NHS Redress Bill [Lords]

That may be true, and I accept the hon. Gentleman’s point. I find it astonishing that the Secretary of State did not talk about legal aid, because the problems of legal aid go to the heart of the difficulties that we are experiencing with the clinical negligence system. The Government’s apparent desire to avoid that fact is evidence that they have not thought through the policy implications of dealing with the legal aid problems. Let us run through some of those problems. Legal aid does not ensure access to justice for deserving cases, as most people are not eligible. Instead, it provides access to lawyers for an eligible minority. Legal aid lacks independence. Funding is granted on the advice of the applicant’s lawyer, so there is a clear conflict of interest that may encourage over-optimistic advice, to put it kindly, or speculative litigation, putting it less kindly. Legal aid lacks fairness. Successful defendants cannot recover legal costs. Legal aid puts the claimant in a no-lose position and the health service defendant in a no-win position. It may be cheaper to settle a claim regardless of merit, to avoid irrecoverable legal costs—a practice known as legal aid blackmail. The Secretary of State referred to the legal costs that the NHS has incurred, and of course the structure of legal aid is one of the reasons why the legal costs that the NHS has had to meet have been so great. Legal aid lacks accountability. Funding decisions involving public money are privileged and confidential, and are not subject to public scrutiny. As a Member of Parliament, I have sought to question some of the decisions made by the Legal Services Commission about the people to whom they grant legal aid. Frankly, that is an impenetrable question. The fact that it has met and made a decision is regarded by the LSC as justification enough. Most clinical negligence cases are legally aided, but the great majority of households do not qualify for legal aid. Is it the case that clinical negligence harms only people eligible for legal aid? Of course not. It is not a matter of cases not being brought because they lack merit; they are not brought because there is no legal aid available. The record of legally aided claims involving health care is dismal, as I said. In some instances, that has promoted unsubstantiated health claims and scares based on junk science, threatening the health of the nation’s children. Too often, lawyers are the only beneficiaries of publicly funded legal action. Scarce resources are diverted from patient care to lawyers’ fees, all in the name of justice and all paid for by the taxpayer. The solution to the problem of clinical negligence litigation lies in the realm of funding. Legal aid has brought relief to many people, but it is a popular misconception to equate legal aid with access to justice. Access to justice is not best delivered by the legal aid system. There is a better way to do that; before the election, we said that we needed wider proposals to reform clinical negligence—I am sure we will return to that. The reforms in the Bill are consistent with a wider reform, but no one should believe that they are sufficient in themselves. However, it is best to confine ourselves to the scope of the Bill, rather than try to debate the wider question of the way in which legal aid can be reformed. As the Secretary of State mentioned, the origins of the Bill lie in the chief medical officer’s report, ““Making Amends””, which considered the problems highlighted by ““Options for Change””. The underlying policy of ““Making Amends”” was to move away from a tort-based culture. It stated that:"““tort sits so uncomfortably in an NHS with an ethos of equity””." Its recommendations"““move the role of tort from its current central position to the outer perimeter of the NHS.””" However, the report paid scant regard to the problems of legal aid. The Bill recognises and exposes the failure of ““Making Amends””. It is not based on ““Making Amends””. Instead of moving away from tort, the Bill makes tort its centrepiece, in clear contradiction of ““Making Amends””. That report by Liam Donaldson contained 19 recommendations, of which 18 are not addressed by the Bill. Indeed, the well-intentioned but ill-considered recommendation No. 2, proposing a no-fault compensation scheme for brain-damaged babies, was dropped last summer. The Bill gives effect only to recommendation No. 1, not in the way that ““Making Amends”” proposed, but at least by introducing an NHS redress scheme to provide investigation when things go wrong, remedial treatment, rehabilitation and care where needed, explanations and apologies, and financial compensation in certain circumstances. It applies where there is a qualifying liability in tort—that is, a breach of duty causing injury. This is the condition precedent to qualify for the scheme. It is much narrower in scope than a complaint, which may or may not involve negligence. The Bill is ambitious in its scope. It proposes a package of remedies—a one-stop shop providing different remedies. It represents enabling legislation. The detail will be set out in secondary legislation. It provides a skeleton framework of duties and powers to give effect to the underlying policies, and it is the Government’s underlying policy that gives rise to our concerns. The Government’s proposal seems to be mainly concerned with compensation, as it can apply only where there is a qualifying liability in tort. It appears to be conceived as an in-house settlement-making process, rather than as an independent judicial investigative process. Liability is to be assessed by the National Health Service Litigation Authority, rather than determined by any independent tribunal. Compensation is to be offered by the NHSLA, rather than awarded by any independent person. We should remember that the NHSLA is the body that carries the liability on behalf of scheme members, so it has a vested interest in the matter. Any offers arising from the process are to be made on a ““without prejudice”” basis. Although facts or some degree of fault may be disclosed, if the claimant—the patient—does not take up an offer and reach a settlement, that disclosure cannot be used as the basis for a claim, and no admission of liability can be derived from it. Offers are to be accepted or rejected on a ““take it or leave it”” basis. The situation in clinical negligence is bad enough, but the Bill as originally drafted would have made matters worse. The response of claimants to such a process may well be to treat it as partial, and as no more than a preliminary stage to legal action. Far from being an alternative to litigation, it would, by virtue of its invitation to claim, have generated more litigation, not less. The concept of a one-stop shop is superficially attractive, but on closer inspection the Bill was found to be fraught with problems. It sought to combine conflicting functions and it confused fact finding with fault finding, an inquisitorial process with an adversarial process, and open proceedings with ““without prejudice”” proceedings. We have consulted widely in formulating our alternative approach, which is now reflected in the Bill. The Government’s willingness to tackle the problems of clinical negligence was broadly welcomed. However, there was a general recognition that the original Bill was fundamentally flawed, and represented a wasted opportunity. In summary, there was a single constant theme: the need for open, independent, fact-finding investigation. The Bill as amended in their lordships’ House reflects that simple point. The amendments have given the Bill functional coherence, and place the interests and priorities of patients at its core. Our first key concern has been the need for independent investigation. Independence is a basic principle of natural justice, enshrined in the rule against bias—that no man may be a judge in his own cause. The investigation should not be concerned with issues of legal liability. We should separate fact finding from fault finding. There is ample judicial authority for that dichotomy. The Secretary of State spoke about two separate processes, and logically they are two processes. Fact finding and fault finding will be distinct aspects of any investigation. We want the fact finding to be conducted by NHS redress investigators as an inquisitorial process. The investigation may provide the basis for an explanation, apology, lessons to be learned and, where appropriate, an assessment of civil liability and an offer to be made. The Government’s proposals would have had the NHS investigating itself as judge and jury. The Constitutional Affairs Committee report stated:"““We are concerned that if the organisation which is responsible for defending trusts and hospitals is also charged with running the scheme, there may be a perception (whatever the reality) of a conflict of interest.””" We need the reality and the perception to be understood. Justice must not only be done but must be seen to be done. Secondly, we need an open procedure. Findings of fact should be robust and capable of use apart from the redress scheme, which means that the proceedings leading up to the offer should be either without prejudice or privileged. An investigative process can hardly be described as transparent if its findings are not open, which is a consequence of the Government’s proposal to mix up fact finding with fault finding. The Government are treating facts disclosed during an investigation as if those facts were part of a fault-finding process, in which case their disclosure would be an admission of liability, whereas disclosing the facts is an essential part of the process of winning the patient’s confidence in the redress scheme. If an offer is rejected, the findings of the investigation cannot be used for any compensation claim outside the redress scheme under the Government’s proposals. Our proposal would change that state of affairs, and rightly so. I will not detain the House by explaining our proposal in detail, but it follows the precedent set out in the Inquiries Act 2005. Thirdly, we want the scheme to reflect patients’ priorities. When something goes wrong, patients want an explanation and an assurance that lessons have been learned, and an open and independent fact-finding investigation reflects that priority. Compensation does not necessarily rank highly in patients’ expectation of the role of a redress scheme, but the Government scheme is geared to compensation and does not allow for the possibility that establishing facts and learning lessons is sufficient in itself. When compensation is required, we want it to be fair. Our proposal provides a range of options: patients can accept an offer; they can negotiate or mediate a settlement; they can enter a Resolve-style scheme; and, as must always be the case, the courts are available as a last resort. Different cases may require different procedures, and choice and flexibility should be available for patients. The fact-finding investigation that we propose would provide patients with an understanding of the basis of any claim, and a Mackenzie friend would be available to provide support and guidance. As I have said, the health service has always had the power to settle claims without resort to litigation, and it has done so on innumerable occasions in the past. Early settlement by defendants in suitable cases represents good practice and reduces costs—it is what the health service should be doing anyway. To characterise the Government’s proposed redress scheme as providing an ““alternative to litigation”” is misleading and something of a gimmick. The same is true of the offer of treatment by the NHS as a consequence of the redress scheme. Remedial treatment which is clinically necessary is an entitlement of patients, and it should not depend on the outcome of any redress scheme. The Secretary of State has said that the introduction of an independent fact-finding scheme would cost up to £41 million. Frankly, we cannot see how the Government have arrived at that figure. The investigation of cases represents a fixed cost, whether it is conducted under the system currently in the Bill or under the Government’s original proposal. We do not envisage a separate bureaucracy undertaking the investigations, which should be overseen, directed and conducted by an independent person under the auspices of the Healthcare Commission. On 28 March 2006, the former Minister of State sought to explain how the figure of £41 million was derived. She said that £41 million was the upper cost estimate and that the lower limit is £14.5 million. She also said that the funds would be for investigating clinical negligence, but that is wrong, because our proposals cover an investigation of the facts, not fault. The cost is not additional, but it is an inevitable cost, because there has to be an investigation whether by the NHS Litigation Authority or by independent investigators. The Government’s estimate of the number of cases involved is between 2,200 and 19,000—a tenfold range. Again, the Government’s number crunching is fanciful.