Clause
3Redress
under
scheme
Sandra
Gidley: I beg to move amendment No. 15, in clause 3, page
3, line 4, at end
insert— ‘(d) the production
of a report on action being taken to reduce the risk of similar errors
being repeated'.
The
Chairman: With this it will be convenient to discuss
amendment No. 18, in clause 6, page 4, line 17, at end
insert— ‘( ) about the
provision to a person seeking redress under the scheme of a report on
the full findings of any investigations into an incident which is the
subject of proceedings under the scheme and assessments of liability in
tort under the
scheme'.
Sandra
Gidley: The stated aim of the Bill is to ensure not just
that there is financial compensation but that patients receive a proper
report of what has gone wrong and that they are clear about what
actions are being put in place to ensure that the same mistake is not
repeated. On Second Reading there was consensus among hon. Members from
all parties that if the problems that came to the notice of a
constituency MP were investigated sooner and taken more seriously, if
apologies were made and the patient was reassured that something was
happening to prevent further mistakes, life would be much simpler, for
the constituent’s MP if for nobody
else. Research has
shown that most people’s motivation is to ensure that mistakes
are not repeated. It is sometimes frustrating to receive a bland
response saying, “Yes, we have got an action plan in place, so
you can be reassured that this will not happen again.” Health
professionals are not always open about sharing that action plan with
others. That is the area that the amendments seek to address. Amendment
No. 15 would make it a requirement that the provision of assurances
that lessons have been learned and action will be taken to reduce the
risk of errors being repeated is an essential part of the redress
package. At the moment, it is not clear that that must happen. To our
way of thinking, it is a fundamental part of the
review. I gather that
there are plans for an annual report that will be anonymised. That is
not enough for the individual patient who, having brought a complaint,
wants to be absolutely clear that action is being taken in their local
area, that they know what that action is and that there is openness and
transparency about the
process. The Bill does
not require any reporting of the results of investigations or
assessments of eligibility for redress under the scheme. Only an offer
of redress, apology and explanation is required for people who are
assessed by the scheme as being eligible for redress. Those who are
assessed as ineligible may get nothing at all. In order to make a
decision as to whether to accept an offer of redress or accept an
assessment of being ineligible for redress, it is important that the
patient has the full facts and rationale for the decisions made. That
is in the spirit of openness that the National Patient Safety Agency is
trying to foster. It would clearly be unfair and unreasonable for such
information to be withheld. It would seriously undermine the
credibility of the scheme and the culture of openness that is aspired
to.
Mr.
Baron: We have a lot of sympathy with amendment No. 15.
However, clause 10(2)(i) refers to reports being produced and to
lessons learned. Having said that, the hon. Lady has made a powerful
case for amendment No. 15. The bottom line is that research has clearly
shown that when something goes wrong,
what patients want is often only an explanation, an apology and an
assurance that the lessons have been learned. Compensation does not
necessarily rank high on their list of priorities. Many patients just
want to know that what happened to them will not happen to other
patients in the health service. It is almost an altruistic approach:
they are keen that lessons are learned for the benefit of
others. The open,
independent fact-finding investigation that we propose reflects those
priorities. Patient safety is promoted by ensuring that lessons learned
are not lost. Amendment No. 15 reinforces that point and asks that a
report be produced. Although, as I mentioned, reports are required in
other clauses in the Bill, an individual report—rather than the
annual report envisaged in clause 10—may be a worthwhile
step. It appears to
many that the Government’s focus in the Bill on compensation
does not reflect patient priorities. In some respects, their focus may
subvert the purpose of the investigation. It also means that the
importance of the explanation and any lessons learned risk being
relegated. The production of a report based on an individual case may
rebalance the situation somewhat. So I wholeheartedly concur with
amendment No. 15 and am happy to support
it. I have more of a
problem with amendment No. 18. The system in the Bill separates fact
finding from fault finding. At the end of the fact finding, patients
are at liberty to accept an offer from the NHS Litigation Authority, as
determined by its internal procedures, or to go to a resolve-type
scheme, to mediate in some other way or, as a last resort, to go to the
courts if they wish to seek compensation. The crucial matter is that
the facts, not the fault, are what is important under the scheme. In
such circumstances, the report would not ordinarily be available. That
is the way in which the law works. So, I am somewhat indifferent to
amendment No.
18.
Dr.
Pugh: I will speak briefly in favour of amendment No. 15.
It is, to some extent, pushing the envelope because it extends the
giving of redress to include a report on similar cases and changes
being put forward by the hospital to stop similar errors occurring. I
can recall many cases to which the amendment would apply. My reason for
supporting it goes back to a particular case in which an elderly
gentlemen who was very ill—he subsequently died, although that
had nothing to do with this episode—was asked to walk when he
arrived at hospital because there were not enough wheelchairs. He had a
very painful experience, when he should have been whisked into hospital
in a wheelchair. I
was contacted by the family. It was perfectly apparent that they did
not want money or any redress for their father, who was by then
deceased. Nor did they want heads on the block. They just wanted to
know that no such thing would happen again. When I investigated the
matter, I found out anecdotally that there were enough wheelchairs in
the hospital, but they were in the wrong places. In some cases,
wheelchairs had been taken incorrectly by members of the public. There
was something to be learned from the episode. The redress that the
family wanted was that the message had gone to the hospital that this
sort of thing should not happen again.
11.15
am It is not my
job to point out weaknesses in the amendment, but one weakness is that
in some cases there will be no lessons to be learned. There is human
error even in the best-designed schemes, procedures and protocols.
People will ignore protocols or fail to carry out a scheme effectively.
The amendment has force and it should be in the
Bill. Mr.
Siôn Simon (Birmingham, Erdington) (Lab): It is a
pleasure to serve under your chairmanship, Miss Begg.
I support amendment No. 18 and
I agree with the two reasons given by the hon. Member for Romsey why
the publication of a report makes sense. First, it will help those who
may turn out to be entitled to redress to evaluate whether the redress
offered is in their interests, and it makes sense for them to be
provided with the full facts. Secondly, and more important, as the hon.
Lady said the amendment is for those who may be deemed by any process
to be ineligible for redress. It seems unlikely that those people are
random strangers to whom nothing bad has happened who have walked in
off the street and started claiming excessive amounts of compensation
from the national health service.
At the very least, the people
concerned must feel a strong sense of grievance. A report is all the
more important if they have gone through a procedure and been told
that, despite their strong sense of grievance, they are not eligible
for redress under the new scheme or, presumably, under law. In those
circumstances, it is all the more important that they be provided with
a report that gives the facts and the outcome of the investigation,
tries to lead them to an understanding of why their sense of grievance
was objectively deemed to be misplaced and tells them why they are not
entitled to the redress to which they felt they were
entitled. The
Government should have a very good, strong reason not to give people
simple information about what has happened to them and I hope that the
Minister will be able to enlighten us in that respect. The amendment
simply calls for the publication of a report, which should be available
to the people who have been part of the process. To borrow and
cross-apply a parliamentary phrase, a negative resolution or assumption
should pertain in this case. There must be a very good reason indeed
not to do what the amendment proposes, and I shall be grateful if the
Minister will tell me what it might be
Andy
Burnham: I understand where the hon. Member for Romsey was
coming from in tabling her amendment. I also want to pick up on the
closing comments of my hon. Friend the Member for Birmingham,
Erdington. I accept that in many cases people do have a strong sense of
grievance, and it still exists even if the scheme or the procedures
that are in place have not been able to resolve it financially or to
apportion liability. It is important to address the legitimate
questions that people raise, but I do not think that anything that we
are proposing rules that out. In fact, it facilitates precisely that
process and enables people to have a greater sense that their complaint
has been properly investigated and addressed. The hon. Member for
Billericay was absolutely right to say that the vast majority of people
who come through the doors of our surgeries say something along the
lines of, “I don’t want it to happen to anybody
else” or, “I want to be sure that this cannot happen
again”. Although they have felt personal confusion and distress,
the overriding motivation is that what happened to them be exposed and
that changes are made to the system so that the same thing does not
happen to somebody
else. The way in which
the Bill is drafted facilitates that process. The Bill does not need to
lay down that a report has to be produced. I would refer the hon. Lady
and hon. Members to subsections (2)(a) and (b). Obviously the giving of
an explanation is in itself the preparation of a report. It might not
be as formal as a report, but the giving of an explanation is
essentially reporting on what happened, and that is clearly laid out in
the Bill. The phrase “ordinarily to comprise” is used in
clause 3(2), which lays down that that should be a matter of
course. One of the
important benefits which the scheme is intended to provide is an
improvement in the ability of the NHS to learn from its own mistakes. I
do not believe that amendment No. 15 is necessary in order to achieve
that. As others have said, the spirit is that complaints should be
investigated before they are even brought by the patient and that there
should be an open culture rather than a back-foot or a defensive
culture. The Bill will deliver precisely
that.
Sandra
Gidley: I agree entirely with the Minister that the Bill
says: “A scheme must provide for redress
ordinarily to comprise —
(a) the making of an offer of
compensation in satisfaction of any right to bring civil proceedings in
respect of the liability
concerned, (b) the
giving of an explanation,
and (c) the giving of
an apology,”. The point
of the amendment is that we need to go a step further. The hon. Member
for Billericay said that people often say, “I do not want this
to happen to anybody else”. That is not addressed in the Bill.
Patients often feel it is important to know exactly what measures are
being taken to ensure that the mistake does not happen again. The Bill
does not deal with that in the way that a modern NHS
should.
Andy
Burnham: I am sure that the hon. Lady will, like me, find
that every case is different and that some have more merit than others.
With regard to amendment No. 15, we agree that it is important that the
facts are established and that they are reported to the individual;
that the individual can comment on those facts and endorse them. She
will agree that it is often a process of working through the
individual, whether or not they accept the facts of a particular
incident. The hospital comes back to them when the complaint is at the
first stage. That is often the process—there is a to-ing and
fro-ing about whether the “facts” themselves are correct.
The hon. Lady is absolutely right, it is important and there must be
that process so that people can have confidence in the
facts. I do not think
it necessary to formalise that in the primary legislation in the form
of an individual report
on every complaint that is brought. It seems to me that it would place
an administrative burden on members of staff within the health service
to require them to produce a report when the Bill itself says that the
giving of an explanation is in itself a report on a particular
incident. Sandra
Gidley: The giving of an explanation may make clear what
happened, but there is no compulsion to explain what measures will be
taken to ensure that the mistake does not happen again. I accept the
argument that one does not need to make a procedural change in every
case. There is human error, but sometimes there are also ways in which
human error can be factored out. Will the Minister consider a clause
that would allow a patient to ask for an action plan or a report on
what measures were being taken to prevent further recurrences? The
patient should have access to such a report or plan if that is their
prime motivation for bringing the complaint in the first
place.
Andy
Burnham: I agree that not every case will require
procedural change or throw up issues of process that the hospital has
to address. In my experience, that does happen, but not in every case.
For precisely that reason, the Bill was amended. Clause 10(2)(i)
contains a commitment to produce a report. In cases that are out of the
ordinary and throw up issues that, as the hon. Member for Southport
said, involve genuine human error, an apology can be made and we can
make reparation. We hope that everybody will then want to move on from
that unfortunate experience. Clearly, other cases will throw up
questions about a whole hospital process or clinical system and we want
to be sure that information about those cases is disseminated, publicly
available and digested, and that changes are made. Clause 10 will
enable that process to take place without imposing the unreasonable
burden of requiring every complaint to be followed by an individual
report. Mr.
Graham Stuart (Beverley and Holderness) (Con): I feel that
the Minister and the Government risk missing an opportunity here, and I
am sure that some Labour Members feel the same way. The Minister has
explained very well the process that he feels that his constituents go
through, which is reflected in his experience at his surgeries. One of
the driving forces for a patient who feels he has been wronged is a
desire to see change to ensure that the error does not happen again. It
seems a mistake not to ensure that the patients themselves feel that
they can see change in the form of a
report. One of the
reasons for the Bill is that, too often, the NHS is defensive and gives
the impression that it is reluctant to apologise or to accept change.
This is an opportunity to make patients feel that they are creating
change. If they do not feel that their complaint has been properly
taken on board or they do not see a report of change, they may be more
likely to go to
court once they have established the facts rather than to accept this
redress scheme. There is a possibility that the Minister has missed an
opportunity
here. 11.30
am
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