NHS Redress Bill [Lords]

The Minister referred to amendments that were proposed in Committee, but I suggest that he confine himself to those tabled for today’s Report stage in the House. He seems unable to accept that we are trying to push for the principle and concept of independence. He has not refuted my earlier suggestion that he does not believe that the redress scheme should be independent, so there can be no merit in going into detail about how we would secure that independence. We are using the amendments to introduce the principle and concept of independence into the Bill. The Minister has tried to attack our proposal that the redress process should be independent by suggesting that it would be more expensive. The Government have conceded, however, that in both their and our proposals there is a two-stage process; the fact-finding cost is, therefore, fixed, inevitable and unavoidable whoever oversees the investigation. There is no question of duplicating bureaucracies and so no question of additional cost. Indeed, our proposals could actually save money as they would inspire greater confidence in the scheme and thus better avoid costly litigation. In addition, the Minister has contrived the idea that an independent fact-finding process would be adversarial, accusatory or finger-pointing, but that makes no sense at all. There is a basic legal distinction between an adversarial process and an inquisitorial one. An inquisitorial process is concerned with fact-finding, not fault-finding; there is no sense in which such an investigation would reinforce a blame culture in the NHS. Indeed, our proposal for an independent fact-finding process would ensure that the proceedings were not adversarial, as no lawyers would be present and no legal rights would be asserted or defended. The Minister talked about promoting a culture of openness and honesty, in which the NHS takes responsibility for its own mistakes. He implied time and time again that because our proposal would require an independent outsider to go in and consider what went wrong—he referred to that point again earlier today—it argued against a culture of openness in the NHS and would encourage NHS staff to close ranks and clam up. But that is absurd. If the openness the Minister is talking about is all in-house and not exposed to outside scrutiny, it is not openness at all. There is a fundamental contradiction between the Government’s desire to promote openness and the Minister’s reluctance to allow an independent person to oversee the investigation of the facts. In Committee, the Minister tried to ridicule our suggestion for an independent fact-finding process by talking about people ““snooping”” on trusts. He criticised the Opposition for not trusting NHS professionals to carry out an investigation into their own case, but that is a matter neither of snooping nor of trust. What exactly does the Minister believe that the NHS has to fear if his intention is to promote openness and honesty? I fear that the Minister has taken the problem at the heart of medical error—the blame culture and the reluctance to admit mistakes—and institutionalised it. Instead of challenging and confronting the problem, he has built his system around it. His non-independent scheme seeks to insulate the NHS from outside investigation even when such investigation is of a fact-finding rather than a fault-finding nature. He has set his heart on a non-independent scheme and will dredge up as many bad arguments as he can to support it. Saying that lessons should be learned, but only if they are the lessons the trust wants to learn, is not a genuine commitment to learning lessons or to changing the culture of the NHS. In conclusion, I return to my theme: independence is right both in practice and in principle. It complements the culture of openness the Minister is trying to promote. It would not be accusatory because we would separate fact-finding from fault-finding; we would keep the lawyers and the finger-pointing out. It would allow lessons to be learned and would reassure the patient. That is the most important point, because without independence, the investigation of facts, which will eventually give rise to an assessment—not a determination—of liability and a possible offer of compensation, will not have the confidence of patients. In the worst case scenario the redress scheme would not be a meaningful alternative to going to court, and because of the importance of the issue I intend to test the opinion of the House on the amendment.