Andy
Burnham: Under clause 10(2)(i) a scheme may
“require a member of the scheme to
prepare and publish an annual report about such cases and the lessons
to be learnt from
them.” The provision
exists. Having created the expectation, it would be right and proper
that there should be a requirement on all scheme members to report in
that fashion on the cases highlighted by the hon. Member
for Romsey. She was right that one problem of the current system is that
cases that finally go to the NHS ombudsman are at too much of a remove.
First, there is the locality in which those cases happen; the local
press does not always read the reports. There is also too great a
remove from the time when those cases happened. I do not know the
average time, but there is ordinarily a long delay before a case is
dealt with by the ombudsman. I agree with the principle that
there should be local accountability and greater speed in dealing with
cases. I would go further and say that that should be a requirement on
scheme members, and the Bill clearly allows that to
happen.
Mr.
Hurd: Have we not just heard an argument for
“shall” rather than
“may”?
Andy
Burnham: As the hon. Gentleman knows, the Bill is in many
ways an enabling one. Much of the detail will come forward in secondary
legislation. Subsection (2) clearly lays out the expectation that he
seeks. We will come to clause 10 in due course, and perhaps he will
make his point again then. Given my assurances about the requirement,
it is clear that we intend to operate in that
way.
Mr.
Stuart: Even though, under a previous clause, a report
should ordinarily be provided, the Minister is unhappy to allow a
report to be included in this case. The Minister is suggesting that he
will not amend the legislation to say even that an annual report must
be provided. We are to take that provision entirely on the
Minister’s assurance, without reassurance being put in the law.
I hope he will accept that that is simply not good enough.
It is a problem that so much is
being left to secondary legislation. On a core issue such as this,
which is of great matter to Members across the Committee, we need an
assurance that, if the Minister cannot accept the argument for a report
to be provided in each case, at least we on the Committee, who are
helping to amend the law, should know that there is a guarantee that
the lessons will be put into an annual
report.
Andy
Burnham: Quite simply, we would not be bringing forward
the legislation if we did not believe that these matters were
important. I make no apology—none at all—for saying that
we will bring forward the detail that flows from the legislation in
careful consultation with stakeholders in the national health service.
We will do so in a way that achieves the objectives of the scheme
without placing undue burdens and distractions on bureaucracy. The hon.
Gentleman would not want that, and nor would we. The expectation is
clearly that an explanation will ordinarily be given in every
case. As I made clear
when pressed by my hon. Friend the Member for Stoke-on-Trent, Central
and the hon. Member for Romsey, I am prepared to say that we should
make it clear to scheme members in good practice guidance that there
should ordinarily be an explanation and, where appropriate, that action
should be taken on the issues that the explanation raises. What
I resist is the idea that the explanation should be the content of a
report published in each case. Our intention is clear. We are bringing
forward the legislation and there is no attempt to resile from the
commitments. We are bringing the legislation forward in a way that
people in the NHS feel is proportionate. Mr.
Baron: I do not believe that it is too late for the
Minister to make a manuscript amendment on this matter, particularly if
we do not reach clause 10 until Thursday. He may wish to consider
changing one word from “may” to
“shall”.
Moving on to clause 12(2)(b), I
point out to the Minister and to Committee members that there is
already a requirement in the Bill to produce a report
“on any lessons to be learnt in
accordance with section
10(2)(h).” We will debate
that when we come to clause 12 but I ask hon. Members from all parts of
the Committee to bear it in mind while we debate clause 3.
On amendment No. 15, I believe
that there is a case of principle. If a report is not written, how can
we guarantee that lessons are being learned? There is something of a
downside with an annual report, because the lessons to be learned could
be urgent. Waiting a year might not be good enough, particularly if
lessons have to be learned, in serious cases of negligence, for the
benefit of patients as a whole. Will the Minister address those
points?
Andy
Burnham: I shall address them directly by saying that I
will not be tabling a manuscript amendment. As I made clear, the Bill
makes perfect provision for what we intend. I am prepared to say that
we should clarify in guidance some of the matters that colleagues have
raised, but the Bill is sound, and there is no need for a further
amendment. On the
hon. Gentleman’s second point, people might not simply accept
the explanation or apology. Everyone accepts that people will argue
about the finance, but they might not either accept the terms of the
explanation or apology. If they do not accept them, they do not sign
away their rights; they can remove themselves from the process and
pursue matters elsewhere. The provisions are simply an attempt to get
the system to confront the case in a better way at a particular stage
and do not close off the option of pursuing matters further. The Bill
is therefore sound and does exactly what I
described.
Ms
Diana R. Johnson (Kingston upon Hull, North) (Lab): I have
listened carefully to what the Minister said about concerns over adding
to the administrative burden on trusts, but will he comment on the
requirements already placed on trusts? There is a requirement that they
publish annually a risk assessment list relating to what they have done
and details of the clinical governance issues that have arisen over the
previous 12 months. I wonder whether that would be a way forward in
dealing with this issue.
Andy
Burnham: My hon. Friend is right on two counts. First, she
draws attention to the fact that the NHS does that work and, to my
mind, does it
extremely well. It seeks to provide redress in whatever way it can. The
point that we are addressing, which the Bill partly seeks to address,
is that that culture can sometimes be too defensive and too
secretive. Secondly,
my hon. Friend is right that such matters are addressed in the
requirements on trusts to put details of clinical governance in their
organisation into the public domain. I therefore agree that we already
have in place a system whereby such things can be done. The Bill asks
whether we can do them even better still and promote a better culture
in the national health service when it comes to dealing with patient
complaints. My hon.
Friend is right to say that we must think carefully, and that brings me
back to my earlier point. In seeking to create the arrangements before
us, we must set up something that is proportionate to the aim that we
seek to achieve. It would be right and proper for an individual who was
not happy with the explanation or the follow-up action to pull back
from the scheme and pursue redress through other avenues. However, we
must create a scheme that is—light touch would be the wrong
word—not over complicated and prescriptive in its
requirements.
Judy
Mallaber (Amber Valley) (Lab): I have been listening
carefully because I am particularly concerned about a case that I have
dealt with. A girl died of meningitis, and there may have been mistakes
by the GP, the ambulance service and the hospitals. I have been seeking
to mediate between the primary care trust, which wanted to get into a
system that was not legalistic and in which it could address all the
issues, and the family’s desires, but it has been quite complex
to get into something that satisfies everybody. I am reasonably
satisfied that the Bill will mean that such people get an explanation
and that it will take account of the changes that need to be
made. Although I am
tempted by the amendment, I have some anxiety that it would make each
individual expect in every circumstance to be given something to show
how a problem will be prevented from happening again, even if it cannot
be prevented. I hope that my explanation is not too tortuous. It is not
just a matter of an administrative burden. A situation could be dealt
with by having clear guidance on what is expected to be contained in an
explanation, without the requirement of a promise that what happened to
one person will never happen again even if such a promise is
unrealistic. Will it be possible to give clear guidance on what should
be in an
explanation? 12
noon
Andy
Burnham: I can give my hon. Friend that undertaking. We
should spell out clearly the circumstances in which authorities should
take action to prevent certain things from happening again. Such cases
will be pretty clear to us from our own experience. I agree with my
hon. Friend that to create an unrealistic expectation that everyone
will get a report stating action to be taken could cause unnecessary
distress or argument. If no action is taken, people might feel that it
should be. There are provisions in the Bill to deal with such matters
in a balanced way, and we do not
need to go a step further and make reports a requirement in every case
handled in the NHS redress
scheme. We have
rightly spent a lot of time on amendment No. 15, but I wish to move on
to amendment No. 18, which is intended to do something slightly
different: to enable the scheme to make provision about the disclosure
of all findings made during the investigation of a case and any
assessments of liability in tort to a patient or their representative.
The Government intend that in any case under the scheme, relevant
material will be disclosed to the patient or other individual eligible
for redress. I hope that my hon. Friend the Member for Birmingham,
Erdington, will be reassured on that point. For example, we intend that
medical records, adverse incident reports, complaints files and health
and safety executive investigation reports, when relevant, will be
disclosed.
Mr.
Simon: I thank the Minister and am reassured. Like many of
the outside organisations that are following the Bill closely, I
understand his desire to craft enabling legislation and not to surround
the process with deadening bureaucracy. Nobody wants an
over-prescriptive Bill, and if the Department wants to create enabling
legislation and do much of the work through regulations afterwards,
that is fine. However, the quid pro quo is that reassurance and soft
undertakings on guidance and secondary legislation are needed. They
would make our proceedings much more meaningful for those of us who
believe that the Bill is good at heart but want to see the Government
take advantage of the opportunity that they have
created.
Andy
Burnham: My hon. Friend is right to press me on that
important point. We must create a scheme that will deliver openness,
less secrecy and a more confident and forward-facing culture, and with
such a culture comes disclosure. A case under the scheme will mirror
the situation of one handled by the NHS Litigation Authority under the
clinical negligence scheme for trusts. All the existing statutory
rights of access to information under the Data Protection Act 1998 will
apply. In an earlier
intervention, my hon. Friend rightly said that the system will not
present extra bureaucracy, because an investigation report will have
been prepared by a trust anyway, particularly in the most serious
cases, under the NHS redress scheme. I think that he is referring to
such reports with reference to full disclosure under the scheme.
Amendment No. 18 would provide for such a report to be
disclosed. It is
intended that the scheme may provide for investigation of cases to lead
to a report, and we intend to consider further, in consultation with
stakeholders, whether the investigation report should be made available
to the patient or an individual who is eligible for redress, subject to
any restrictions connected with patient confidentiality or data
protection. That would of course be in addition to the explanation of
what had gone wrong, under clause 3(2), which we spent some time
discussing. It is the
Government’s intention that the scheme authority will publish
guidance to scheme members about their functions under the scheme,
including sharing examples of good practice, as appropriate.
That will include guidance on the matters to be covered in an
explanation, to encourage the move towards a more open culture in which
full and open explanations are provided as a matter of
course. I hope that I
have given my hon. Friend the assurances that he wants, but I must
point out that the need may arise for non-disclosure to some extent.
There may be situations in which it is not appropriate for personal
information to be disclosed; for example, if an application has been
made to the scheme by a dependant, following the death of a relative
who wanted their medical records to remain private and confidential, it
may not be appropriate for all the details, which may include the
medical records, to be disclosed to the surviving relative.
That becomes complicated legal
territory and although I want to go with the grain of what my hon.
Friend says, I hope that he will respect the fact that it would not be
right to give a blanket commitment to disclose all details in
investigation reports. There would be circumstances in which people
would not want their details made available to third parties.
The amendment seems to envisage
the disclosure even of information about the assessment of liability.
Confidential communications for the purpose of obtaining legal advice
and assistance may be privileged in accordance with the general rules
of legal professional privilege, and we believe that it is appropriate
for those general rules to apply to the NHS redress scheme.
For those reasons I oppose the
amendment, but I assure the hon. Member for Romsey that we are
committed to an appropriate level of disclosure under the scheme. I
believe that we are going as far as we can to satisfy my hon. Friend
the Member for Birmingham, Erdington and others in establishing a
scheme that is based around the patient and help for the patient in
moving forward, but which balances that with confidentiality and
considerations of data protection.
We want to find the appropriate
level of disclosure and intend to consider further, in consultation
with stakeholders, whether the investigation report should be made
available to the patient or individual who is eligible for redress,
subject to restrictions in connection with data protection. A balance
is needed between ensuring that sufficient information is disclosed to
enable legal advisers accurately to assess whether an offer under the
scheme is fair and reasonable, and ensuring that confidential
communications remain privileged, as is appropriate in accordance with
the general rules of legal professional privilege.
It should be considered that
people who gave a full and frank explanation during an investigation of
what went wrong and why might not want all their comments to be
disclosed. In the interest of openness and honesty, we should
understand that full disclosure might prevent people from coming
forward with full and detailed explanations. There is a balance to be
obtained in all those matters, but, as is generally true in such
matters, the Government’s direction of travel has been towards
freedom of information, and making information available where
appropriate. That is what we intend by the NHS redress scheme. With the
reassurances I have given, and our long debate on the proposals, I hope
that the hon. Lady will ask leave to withdraw the
amendment.
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