Sandra
Gidley: I am tempted to divide the Committee on amendment
No. 15, as it seems to have support from several directions. I listened
carefully to the Minister, who made a valid point about the proposal
being unnecessary in every case, but I believe there should be
provision for patients to ask for a report if necessary. Therefore, I
give notice to the Minister that I shall table further amendments on
Report to try to pin down the detail, get the proposal right and strike
the right balance. I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn.
Sandra
Gidley: I beg to move amendment No. 14, in clause 3, page
3, line 22, leave out paragraph (b).
I hope that the debate on this
probing amendment will not be as long as the last one. Ministers
confirmed that compensation payable under the scheme will be consistent
with the compensation payable if the case had been dealt with by the
courts, and there is some logic in that. However, the issue is whether
it is logical to put a cap on any individual head of claim because the
clause could mean that some cases are undervalued or that patients feel
short-changed by the scheme. The limit envisaged for the overall limit
of compensation payable is £20,000.
The purpose of the amendment is
to try to establish the rationale for the Government’s decision
to limit compensation for pain and suffering, to discover why the
figure of £20,000 was believed to be the most appropriate, and
to find out how it will be
reviewed.
Mr.
Baron: I remind the Committee that clause 12 attempts to
separate fact finding from fault finding and to establish an
independent and rigorous investigation. On compensation, under the Bill
the offer of compensation from the NHS Litigation Authority is but one
avenue that patients can take at the end of the fact-finding stage. At
that point other avenues are open to them; they can listen to what the
NHSLA has to say, go to resolve-type schemes or to the court outside
the scheme to seek appropriate compensation. That is worth bearing in
mind, although I have some sympathy with the point of the hon.
Lady’s
amendment.
Andy
Burnham: The scheme that the Bill creates is intended to
be a fast-track, out-of-court settlement scheme for clinical negligence
cases. In creating the scheme the Bill preserves some flexibility in
how matters are dealt with in secondary legislation and in taking
forward discussions with stakeholders. It is intended that the redress
scheme will provide for financial compensation to be offered. The hon.
Member for Romsey is right; the policy statement that accompanies the
Bill indicates that the figure will be
£20,000.
12.15
pm Clause 3(5)
requires the scheme to specify an upper financial limit on
compensation. That may be an upper limit on the total financial
compensation that may be included in an offer under the scheme, or an
upper limit on the financial compensation that may be included in an
offer for pain and suffering—what might be termed general
damages. It is our stated intention that
financial compensation offered under the scheme will be broadly
equivalent to the compensation that could be provided in a successful
claim in court. The Bill was amended in another place to clarify that,
and the flexibility allowing for more than one cap was removed.
Further, clause
3(4)(b) gives us the power to
“make provision with respect to
the assessment of the amount of any financial
compensation.” It is
intended that the scheme may provide that a person seeking redress must
be offered general damages for pain and suffering in line with the law
on damages. Special
damages, be they loss of earnings or other costs incurred as a result
of injuries sustained, must be assessed in the light of whether there
is adequate proof of loss and whether they can properly be claimed as
special damages in accordance with the law that governs what types of
loss a claim for special damages can include. The intention is that the
scheme will initially specify an upper limit of £20,000. If a
case is thought to fall just above that threshold, it may be
appropriate for it to be referred to the clinical negligence scheme
trust and resolved outside the NHS redress scheme. The limit will be
reviewed after three years with a view to considering whether it would
be appropriate to alter it or to apply a limit only to the pain and
suffering element. To answer the hon. Lady, we wish to keep our options
open and retain flexibility within the primary legislation to take
either of those options. Either way, it is intended that offers will
remain equivalent to what could have been received through the
courts. This issue
was raised on Second Reading and is perhaps worth revisiting. I do not
believe that there is any incentive in the scheme for NHS bodies
knowingly to make offers lower than what could be achieved by going
through the courts, as that would simply prolong cases and provide
people with incentives to take their cases through the courts. Once an
offer has been made, the patient, or individual eligible for redress,
will be able to have the facts checked through the legal advice
available to them, so financial compensation can be checked
independently. There will be no advantage in knowingly offering less,
because such offers will simply be rejected. That would be
counterproductive to the overall aim of the scheme, which is to get
settlement in as quick, satisfactory and cost-effective a way as
possible. The
amendment would remove the requirement for the scheme to impose an
upper limit, and I would resist that, because it is appropriate for
more complex cases to continue to go through the courts. Fundamentally,
the redress scheme is designed as a fast-track, out-of-court settlement
scheme for cases of low value. We will review its operation three years
after implementation, but we do not consider it appropriate for complex
cases to go through that route.
The hon. Member for Romsey
asked how we arrived at the figure of £20,000. It was reached by
examining low-value legal clinical negligence claims that were settled
by the NHS Litigation Authority in 2002-03 and 2003-04—about
4,090 and 5,690 cases respectively. The cases showed that legal costs
were disproportionately high for claims with a value of up to
£20,000. Cases settled over that limit showed a significant
reduction
proportionately in the percentage costs of legal damages. Our modelling
suggests that an overall upper limit on the amount to be offered under
the scheme strikes a balance between speedy resolution and an effective
saving on legal costs. We believe that it is right that more complex
cases should be dealt with by the courts, in which detailed legal
arguments can be fully
rehearsed. Mr.
Stuart: The Minister said earlier that there would
be no incentive for trusts to offer a lower amount than could be
expected through the courts. That is a little disingenuous: this is a
fast-track scheme, so there would be speed and certainty in the process
whereas the courts have neither speed nor certainty. It would be
rational to expect patients to accept lower amounts than they might
accept in the courts. To what extent has the Minister looked at
incentives, both for the trusts to put in lower offers and for patients
to accept them? I do not think that one can maintain that there is no
incentive to offer a lower amount when in fact it is a fast-track and
certain
process.
Mr.
Burnham: I understand the hon. Gentleman’s point
and, in many ways, the Bill and the scheme that will come from it open
up access to justice for the less articulate, the less wealthy and
those who traditionally would have got fed up and abandoned the process
before they could go through a case. Perhaps, indeed, those are the
people who are less likely to come and speak to an MP. It is precisely
for those people that this scheme is being created. It is important
that there is not a reactive feel to the scheme but that the NHS takes
forward schemes of its own when it realises that there may be a case of
negligence. For these reasons, it is absolutely right that the scheme
should be structured in this
way. The crucial point
comes when people say that this has provided redress and that they have
therefore signed away their ability to take it further through the
legal process. At that point they should be supported with independent
legal advice, and that is what we intend to give them. They will then
be able to make a balanced judgement on the basis of what they are
being offered, the quality of the apology, the depth of the explanation
and the financial compensation, if appropriate. At that point they can
decide whether they feel they have redress and whether they want to
take the matter further. They then have to consider time, frustration
and the problems that cases can cause. People can become very engrossed
and bogged down by these cases, and one of the difficult things at the
moment is that people are forced into that route to get redress, which
is obviously wrong.
People will have to make a
judgment but there would not be an incentive to make an offer that was
of much lower monetary value and, indeed, the independent legal advice
will assist individuals in coming to that judgment.
The Bill provides an element of
flexibility on the issue of a cap within the scheme and whether it
needs to be amended as we gain more understanding of how the scheme
works in practice. It is our policy intention to have a cap of
£20,000 but paragraph (b), which our amendment seeks to remove,
could limit the scheme in an unfortunate way in that it may exclude
individuals
who earn a great deal of money from having redress under the scheme
because the damages may go over the amount of the cap that we have set.
That is why we are creating the two options, so that if it were decided
that many cases with which it would make sense to deal under the scheme
were in fact being ruled out because of the cap on damages, that could
be reviewed at the three-year point. The scheme could be extended to
take in cases that would exceed the £20,000 limit, but where the
damages paid in suffering were beneath that threshold.
Individuals’ personal circumstances will differ, and the level
at which they would require compensation for loss of earnings will
differ greatly according to their particular
professions. The
essence is that we want a scheme that is flexible and that can be
sensibly extended at the three-year point, if the evidence suggests
that there would be good reason for doing so, without our coming back
to primary legislation. That is why the Bill is drafted as it is. There
is nothing underhand about paragraph (b), and we are not seeking to
limit compensation in any way; it simply ensures that all the cases
that could sensibly fall within the ambit of the NHS redress scheme are
able to do so. We continue to say that the most complex, difficult
cases, where much greater sums of damages are involved, should go
through the courts, so that they can be dealt with properly and in
detail. With those words of explanation, I hope that the hon. Lady
feels clearer about our policy intention, and I urge her to withdraw
her
amendment.
Sandra
Gidley: I said that this was a probing amendment to try to
establish Government thinking and put it on record. I am not greatly
wedded to the amendment, so I beg to ask leave to withdraw
it. Amendment, by
leave,
withdrawn. Clause
3 ordered to stand part of the
Bill.
Clause
4Commencement
of proceedings under
scheme
Sandra
Gidley: I beg to move amendment No. 21, in clause 4, page
3, line 34, at end insert ‘provided
that any individual who meets the requirement of a scheme to commence
proceedings shall have the right to bring such
proceedings’.
The
Chairman: With this it will be convenient to discuss the
following amendments: No. 16, in clause 4, page 3, line 40, at end
add— ‘(3) A scheme must make
provision for the commencement of proceedings under the scheme at the
request of an individual seeking redress under the
scheme’. No.
17, in clause 4, page 3, line 40, at end
add— ‘(3) Proceedings under
the scheme will not be commenced without the permission of an
individual who may be the recipient of redress under the
scheme’.
Sandra
Gidley: Amendment No. 21 was tabled because although we
hear a lot these days about a patient-centred NHS, and about the
patient being able to exercise choice, it seems to me from the Bill
that the Secretary of State will decide which patients are eligible to
bring forward the complaints.
It is not at all clear what sort
of restrictions could be put in the way of a patient who seeks to bring
forward a complaint under the scheme. The amendment gives individuals
the right to bring proceedings, and there are no restrictions on that.
I have given some thought to who one might want to restrict, if there
were a problem in the NHS, and the only situation that I could think of
offhand would involve a complainer, not exactly vexatious but with a
history of making complaints against the health service, and who might
have another agenda. Although someone might be annoying and an
irritant, and might come back again and again, there may be an occasion
when that person has a genuine complaint that needs to be looked into.
I find it difficult to understand how the Secretary of State will
restrict who will be eligible, but that provision is clearly in the
Bill, and it could be quite heavy-handed and prevent people from coming
forward. In the amendment, we seek clarification on who will be allowed
to bring forward a complaint, and who will not, because that is just as
important. Amendment
No. 16 gives an NHS patient or their representative the right to seek
redress under the scheme if they feel that they have been harmed by NHS
treatment and meet the eligibility criteria of the scheme. As the Bill
is drafted, the Secretary of State and the scheme authority have the
right to determine who can seek
redress. 12.30
pm It is important
to have transparency. One should also consider other cases in which a
patient could complain but does not want to, or changes their mind. The
NHS could learn lessons from pursuing the complaint in such cases. The
other parts of the scheme—fact-finding and the provision of
reports to establish what has gone wrong and the measures that should
be taken—are important in the greater public interest. However,
there should perhaps be a right not to continue if it is in the
interests of the individual. That is the thinking behind amendment No.
17. I shall leave it for the Minister to provide
clarification.
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