NHS Redress Bill [Lords]

It is with mixed feelings that I rise to speak on Third Reading. We had hoped to support the Bill, which has the worthy aim providing an alternative to going to court for NHS patients seeking redress, but despite some lively and learned debates, both on the Floor of the House and in Committee, it is significantly weaker than the measure that was brought to the House from another place. We thank you for supervising our debates and for your customary patience and guidance, Mr. Deputy Speaker. The principles underlying the Bill were at least tested and clarified during its passage through the Commons; I accept what the Minister said on that point, to a certain extent. I thank the Clerks for their advice on amendments and procedure, which was extremely helpful. I pay tribute to my hon. Friend the Member for Eddisbury (Mr. O'Brien), who served as Conservative Whip in Committee. He gave us the benefit of his legal training on a number of points, and I am grateful to him. The hon. Members for Romsey (Sandra Gidley), and for Wyre Forest (Dr. Taylor), helped to ensure that our attempts to improve the Bill were pursued on cross-party lines. I am grateful for their support, which built on the amicable partnership established by noble Friends in another place. I, too, thank all Members for their contributions, both in the House and in Committee. I commend the Minister on guiding his first health Bill through the House, although trying to pin him down on some of the issues has been a game of cat and mouse. However, we can save that subject for another day. The overall objective of the Bill—to provide an alternative to going to court by creating a redress scheme—has been widely welcomed. As we know, clinical negligence litigation is complex, costly and basically unfair. Most people do not qualify for legal aid, yet most cases are legal aid-funded. Most clinical negligence cases fail because legal aid is the fuel for unmeritorious claims. A scheme established under clause 1 could widen access to redress and offer patients what they say they want most: a proper and honest investigation into what went wrong, an explanation and, when appropriate, an apology—there is no difference between us on that. Under clause 3, an offer of compensation might be appropriate, but financial redress usually comes far down the list of patient priorities, as a number of Members have said. The Minister will know of my great disappointment with the Bill in its current form. I do not believe that the fact-finding stage of the investigation will inspire confidence in patients, because the investigation will not be independent. What is more, the objectivity of the fact-finding investigation is likely to be subverted by the involvement of lawyers under clause 8. Many features of the current disastrous system for dealing with clinical negligence have been imported into the redress scheme, and overall the Bill will not succeed in shifting the culture of the NHS towards one of greater openness and transparency that we all want. Clause 6 is the offending article, because it would allow the NHS to act as both judge and jury in investigations by the trusts. We have consistently argued that someone independent of the trust should conduct the investigation. Patients go to court because they want compensation and an independent investigation into what went wrong during their treatment. In seeking to provide an alternative to litigation, we should have regard to that basic need. Clause 6 is flawed because it does not address such a need. Instead, it allows for the investigation to be carried out by the trust under investigation. That will not inspire confidence in patients and without that confidence, the Bill is likely to fail. The Minister is aware of this complaint, which has been raised by many hon. Members and by many patient groups. However, he seems to be more concerned with reassuring NHS staff than he is with reassuring NHS patients. He has insisted that under the scheme an investigation of facts should not be independent of the trust. He has argued that trusts should have ownership of the process in order to bring about a cultural shift towards greater openness and transparency, but to most people that is entirely contradictory. After all, what could be more open and transparent than inviting an outsider—somebody independent—in to consider all the facts? As we have heard, it is a basic principle of natural justice that no man or woman should be a judge in their own case. The same goes for investigation of cases of possible clinical negligence. Because patients understand this principle, our pragmatic complaint against the Bill is that clause 6 will not satisfy those seeking redress. It will not provide an independent exposition of the facts. The Opposition have similar reservations about clause 8 which, as amended, will import into the scheme the very feature of litigation that has fostered a culture of finger-pointing and blame—that is, lawyers seeking to assert or defend rights. Lawyers are costly but add limited value to a fact-finding investigation. They have no place in the scheme because individual rights are not being contested. Liability is assessed, rather than determined. They are likely to soak up resources originally intended for patient care, with every incentive to push claims beyond their merits. Lawyers need to be involved only where legal rights are being determined—that is, in relation to an offer of settlement. Specialist legal representation under clause 8 will not guarantee the independence of the investigation. It will merely encourage confusion between fact-finding and fault-finding within the scheme. Accusations of blame will contaminate the objective consideration of facts. That will lead to a more closed and defensive culture among NHS staff. Important lessons will not be learned. Again, the Bill works against the stated aims of the Government. It contradicts the opinion expressed by the Secretary of State on Second Reading that lawyers should be kept out of the early stages of the investigation. It also flies in the face of the recommendation of Sir Liam Donaldson, who argued for a move away from the adversarial culture associated with tort. My deepest frustration with the Bill is that it adds almost nothing to what can be done already. It is unnecessary, in many respects. NHS trusts already have the power to investigate themselves where cases of possible clinical negligence are identified. The Litigation Authority already has the power to make an assessment of NHS liability and offer compensation accordingly. The Bill simply formalises these existing powers. One of the few new things that it provides is free legal advice. That sounds good, but it could be a costly mistake, as experience of legally aided clinical negligence litigation suggests. As amended, the Bill provides for a report on the investigation to be made available to patients, but it then goes on to establish reasons why the report can be withheld in some cases, although I appreciate the Minister’s attempt at clarification on the matter. That was revealing, for it shows how the Government’s priorities are focused on the interests of the NHS Litigation Authority, rather than on the needs of patients, in some respects. In conclusion, we were happy to vote for the Bill on Second Reading, but since then we believe the Government have greatly undermined its potential. The whole direction of travel has been towards a scheme which leaves the trust acting as judge and jury in its own case while simultaneously importing the bad features of clinical negligence litigation. Having damaged the Bill, the Government do not deserve our support. For this reason and with great disappointment, I shall ask my Conservative colleagues to vote against Third Reading.