NHS Redress Bill [Lords]

I start by welcoming my hon. Friend the Member for Leigh (Andy Burnham) to his relatively new position in the Department of Health. As I was coming here, it occurred to me that when he became the Minister with responsibility for identity cards, ID cards were the screaming adolescent of British politics. A relatively short time later, he leaves them sleeping gently like a baby, if not ticking like a time bomb. We can only hope that he works the same magic on the NHS. I declare an interest as a trustee of the patients’, charity Action against Medical Accidents, which is generally known as AvMA. For more than 20 years, it has held the mantle for patient safety and justice for people who have been affected by medical accidents in this country. It is fair to say that, without AvMA’s influence, patient safety would not be as high on the agenda as it is today. We might well not be holding the debate or have such a Bill without it. I hope that Ministers agree that AvMA has a constructive, well informed and coherent input into policy and that there is much to be learned from the patient’s perspective. I know that other hon. Members will have found the AvMA briefing on the Bill as valuable as I have. AvMa and other patient groups have long argued that there should be a speedier, less stressful way of providing redress in the widest sense for people who have been caused avoidable harm. Legal action remains a vital safety net and will still be necessary in more complex and serious cases, but it is not popular with injured patients and should be a last resort. AvMa has campaigned for years for dovetailing the complaints procedure with a process of awarding compensation, together with full explanations, apologies and assurances that patient safety lessons will be implemented to make things safer for others. The Bill intends to deliver most of that. The measure is broadly good and hon. Members of all parties want to support it and help the Government make it work. So far, so good. We have consensus, but there is an opportunity for the Bill to be a universally good news measure. We must ask ourselves why, when there is such consensus on the Bill’s stated aims, we do not have the positive response for which we might have hoped. Why do not AvMA and a broad coalition of patient groups welcome the Bill with unreserved jubilation? Although the aims are widely welcome, there is widespread concern about its implications as drafted. The joint statement that many hon. Members will have seen is from groups including the Patients Association, Which?, the National Consumer Council, Help the Aged and Mind. Their core points are: there should be an independent means of deciding on merits; advice and assistance should be provided during the scheme; and medical and legal expertise should be available during the process, not simply at the end. There also need to be more robust measures in place to learn lessons and take action to improve patient safety. Those requests do not seem unreasonable given how coherently they sit with the Bill’s stated aims and the Government’s intentions, which no one doubts are sincere. Many of us would like the reforms to go further, as the hon. Member for South Cambridgeshire (Mr. Lansley) said, in line with the chief medical officer’s recommendations in ““Making Amends””, in which he called for a fairer test for eligibility than the Bolam test. That test, with tort at its centre, is not the best on which to base the Bill from our current position. An avoidability test, which would widen the definition of liability, similar to what has been done in, for example, Denmark, is more in tune with a culture that is less focused on apportioning individual blame and more about identifying the root causes of errors, which are usually systemic. That test might have provided us not only with the answer to whether redress should be provided but what risk management measures should be put in place—all through one investigation. That can be done. Perhaps the time is not yet right for such a radical reform, notwithstanding its merits and compatibility with what the Government say that they are trying to do, but perhaps we could revert to it once the initial scheme has bedded down a little. We are told that we will need new legislation for primary care anyway and we are repeatedly told to look forward to endless streams of secondary legislation. I would welcome the Minister’s comments on whether some sort of avoidability test could be the subject of future legislation. The issue of independence in determining eligibility for redress has been a recurrent theme in our debate today and in all the previous debates on the Bill in the other place and elsewhere. Many stakeholders would have preferred the merits of negligence cases to be investigated by a completely independent organisation. The Government have explained that the intention is to change the culture of the NHS, so that it learns to recognise its errors, investigate them fully and make fair offers of redress, without the need for the rigour of an independent process. That is a laudable aim, but the way to change the culture is to change the rules. Realistically, one cannot expect the culture to change and the rules to follow. It has to be the other way around. There are real difficulties with how long change would take and how practical it would be. The problem is that at present we are stuck with the Bolam test, which is designed for the tort approach and assumes specialist legal representation for the claimant and the case being examined with the full rigour and independence of the courts. It would also be used in a scheme in which the NHS, the would-be defendant, sat in judgment on itself, and no specialist legal representation would be available to empower the patient to make their case effectively on what is a very technical legal test. As Ministers have said, the Bill does provide for some legal advice and some"““assistance for individuals seeking redress under the scheme””." That advice, however, is available only at the end of the process and would not enable claimants to influence the outcome of the decision on the offer of redress. That is a fundamental point. The assistance to those seeking redress is described in the guidance as"““PALS or ICAS type arrangements””." We all have tremendous respect for the people doing worthwhile work in both those services, but neither is appropriate for empowering a patient to influence the outcome of an investigation based on the highly technical, legalistic and tort-based Bolam test. Patient advisory liaison services are not independent, but part of the customer care arrangements in NHS trusts. The Independent Complaints Advocacy Service is designed to help patients navigate the NHS complaints procedure. Neither has the legal and medical expertise available to empower patients to influence such a legalistic test, nor would it be appropriate for them to do so without radically changing the purpose for which they are designed. This is not a bad Bill. It is definitely moving in the right direction. It is at least possible that the scheme could be run so that it would go a long way to address the main concerns that have been articulated by interested groups such as AvMA. The Government amendments in the Lords allow for the possibility of legal advice being available during, rather than just at the end of, the process. As I said in an intervention, the previous Minister said in her letter to the Constitutional Affairs Committee that stakeholders will be consulted, during consideration of the secondary legislation, about the circumstances in which legal advice could be provided at earlier stages of the scheme. The question is whether such fundamental provisions, which could radically alter the nature of the redress scheme—especially the way in which it is perceived by stakeholders and its capacity to enjoy public confidence—should be left to the vagaries of future consultation on secondary legislation. I suggest not. We are always being told that our requests will be met by the regulations, but Ministers have already conceded that the Bill should contain such powers. I therefore strongly urge Ministers to consider strengthening the provisions in Committee to make more legal representation available during the process. It seems to me, and to AvMA, that the most practical way forward would be to draw on the experience of the resolve pilot in England, which has been favourably evaluated, and the speedy resolution pilot in Wales. In those pilots, cases in which liability had not already been admitted and an offer of settlement made—disputed cases, in other words—had their merits determined on the basis of independent medical experts’ reports. The experts had been commissioned jointly by the NHS and a specialist solicitor acting for the patient. There is already evidence that that approach works, and it is much cheaper than litigation. The solicitors are paid a relatively modest success fee only if the case receives a positive report on eligibility from independent experts, and the mechanism would be needed only if the NHS had not already recognised its own negligence and sought to settle the case. The more successful we become in changing the culture of the NHS and improving its capacity to investigate itself, the less we will need such a safety net. Will the Minister at least confirm that such an approach is consistent with what he has in mind? It is hard to see how justice will be done in the majority of cases, in the short term at least, without such a safety net. It is a fundamental fact that the vast majority of clinical negligence cases that are settled in favour of the claimant have already been investigated and stubbornly defended by the NHS. It is as simple as that. Almost all of them have been resolutely, and wrongly, defended by an NHS that was not equipped to investigate itself. That culture needs to change, but I say that we should change the rules and let the culture follow. It will take years and a considerable amount of investment to turn the culture around, and to go ahead with an NHS redress scheme that does not provide for an independent means of determining eligibility in contested cases would mean that many deserving cases would not get the redress that they deserve and that the Government and all of us want. It will also lead to a lack of confidence. It is notable that the Government said of the Legal Services Bill, which is before the House at the moment, that the office for legal complaints"““will not delegate the handling of consumer complaints to Approved Regulators as set out in the White Paper. There must be no appearance of professionals judging their own””." That is right; it is obvious that they should not handle those complaints. Even if they were extremely successful at it—and there is clear evidence that they are not—the appearance would be bound to alienate the vast majority of lay people, who would simply not believe that they were getting justice.