NHS Redress Bill [Lords]

I agree. Independence should be at the Bill’s core. We attempted to do that with the amendments that were carried in another place. We shall now thrash out the arguments in Committee about how best to ensure that independence remains a feature of the Bill. The bottom line is that we agree with the Bill’s overall objectives, which are to create a scheme for efficient and speedy redress for NHS patients who have suffered harm through negligence while receiving treatment. We all agree that reform is desperately needed. A typical claim can take several years. The process is too long and costly and largely fuelled by legal aid. In short, it is a mess and does not reflect patient priorities. As we have heard from hon. Members of all parties, the aggrieved patient often wants an explanation, an apology when due, and the reassurance that those who committed the clinical error acknowledge their wrong and that lessons are learned for the benefit of other patients. However, that does not often happen. The system is widely viewed as unfair. Most clinical negligence cases are funded by legal aid, yet most people are not eligible for legal aid. Many of the vast majority of those who cannot access legal aid are put off from pursuing a negligence claim because of the cost and complexity involved, regardless of whether the grievance is legitimate. In its original form, the Bill was fundamentally flawed as it did not provide what is needed—an open, independent fact-finding investigation that reflects the interests and priorities of patients. That is why we combined forces with the Liberal Democrats and Cross Benchers in the other place to force amendments on the Government that ensure the independence of investigations. Otherwise, the Government’s proposals would have had the NHS investigating itself as judge and jury in its own cause—a modern form of Star Chamber—which would represent a clear conflict of interest, with the NHS Litigation Authority being asked to take responsibility for running the entire scheme, from hearing the facts to determining liability and awarding compensation. Paying a fixed fee for a lawyer to adjudicate at the end of the process would not guarantee that the process was independent. We do not know what the fixed fee would be or what sort of in-depth analysis would be conducted. The lawyer may be asked to adjudicate on facts that, for whatever reason, had not been fairly construed. The Bill, as amended, now provides for a robust, independent investigation, limited to fact finding. We must remember that investigating the facts must logically precede any consideration of fault. We suggest that the investigation should be conducted by independent NHS redress investigators as an inquisitorial process. The coroner’s inquest provides a model. The investigation we envisage would also comply with the spirit of the Inquiries Act 2005, which provides that inquiries may be wide ranging but limited to fact finding, and not consider legal liability. However, that should not prevent fault from being inferred from the determination of fact. In other words, what we are suggesting is already in practice every day. The investigation process we envisage may provide the basis of the explanation, any apology, recommendations and assessment of civil liability. Under our proposals, the investigation of the facts would be open and with prejudice. That means that the findings of fact would be robust and could have evidential value outside the redress scheme. By separating fact finding from fault finding, the findings of fact by independent investigators would be open. Thereafter, patients would have available to them a range of options for settling disputes. In addition, the NHS Litigation Authority could offer compensation on the basis of its privileged assessment of its liability. Compensation under the amended redress scheme would be as in the original Bill. However, our proposal provides patients with a range of options at the end of the fact-finding stage should they wish to seek compensation. They may accept an offer under the proposed redress scheme, they may seek to negotiate a settlement or they may wish to enter into a resolve-type scheme. The courts would be available as a last resort. Different cases may require different approaches and procedures. Choice and flexibility should be available. The fact-finding investigation we propose may also provide the basis of an assessment of liability for any proposed claim. We propose that a Mackenzie-type friend should be available to provide support and guidance for claimants. The original Bill did not reflect patient priorities. Research has shown that when something goes wrong, patients often want an explanation and an apology, and an assurance that lessons have been learned. Compensation does not necessarily rank high on their list. The open, independent, fact-finding investigation that we propose reflects those priorities. Patient safety is promoted by ensuring that lessons learned are not lost. The Government’s focus on compensation does not reflect patient priorities and may subvert the purpose of the investigation. It means also that the importance of the explanation and any lessons risk being relegated. The original Bill would have provided a demand-led, open-ended, cost-free and risk-free scheme for claiming compensation. That would have proved unnecessarily costly and wasteful of resources better directed to patient care. In addition, the regulatory impact assessment states:"““The vast majority of opportunistic claims will be easily rejected””." However, the Government will struggle to provide evidence for that. We know that the Government are concerned about that, as evidenced by their talk last year of introducing conditional fee arrangements as a way of ensuring that only claims with merit proceed. That idea was shelved. The claim that our scheme would increase costs to £41 million is spurious. The Government do not recognise that the infrastructure has to be in place anyway, and we are attempting to simplify the scheme by restricting it to a fact-finding, independent investigation. Our proposals put patients, not the health service, at the centre of the redress scheme. By confining the investigation of a case to fact finding by an independent process, and separating fault finding, we would largely avoid the problems of the original Bill. Patients’ interests would be safeguarded by independence, so they would be more likely to have confidence in the system. Our proposals would allow patients access to a fairer and perhaps better result. No scheme would be perfect, but our amendments to the Bill are a substantial improvement. Our proposals would be more likely to lead to a fair outcome, weed out spurious claims and meet patients’ expectations. My final plea to the Government is: please leave the Bill alone.