high, approximately 930 claimants would be affected, costing around £3.27 million per year, of which £2.42 million would go to lawyers in legal fees. These projected costs are based on the assumption that an existing organisation or body would handle the appeals. Were a new independent body to be set up to administer an appeals mechanism, that would carry a considerable additional cost implication and would contradict the conclusions of the department’s recent arm’s-length body review. I believe that an appeals mechanism is not necessary as the scheme already has a number of safeguards that adequately protect the interests of patients. As noble Lords are aware, it is intended that offers under the scheme will be equivalent to what would have been received through the courts. There would be no advantage in the scheme authority knowingly offering less compensation than would be received through the courts because, following legal advice, the offer would be rejected and may subsequently be reconsidered. That would be counter-productive. It would slow down the process and unnecessarily add to the administrative costs of the scheme. Perhaps more importantly, it would defeat the purpose of the scheme because patients would lose confidence in the scheme and would not use it. One purpose behind the scheme is to enable redress to be provided, where appropriate, without recourse to civil proceedings. However, if an offer is not made, or is rejected, the applicant’s legal right to pursue a claim will remain in being, unaffected by the scheme, and can be pursued through the courts in the ordinary way. We are satisfied that the scheme does not determine any civil rights for the purposes of Article 6 of the European Convention on Human Rights. Convention rights do not therefore require decisions under the redress scheme to be appealable. Furthermore, where a patient or other person whose case is considered under the scheme is unhappy and believes that there has been maladministration, he or she will be able to complain under the redress scheme complaints procedure. Secondary legislation will set out the detail of how this complaints procedure will work. It is envisaged that most complaints will be resolved informally at local level. If a patient wishes to make a formal complaint about maladministration under the scheme, it is intended that he or she will be able to make a complaint to the scheme authority. The Health Service Commissioner for England will be able to investigate complaints of maladministration from patients, including maladministration by scheme members of their functions under the scheme, or in connection with the settlement agreement entered into under the scheme, or in relation to the redress scheme’s own complaints procedure. Patients making a complaint about matters other than maladministration of the scheme will be able to use the NHS complaints procedure. We intend the redress scheme to be a speedy and effective means by which to provide appropriate remedy to patients harmed by mistakes during their healthcare. It has in place a number of appropriate and effective safeguards to protect patients. An additional appeals mechanism would create a time delay in taking cases through the process and would unnecessarily increase both costs and bureaucracy within the scheme.