Mr.
Baron: I listened with care to the hon. Member for Romsey.
The trouble that we have with the amendment is that it proposes such a
fundamental extension of the scope of the redress scheme that it
requires a review by Parliament. If the amendment were allowed to
proceed, it would in effect extend the redress scheme to primary
services by secondary legislation. We have two concerns about
this. Most care is
delivered as primary care, so restricting the scope of the redress
scheme to secondary care is to agree to a de facto pilot scheme. It
could be argued that extending the scheme to include primary care would
be too big a step too soon, given that we do not know how the redress
scheme in its present form will
work. There is also an
issue about organisation. We know that the NHS Litigation Authority is
primarily concerned with secondary care and that medical defence
organisations such as the Medical Protection Society and the Medical
Defence Union are concerned with primary care. By extending the Bill
one could envisage organisational difficulties. In summary, I would
suggest that the amendments are a little bit too much, too
soon. Dr.
John Pugh (Southport) (LD): Does the hon. Gentleman accept
that the boundary between primary and secondary care is increasingly
going to be blurred? The Government are talking about courses of
treatment based on tariffs that are going to be unbundled and
distributed between primary care and secondary care providers. When
treatment turns out wrong, will we take action about only one section
of the treatment?
Mr.
Baron: I accept that. It is a valid point. Increasingly
the emphasis in health care—this view is shared on both sides of
the House— is on looking at the patient journey as one and
bridging the gap between health and social care. There are so many
unknowns in the operation of the redress scheme as presently
constituted. This is an enabling Bill with very little detail and to
extend it to the whole of the NHS would be a step too far too soon at
this point. Let us see how the redress scheme operates first in a de
facto pilot scheme and we can review the situation in the years to
come.
Andy
Burnham: I am not unsympathetic to the points that the
hon. Member for Romsey made; I said as much on Second Reading when she
raised this point. She is right that the proposal very much picks up
the direction of travel within the health service towards more care
being delivered closer to people’s homes and, where possible, in
primary care facilities. She is not wrong and nor is she wrong to raise
the issue about boundaries becoming increasingly blurred, but I will
deal in detail with these points. Although I do not have a closed mind
on this issue, I think that now would be the wrong time to broaden the
scope of the scheme in the way that the hon. Member for Billericay
suggested.
Sandra
Gidley: I understand what the Minister is saying. Who will
be to blame where a mistake has been made that is partly the result of
an error in a hospital sector that was not picked up by somebody in the
primary sector? Will any individual who suffers ill effects or has to
have time off work as a result of that error have to sue their GP? Will
they have to go through the NHS redress scheme? In those cases, how are
the two sectors to work
together?
Andy
Burnham: The case would be picked up by the scheme if the
care had been commissioned and provided in a secondary care setting. I
am acknowledging that she is right that there may be blurred
boundaries. Clause 1(5)(b) contains a provision to lay out in
regulations some of those blurred boundaries and to give some clarity
via secondary legislation. That is important because, as things change,
it is important to have the ability to respond quickly via secondary
legislation. I want
to draw the hon. Lady back to the principle. While I am not
unsympathetic, the way in which this scheme is constructed has more to
do with the structure of the national health service since it began,
and the status of primary care practitioners as independent contractors
to the service. At present, the way in which litigation is handled by
the national health service is considered separately. As the hon.
Member for Billericay was saying earlier, the amendment would broaden
the scope of the scheme enormously, but it would be a mistake to do so.
The amendment would take us into a whole new terrain, where the
national health service would pick up—via a fast-track
out-of-court settlement scheme—the liabilities of primary care
practitioners who, as the hon. Lady rightly said earlier, are currently
covered by personal indemnity insurance. So that would be a major
change. Let me go
through some of the issues in detail so that I can directly answer some
of the hon. Lady’s concerns for the record. Amendment No. 10
would widen the potential scope by removing a specific exclusion laid
down in the Bill. During a debate in the other place, concerns were
raised that the scheme was incapable of adapting to the increasing
diversity of NHS health care provision. We acknowledged that some
services could be in a grey area between primary and secondary care,
especially as the NHS moves towards provision of traditionally
secondary care in a primary care
environment. We tabled
a series of amendments to clause 1 which would enable us, via secondary
legislation, to list services outside hospitals that the scheme may
cover. This gives us flexibility and allows the scheme to be adapted in
the light of changing methods of service provision and
delivery. We consider
it appropriate to set out in secondary legislation details of which
hospital services should be designated as qualifying services for the
purpose of the scheme. Our intention is that the power may be used to
cover the kind of services usually provided in a hospital. For example,
pathology and laboratory services can now be provided either in
hospitals or in freestanding mobile units. Other examples of services
that can be provided in hospital but in future may be provided more
frequently outside the hospital setting are palliative care and
ambulance services. So there is a broad area that secondary legislation
can begin to be specific about. We think that that is the right way to
structure the Bill at this
time. I
understood the hon. Lady’s point about the relationship between
the GP and the individual patient and the stress that can be caused to
both parties when an individual makes a complaint against a GP. It is a
valid point and one that has been made by Action against Medical
Accidents—AvMA—in its documentation. That is the kind of
point that we would want to consider in more detail once the NHS
redress scheme had been operating for some time; we would look at
whether there was a case for extending its reach.
However, we remain convinced
that primary care should remain excluded from the scope of the scheme
and therefore we will oppose amendments Nos. 10 and 11. Extending the
Bill to include primary care wholesale would be problematic because
professionals cover their liability through private insurance
arrangements, rather than through NHS indemnity insurance. Moreover,
further consultation would be needed to develop a scheme that worked
effectively in primary care and had the confidence of primary care
professionals and insurers. The redress scheme has been costed only for
NHS clinical work covered by the clinical negligence scheme for
trusts. The cost of
including primary care within the scope of the Bill has been modelled
by departmental economists as up to an extra £56 million per
year. We are not resisting the amendment because of that
cost—there may be good reason in future to accept that cost as a
better way of providing redress in the primary care setting—but
it is obviously a relevant factor at this point. As it is likely that
any claims emanating from a primary care setting would be of lower
value, given the nature of the procedures that are carried out at that
level, it would raise bureaucratic questions about the level at which
primary care practitioners, as opposed to a hospital trust or a primary
care trust, were required to pay to become a member of the
scheme.
Sandra
Gidley: The Minister is rightly focusing on the financial
aspects, but a big part of the thinking behind the redress scheme is
that there is proper investigation and perhaps an apology or an
explanation is offered to the patient. If a patient in primary care
still has to go down the route of suing a GP, what do the Government
plan to put in place so that the same sort of open culture—the
willingness to be open about mistakes and to prevent future occurrences
of such mistakes—can be achieved in primary care
too?
Andy
Burnham: The hon. Lady raises an important point. The
Government already have in place mechanisms to ensure that best
practice is shared across the NHS and that there is a culture of
openness. The National Patient Safety Agency, for instance, is heavily
involved in work in this area. I agree with her.
The outcome that she wants is desirable. I hope that the NHS redress
scheme will have an influence beyond the number of people who come
through the scheme, and will change attitudes and the culture in which
problems are investigated by the health service at all levels. I hope
that it will have an impact at an earlier stage—at the patient
advice and liaison service stage—and further on in the process,
too. It would be a positive change and we would want to see that spirit
going through the whole system.
I agree with the hon.
Lady’s objective. It is an important one to keep hold of. The
vast majority of general practitioners do this very well and have clear
procedures for handling patients’ complaints. Those procedures
are used properly at the local level, with the involvement of the
primary care trust. It is therefore not the case that there are no
procedures in place: there are, and the vast majority of general
practitioners use them successfully and to the satisfaction of their
patients. I do not disagree that we can always try to improve the
situation. 11
am
Dr.
Pugh: Will the Minister help me with the economic
modelling? Presumably a certain amount of litigation is taken already
against primary care providers. Has that been factored into the
calculations? Is the cost that he mentioned purely additional
cost?
Andy
Burnham: I will have to come back to the hon. Gentleman on
that point. My note on the work that has been done by departmental
economists describes the cost as being £56 million a year. I do
not know whether that figure is based on the knowledge that more claims
would come forward if there were such a scheme for primary care, or
whether it is based on the current number of complaints. The estimated
cost would be additional to what is currently spent, which suggests
that the consideration of the figure has taken on board complaints that
may not have been pursued if there were no such
scheme.
Dr.
Pugh: So is there no presumption implicit in the figures
that people who currently litigate will transfer to the redress scheme,
and so save the NHS
money?
Andy
Burnham: The presumption behind the figures is that it
would cost an extra £56 million a year if there were such a
scheme in place for primary care. Currently, cases are handled outside
the NHS. An individual practitioner has his or her own professional
indemnity insurance, and the arrangement exists outside the NHS. If a
redress scheme covered primary care, it would absorb the
cost. As I said in
response to the hon. Member for Romsey, we must consider the way in
which general practitioners would be charged to be scheme members and
what a fair structure would be. There would have to be different
mechanisms in the scheme for big providers, such as acute trusts, and
smaller providers. It is not appropriate to introduce that sort of
administrative detail into the Bill. I do not rule it out in
perpetuity, but at this stage it is important to establish a viable
scheme that can do the job that we want it to do and that does not bite
off more than it can chew.
Covering primary care would need careful consideration and consultation
with professional bodies, which has not yet
happened. Clause
1(6) provides that primary medical services, primary dental services,
general ophthalmic services and general and local pharmaceutical
services will specifically be excluded. That will avoid the problems
involved in extending the scheme to cover primary care wholesale. We
have not allowed flexibility in the matter, because as the hon. Member
for Romsey will know, the Delegated Powers and Regulatory Reform
Committee does not like Ministers to take broad powers when they have
no immediate intention to use them. It is right for the Bill to limit
the reach of the
scheme. The hon. Lady
asked for a timetable. Our intention remains that the scheme will be
reviewed three years after its implementation, with a view to
considering whether to expand its scope to cover primary care. As she
can see, that would require primary legislation. I put it to her that
it would be a major change and would require a major round of
consultation with the British Medical Association, the Royal College of
General Practitioners and other interested parties. All the
administrative arrangements would then need to follow.
The scheme that we propose is
the right one at this stage, and I hope that I have given the hon. Lady
some encouragement by promising a review and saying that there may come
a time when a future Government believe that a scheme covering primary
care is the right way to go. Such a decision would probably arise from
the scheme being set up successfully, establishing itself and doing the
job for patients that we want it to do. Once that has happened, the
argument for its reach to be broadened across the health service could
be made. That is the right way to approach the issue.
I hope that the hon. Lady will
see fit to withdraw her amendments.
Sandra
Gidley: I thank the Minister for his comprehensive
response. There are many complexities involved in including in the
scheme people who are perceived as employees of the NHS but are
actually contractors of it, so I understand the reluctance to include
GPs at this stage. My concern was more connected with the other health
professionals who deliver health care across the boundaries of primary
and secondary care. As the Minister assures me that subsection (5)(b)
will get round that problem and that the situation will be under
constant review, I beg to ask leave to withdraw the
amendment.
Amendment, by leave,
withdrawn. Clause
1 ordered to stand part of the
Bill. Clause 2
ordered to stand part of the
Bill.
| 
