NHS Redress Bill [Lords]

In the statement of policy published in November 2005, we made it clear that, when evidence from an independent medical expert is necessary, it is intended that the scheme authority will seek to ascertain the wishes of the patient to reach agreement on an acceptable person. If patients are to have faith in the system, it is important for them to have confidence in that medical expert and in the expert’s independence. Amendments Nos. 12 and 15 make it clear that, if the scheme provides for the services of medical experts in certain circumstances, and if an individual case falls within those circumstances, the medical expert will be jointly instructed by the scheme authority and the individual seeking redress. Therefore, when the services of medical experts are provided for under the scheme, the medical expert will be an agreed independent expert and the services of that expert will be provided without charge to the individual. For the avoidance of doubt, I repeat that the expert will be independent. As the hon. Member for Southport (Dr. Pugh), who has now joined us, said in Committee, it would not be reasonable to expect a lay person to instruct a medical expert on a complex issue. That is a fair point. I can reassure the hon. Gentleman that we have the existing power in clause 8(1)(a) to enable legal advice to be made available to individuals when it is needed at an earlier stage under the scheme. Legal advice is not restricted to the stage at which an offer is made. We specifically have in mind that legal advice may be appropriate to enable an individual to be fully informed and involved in the joint instruction of an expert. Although amendment No. 15 makes specific reference to medical experts"““instructed jointly by the scheme authority and the individual seeking redress under the scheme””," I can reassure Members that it is our firm intention that the individual seeking redress will have access to appropriate legal advice without charge. However, amendment No. 5 would remove the flexibility to provide free legal advice earlier. We want that flexibility: by rigidly excluding free legal advice, the scheme will not assist patients. The argument for removing clause 8(1)(a) produced in Committee was that legal advice was not necessary during the fact-finding process. Investigation ascertains what happened, and for that no legal advice is necessary. I have to say that I do not agree with that assessment. For example, there will be circumstances in which it will be appropriate for there to be instruction of medical experts to help ascertain the facts of a particular case. Government amendments Nos. 12 and 15 clarify that, where provision is made for the services of medical experts, the medical experts are to be jointly instructed by the scheme authority and the individual seeking redress. I consider it entirely reasonable, where the patient wishes it, for legal advice without charge to be made available in those circumstances. Many patients will be unaware of the issues involved in jointly instructing a medical expert and it would be unreasonable to expect a lay person to do so without advice. If the redress scheme is to be effective and to gain the confidence of patients, there needs to be appropriate support throughout the process. The aim behind the legal advice is to assist individuals seeking redress. I therefore reject amendment No. 5. In Committee, the hon. Member for Eddisbury (Mr. O’Brien) asked for clarification of clause 8(1)(a). He said, rightly, that it is vital for a legal adviser to know who their client is: they must know to whom they are providing advice. It was suggested that clarification was required to make it clear whether the legal advice that may be provided under this clause was to be provided to the person seeking redress or to the scheme. The amendments make it clear that, in relation to clause 8(1)(a), the client is to be the individual seeking redress, rather than, say, the redress scheme. Legal advice may therefore, without doubt, be provided to individuals seeking redress under the scheme. However, I think that it is important to make clear the intention behind clause 8(1)(a). We want to ensure that patients going through the redress scheme can make a genuine, informed choice when presented with options. Clause 8(1)(a) will enable legal advice to be provided to patients, where appropriate, during the scheme—for example, to assist with the joint instruction of medical experts. However, I confirm that the intentions behind this clause are to facilitate fact finding and resolution and, equally importantly, to ensure fairness within the system by better enabling patients to make an informed choice. Clause 8(1) provides the flexibility for the provision of services that may help to reach an agreement to settle. The advice provided to the individual remains the property of the individual and would not be disclosed to the scheme authority. Amendment No. 7 would remove the explicit power in clause 8(3) enabling the scheme to provide that free legal advice has to be supplied by a provider included in a list held by a specified person or body. As drafted, clause 8(3) enables the scheme to provide that free legal advice, whether provided when an offer is made or at an earlier stage, has to be supplied by a provider included in such a list. It is envisaged that the scheme may provide that the list of solicitors firms that will provide legal advice under the NHS redress scheme will be those firms that are authorised by the Legal Services Commission to undertake publicly funded work, and that have agreed to provide advice under the scheme. Any organisation undertaking clinical negligence work under an LSC contract must hold a specialist quality mark in clinical negligence. The LSC awards the quality mark to individual offices. To gain the mark, the firm or office must have a solicitor who is on either the Law Society or the Action against Medical Accidents panel to ensure the work undertaken will be under the supervision of an experienced individual solicitor. We intend that approved providers of legal advice under the redress scheme will be restricted to firms that have achieved the quality mark status in clinical negligence. Clause 8(3) seeks to guarantee that the legal advice offered under the scheme is of a suitable and high standard, and I therefore oppose the amendment. In a publicly funded scheme, it is appropriate that solicitors funded to provide services to patients meet a guaranteed, appropriate standard. It is also appropriate that the advice is provided by a solicitor’s office with the appropriate level of specialist training. I therefore reject amendment No. 7. The Government amendments provide some clarification of issues raised in Committee, especially on the joint appointment of medical experts and the status of legal advice provided to individuals. The amendments strengthen the Bill further and I urge hon. Members to accept them.