NHS Redress Bill [Lords]

The purpose of our amendments is to restrict the role of lawyers, except where legal rights are affected—that is, at the offer stage. The Minister has accepted that the policy underlying the Bill is to provide a genuine alternative to litigation. Under the redress scheme, offers may be made on the basis of the NHSLA’s internal assessment—not its determination—of liability. Legal rights are not determined but remain intact, as the person concerned can resort to litigation at any time. Accordingly, it is difficult to see why lawyers need to be involved before an offer is made or a settlement is considered, when legal rights may be waived as part of a compromise agreement. The Secretary of State agreed with that sentiment on Second Reading. She said:"““I am quite certain that lawyers will argue…that much more legal advice should be made available all the way through the process. If we do that, however, we might as well stick with the existing situation in which people seek legal advice and go to court.””—[Official Report, 5 June 2006; Vol. 447, c. 33.]" However, the Government amendments show that the Government have changed their position. They now want to involve lawyers, in a misguided attempt to enhance the scheme’s credibility. I believe that that will make the process more adversarial. Involving lawyers risks causing whoever is involved in the fact-finding investigation to clam up. We do not want lawyers asserting or defending legal rights, as that will import into the process considerations of fault and defensiveness, whereas we believe that the investigation needs to be open and transparent. The Government proposals are the worst of all worlds, and will add to precisely that blame culture that the Minister says that he wants to avoid. In addition, there is the question of cost. The more lawyers involved in the investigation, the greater will be the cost—to the scheme and to the NHS and at the expense of patient care. In other words, if more money is soaked up in lawyers’ fees, less will be available for patient care. The NHSLA annual report for 2006 came out a couple of days ago, and made reference to the problem. The Government may think that only the Opposition are concerned that ever higher costs will divert resources away from patient care, but the report states:"““The Authority remains concerned about the relatively high legal costs which are often incurred in clinical negligence claims, and which do not benefit either injured patients or the NHS.””" Yet the Government want to involve more lawyers earlier in the process. The added costs might be worth while if it could be shown clearly that they added value, but the evidence suggests that they would not. The objective measure of the performance of so-called specialist lawyers is worth considering. In a letter to a member of the public dated 7 November 2002, the Legal Services Commission stated that, since August 1999, only specialist lawyers had been able to start new cases on legal aid. In 2000-01, the overall success rate in clinical negligence cases was 23 per cent. for specialist lawyers, and 24 per cent. for non-specialist lawyers. According to a written answer to me on 17 January 2006, in the last year for which figures were available, the overall success rate for legally aided clinical negligence cases had remained at 23 per cent. The figures are revealing. First, they show that about five or six years ago, when ongoing legally aided clinical negligence cases had specialist and non-specialist lawyers, the performance of both categories of lawyers was roughly comparable. Secondly, even though legal aid was made available only to specialist lawyers in 1999, the figures show that there has been no improvement since then in excluding opportunistic and unsustainable claims. We feel that lawyers should be restricted to the offer stage. Involving lawyers would replicate the problems of the adversarial litigation system. It would add to the cost of the redress process and subvert its functions, with the focus on compensation rather than on explanation. In many cases, involving lawyers would be the worst of all worlds; it would import the bad aspects of the judicial process—expensive lawyers, protracted cases and complexity—without the benefits of finality and independence. It would certainly add considerably to the cost of the scheme––money that would be better spent on patient care. It being Five o’clock, Mr. Deputy Speaker put forthwith the Question already proposed from the Chair, pursuant to Order [5 June]. Amendment agreed to. Mr. Deputy Speaker then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour. Amendment proposed: No. 5, page 5, line 1, leave out paragraph (a).—[Mr. Baron.] The House divided: Ayes 173, Noes 254.