NHS Redress Bill [Lords]


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Andy Burnham: I understand the reasonable points that the hon. Gentleman is making. I fully respect the argument that he just put forward. Of course it would not be right if the scheme were just a fast-track compensation scheme or an explanation scheme whereby complaints were quietly put on the shelf, everybody forgot about them and people were slightly let off the hook. We are trying to create a scheme that allows accountability and properly opens up whether there has been poor practice or whether there are defective procedures. The scheme has to be balanced. It should not be unduly administrative or bureaucratic, but should be able to deal with issues speedily and properly and then report on them. In response to amendments, the commitment was given that an annual report should be published, the purpose of which is to differentiate those cases that she is talking about from others that do not carry the same significance.
Sandra Gidley: Although the idea of the annual report is welcome in many ways, somebody who is trying to come to terms with something that has happened to them could be waiting a long time before they gain access to that report. In order for an individual patient to move on and put an incident behind them, it could be important to have the facility to request an explanation of what happened and an action plan to prevent it happening again. So I revert to my previous question. Will the Minister consider a clause or a scheme by which an individual could ask for an action plan if they felt that it was important to them? It would not create a bureaucratic burden in every case, but it would help those patients for whom that was the prime motivation in bringing a case.
Andy Burnham: That is largely what happens in the health service at present. I understand what the hon. Member for Birmingham, Erdington said about the strong sense of grievance, and I always pursue cases. Most of us do that—we do not give up on the case because we were not on the receiving end of it. People who feel motivated to keep coming through the doors of our surgery obviously have unresolved issues that need to be dealt with. I fully believe that good practice in the NHS means a direct confrontation between the service and patients, often face to face, through a meeting with a senior clinical director or the chief executive so that the issues can be unlocked.
In my experience, if people are clear about what they want and what was wrong in their case, the national health service is good at responding. I am not disagreeing with the hon. Lady. I am resisting placing in the Bill a requirement to produce a report on each complaint handled by the NHS redress scheme that would lead to lessons being learned and action being taken. I do not think that that is appropriate for a scheme of this kind. As the hon. Member for Southport rightly said, many cases will arise from human error, a basic mistake or a very complicated set of circumstances that is extremely unlikely to happen again. There would not be any merit in such a report.
Mark Fisher (Stoke-on-Trent, Central) (Lab): I have been listening very carefully to what the Minister has been saying. I am waiting to hear an explanation of why he is resisting what seems to be an eminently reasonable and modest amendment. If we are here discussing redress for patients, the publication of the individual account of what has gone wrong seems to be the most modest and basic way of redress. It is not victimising people or causing an enormous fuss; it is just getting to the facts and allowing people to have the chance in the light of evidence to come to terms with what has been traumatic for them. All that I have heard from the Minister in resisting the proposal is that it will be an administrative burden and an unreasonable burden. I am not sure that that addresses the problem.
Has he any evidence from hospital authorities about the cost, either in time or finance, of the burden upon which he is putting so much emphasis? Has he any empirical evidence that it would be a great burden to produce a report on an individual case? Surely that is the least that a patient, or a family if the patient is deceased, has a right to expect. I cannot see that it would be a huge financial or administrative cost to a hospital authority to carry out such a simple act.
Andy Burnham: Perhaps I have not explained myself well, and I shall try to do so in response to my hon. Friend, who raises fair points. In response to the hon. Member for Romsey, I said that the Bill states that “ordinarily”—we take that to mean in almost every case—an explanation will be given to a person. As she rightly said, that is what people want. They want to know what happened and why. The explanation will essentially be a report on what happened, and the person concerned will be able to examine it and consider whether they believe it to be accurate. As the Bill says, an apology may also be made.
Amendment No. 15 would require a report
“on action being taken to reduce the risk of similar errors being repeated.”
As I tried to say to the hon. Members for Romsey and for Southport, that may not be appropriate on every occasion. A report on action being taken to prevent a repetition may not be needed in every case.
Mark Fisher: What are the figures?
Andy Burnham: I will be interested to find out the figures, which I do not have to hand, on how many of the cases in question relate to simple human error or a basic mistake such as a product being used that should not have been used. The individual who has made the error may readily say, “I made a mistake. I shouldn’t have done that.” However, there might be a complicated, unique set of circumstances. There is a difference between cases of human error and those that raise broader issues about the way in which services are provided.
Clause 10(2)(i) deals with such cases, stating that a scheme may require a trust to prepare a report for local consumption on the cases of that nature that have been referred to it and the action that has been taken to address the problems. It is right to make a distinction between the two types of case, with which we are all familiar. There should not be a blanket requirement to produce a report on action taken, which will not always be appropriate.
Mark Fisher: I am sure that my hon. Friend the Minister is defeating his own case. Everybody would concede that there is a distinction between cases of human error and cases that are not human error and need to be put right for the future. He says that dealing with cases of human error through reports would be unduly bureaucratic, but surely the return on such cases will be effectively nil—just a one-line statement at the end of a report stating, “This was human error. We need to learn no lessons from it except that we are all human.” There will therefore be no administrative burden or cost at all. The Minister has defeated his own argument by identifying the fact that there will be no cost attached to making such a statement.
Andy Burnham: I do not think so. I shall leave others to be the judge of that. I hope that in the making of an explanation and the giving of an apology, it will be good and normal practice for a trust to say, “Following your case, these were the issues raised.” That should be part of the normal conclusion of a case under the scheme. I accept my hon. Friend’s legitimate point, and a trust should at least consider whether broader issues have arisen when finalising the terms of an explanation and an apology, should one be required.
Mr. Simon: Will the Minister give way?
Andy Burnham: In a moment. I will give way to everybody who wants to contribute. I agree with what my hon. Friend says, but I am resisting the notion that a report on the action being taken to prevent a problem happening again should be prepared in every case. I do not believe that such a report would properly deal with the explanation. There is no need for a report in every case. My argument is that if a person agrees to the redress that they are being offered, the trust should come back and make a broader statement about how the case is being dealt with.
I draw hon. Members’ attention to clause 10(2)(h), which places a duty on scheme members
“to charge a specified person with responsibility for overseeing the carrying out of specified functions... under this Act and advising the member about lessons to be learnt from cases involving the member that are dealt with under the scheme.”
That creates a mechanism within the trust whereby a named individual is responsible for the functions to which my hon. Friend rightly drew my attention. I argue that we have probably got the balance right here, between something that is not a paper-shuffling scheme or a box-ticking scheme. That is not the intention; the intention is to create a scheme that does what we want it to do, which is to investigate people’s complaints properly and then take the action appropriate to provide redress to the individual, and to ensure that the organisation has learned from its errors. If there is a difference between us on the issue, that is it, although I do not know whether I have convinced my hon. Friend.
Mr. Charles Walker (Broxbourne) (Con): There seem to be some grey areas in the arguments being advanced. Almost all errors committed in the NHS are due to human error. After all, we control the environment in which we work. There will be catastrophic disasters, such as a plane crashing into a hospital, or a tree falling down—
Martin Salter (Reading, West) (Lab): When?
Mr. Walker: I am talking “Casualty”, with all those exciting incidents—it is oil tankers in “Casualty”. However, most error is down to human error. We seem to be confusing the issues, thinking that human error will always be well-meaning error. We should not assume that if someone makes a mistake, they will apologise for it, because it was a totally understandable mistake to make. However, a lot of error will be down to idleness and incompetence. It is very important to the patient that when idleness or incompetence are identified, they receive at least the assurance that the individual or individuals responsible will be dealt with effectively.
Andy Burnham: I am not sure that it will always be down to idleness or incompetence, but I understand the point that the hon. Gentleman is making. I do not think that I am at odds with the majority of the Committee on the matter. I want to be sure that we are getting the scheme right. All of us must be careful about the kind of scheme that we pass over to the national health service. It is not a trivial matter, and we must all think carefully before we put in place an extra burden on anybody who works within the national health service. We have to think whether it is clearly justified, right and proper that an extra requirement is given, judging the benefits versus the cost.
I am arguing that the benefits that the hon. Member for Romsey seeks in her amendment are already addressed in the Bill. The mechanisms are there to deal with those cases: in the annual report that we have said that we would accept; in the further scrutiny of such reports by the Healthcare Commission, which we welcome; and in stipulating that a named individual within the trust will ensure that lessons are learned from cases.
11.45 am
Mr. Simon: We are at risk of continually hearing that if we look at best practice in the health service, this is already being done and that is already being done. But that is not really the point. There is no doubt that there is good practice in the health service and lots of good things, but we are supposed to be writing a law saying exactly how things are supposed to be done in future. We are not supposed to be leaving it to people’s good will and intentions. Many people in the health service are already doing things very well.
On the specifics of amendment No. 18, we should be clear that it does not talk about learning lessons. It is not a lessons-learning amendment. Nor does it talk, crucially, about the commissioning of a report. This is not about imposing a bureaucratic requirement on the health service, or on anybody, to commission a report. The amendment talks about providing to the claimant the details of the report, which as part of the process will, de facto, already have been written. This is not about commissioning a new report, but about publishing details of the inquiry already undertaken. On that basis, what good reason have the Government for withholding from the claimant details of a report that has already been written? And if one has not been written, what kind of investigation has there been?
Andy Burnham: I disagree; I think the amendment is a lessons-learning exercise.
Mr. Simon: Amendment No. 18?
Andy Burnham: Amendment No. 15 is the amendment we are discussing. Our debate with the hon. Member for Romsey concerned amendment No. 15, which is very much about a lessons-learning exercise. It refers to
“action being taken to reduce the risk of similar errors being repeated.”
Mr. Simon: I was talking about amendment No. 18.
Andy Burnham: I accept that and shall address that amendment. My hon. Friend is right, and there are important issues in that amendment, too, but I should first like to finish dealing with the issues relating to amendment No. 15, which is very much a lessons-learning exercise. I heard the comments that hon. Members made, particularly the my hon. Friend the Member for Stoke-on-Trent, Central (Mark Fisher). He made a fair point, as did the hon. Member for Romsey.
I said that people should ordinarily know what action is being taken. Perhaps we could go further and set it out in good practice guidance that all explanations provided under the NHS redress scheme should conclude with an account of the action being taken in response, where that is relevant. It will not always be relevant because often there will be a self-contained issue. I accept the point that it may be relevant in some cases, but the giving of the explanation to me is the preparation of the report. If we take on board what the hon. Lady has said, and extend the process in that way, we may get to where she wants to be.
Mr. Nick Hurd (Ruislip-Northwood) (Con): The Minister’s fig leaf in this debate is clause 10(2)(i) and the annual report. To my reading that paragraph does not impose a duty; it simply says that if the Secretary of State sees fit, a scheme may require members to prepare a report. Am I to deduce from his remarks that the Government intend to firm that up and make it a duty?
 
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