NHS Redress Bill [Lords]

In Committee, the point was well made, particularly by the hon. Member for Romsey (Sandra Gidley) and my hon. Friend the Member for Stoke-on-Trent, Central (Mark Fisher), that patients harmed during their NHS care often say that they do not want it to happen to anyone else. I have never been at odds with that statement. Those are normally the first words out of the mouths of people presenting at our constituency surgeries when they seek to pursue a case and confront the NHS with the harm that they have suffered through its failings. For many individuals, redress and closure—to use that terrible word—may often mean being clear in the knowledge that measures have been or will be taken to ensure the mistake does not happen again. I was asked by the hon. Lady and others to consider an amendment to the Bill to provide for a report on action to be taken to prevent similar cases arising in the future, and for that report to be made available where appropriate. I am pleased to say that having considered this matter carefully I have tabled such an amendment. The amendment, to clause 3(2), provides that redress will now ordinarily include the giving of a report on the action that has been or will be taken at local level to prevent similar cases arising. As was accepted in Committee, there will be occasions where mistakes can simply be ascribed to genuine human error—mistakes where no procedural changes need to be made and where a report of this type will not be appropriate. As I said in Committee, we must be careful about placing extra administrative burdens on the NHS. I believe that the hon. Lady accepts that caveat. In these specific types of circumstance, the scheme may provide that a report will not be necessary, although ordinarily such a report will now be provided. Therefore, not only will scheme members publish an annual report about lessons to be learned from cases under the scheme, under clause 10, but the redress offered to individuals under the scheme will now ordinarily include a report on the specific action to be taken to prevent a similar mistake happening again in that patient’s individual case. I think that that was what the hon. Lady was urging me to do, and she was right to do so. On amendments Nos. 4, 10 and 11, I listened carefully to what was said in Committee, particularly by my hon. Friend the Member for Birmingham, Erdington (Mr. Simon), about the reasons why investigation reports should be provided to individuals if requested. He focused on the importance of providing the full facts, not only to those to whom offers are made under the scheme, but to those to whom an offer is not made and whose case is terminated. He spoke about the sense of grievance that people may experience if they are not eligible for redress and he explained why they should, if they so wished, be provided with the facts and the outcome of the investigation, so that they could understand why they were not entitled to the redress that they sought. Amendments Nos. 10 and 11 require the scheme to provide for the findings of an investigation to be recorded in a report, and for the report to be made available to the individual seeking redress on request. As I stressed in Committee, clause 3(2) already ensures that an explanation will ordinarily be provided under the redress scheme. It will be a full explanation, and we envisage that in a number of cases—particularly the more straightforward—the patient will be satisfied with that explanation. We want to reduce unnecessary bureaucracy for scheme members, and we do not wish to impose on them the extra burden of providing the investigation report in every case. In some—perhaps many—cases, an explanation may be adequate, but our amendments ensure that, if it is requested, the investigation report will ordinarily be provided. The amendments enable the scheme to provide that the report need not be made available before an offer is made, or before proceedings are terminated. That, too, is intended to reduce the administrative burden on scheme members. Providing investigation reports at an earlier stage may result in increased correspondence and delay. It is envisaged that when the offer of redress is made, a copy of the investigation report will be sent to the individual, if they request it. That will give the individual a complete set of documentation that they can consider with their legal adviser when the offer under the scheme is assessed. The amendments enable the scheme to specify other circumstances in which reports need not be provided. That covers rare cases, such as those in which the person seeking redress is not the patient, so it is considered appropriate to withhold certain confidential health information. Including in the Bill an explicit requirement that investigation reports generally be provided to individuals is in the spirit of openness that the scheme seeks to engender. That will reinforce our messages about more open apologies and explanations. In Committee, the Bill was criticised because it was said that the investigative process could not be transparent if its findings were not open. I hope that the amendments satisfy hon. Members that we fully intend the investigative process to be transparent. There is no question but that investigation reports will generally be available, if requested. That will be in addition to the explanation provided to the individual complainant. I would like to make it clear that the investigation report will not be kept back on the ground that it is privileged, nor will it be claimed that investigation reports are ““without prejudice”” and inadmissible in any subsequent legal action. That matter was raised in Committee by the hon. Members for Billericay (Mr. Baron) and for Eddisbury (Mr. O'Brien), and I am happy to give an assurance on that point. The power in proposed new subsection (2B) is an enabling power. Under the scheme, no report need be provided until an offer is made, or until proceedings under the scheme are terminated. As I have said, the intention is to reduce the administrative burden on scheme members, but in clause 15 we have a specific power to make different provision for different cases, and to exercise powers ““subject to exceptions”” or"““in relation to any particular case or class of case.””" The power to restrict the provision of investigation reports may therefore be exercised only in relation to particular cases or a class of cases. Our intention is that the power will not be exercised in cases in which it is appropriate for a joint medical expert to be instructed. However, it does not prevent investigation reports from being provided until the final stage. My hon. Friend the Member for Birmingham, Erdington was concerned about that problem, but I can assure him that the Government amendments do not require reports to be provided at the end of the process in all cases. There is flexibility in the Bill so that investigation reports can be provided to individuals at an earlier stage if that is deemed necessary. He was right to press me on the issue, because if people are to make an informed judgment on the instruction of a joint medical expert they need to see the contents of the investigation. The Government amendment further weakens the need for independent investigations—a subject that we will debate in the next group of amendments. However, there is no question but that investigations will be open. The actions of scheme members in conducting the investigation, the scope of the investigation and the processes followed will be open and subject to scrutiny. We have introduced a general duty to promote resolution by accepting new clause 1, which deals with the desirability of settling, and the amendment clarifies the need for openness and transparency. Taken together, the provisions strengthen further the NHS redress scheme. Turning now to Opposition amendment No. 4, hon. Members will realise from my earlier comments that I agree that investigation reports should generally be made available to individuals. I am afraid to tell the hon. Member for Billericay that I reject his proposal for a number of reasons, although I accept that it attempts to achieve a similar goal to our provisions. First, Government amendments Nos. 10 and 11 go further than his amendment, which enables the scheme to provide for reports to be made available but does not require it to do so. If the power is not exercised, the scheme could not make provision for the publication of investigation reports. The Government amendments require the scheme to provide for reports generally to be made available when requested. Secondly, the amendment refers to"““the publication of a report””," but I do not believe that publication is appropriate. Investigation reports deal with an individual’s health care and contain personal, often confidential, information. It is right that they should be made available to the individual whose health care has resulted in harm, but it is not right that they should be more widely available. Even if anonymised, some scheme members will have so few redress cases, or so few cases of the kind described, that the individual patient could be identified in a published report.