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Session 2005 - 06 Publications on the internet Standing Committee Debates NHS Redress Bill [Lords] |
NHS Redress Bill [Lords] |
The Committee consisted of the following Members:John Benger, Alan Sandall,
Committee Clerks † attended
the Committee Standing Committee BTuesday 13 June 2006(Afternoon)[Miss Anne Begg in the Chair]NHS Redress Bill [Lords]4
pm
Clause 6Proceedings
under
scheme
The
Minister of State, Department of Health(Andy
Burnham): I beg to move amendment No. 1, in clause 6, page
4, line 13, leave out from ‘scheme' to end of line
15.
The
Chairman: With this it will be convenient to discuss the
following: amendment No. 8, in clause 6, page 4, line 15, leave out
‘tort' and insert ‘law,
whether civil or
criminal'. Government
amendment No.
2 Amendment No. 19, in
clause 6, page 4, line 23, at end
insert— ‘(h) for independent
assessment of the eligibility ofcases for redress under the
scheme in specified
circumstances'. Government
amendment No. 5 Clause
12 stand
part.
Andy
Burnham: It is somewhat fresher than it was this morning,
but perhaps our discussion will generate some heat because we have hit
the part of the Bill that relates to the substance of the disagreement
on Second Reading. We have genuine differences over the way in which
the scheme should be structured and the type of scheme that we are
trying to create. My
amendments restore powers to enable a redress scheme to be established
with the structure originally intended by the Government and reverse
amendments made in the other place. Clauses 6 and 11, as amended there,
would separate the fact-finding investigation under the redress scheme
from the assessment of liability and quantum. The scheme authority
would have no role in the investigation and provide no guidance or
advice to scheme members about investigations. The opportunity to have
a unified scheme would be lost.
Amendment No. 8, which was
tabled by the hon. Member for Billericay (Mr. Baron), is even more
clearly intended to confine investigation under the redress scheme to a
fact-finding investigation, preventing consideration of issues of
liability in law, both civil and criminal, rather than issues of tort
alone. The amendment is in keeping with the amendments made in another
place and entrenches the separation, rigidly splitting the
scheme.
The main matter before us is
clause 12, and I draw the Committee’s attention to amendment No.
6, which would delete it. It is important to spend some time on that to
understand why the Government seek to remove the clause and restore the
scheme to its original envisaged structure.
Clause 12 requires the
Secretary of State to make provision for the appointment of patient
redress investigators and for the Healthcare Commission to maintain a
list of investigators and oversee them. The amendments made in the
other place seem to intend that a panel of patient redress
investigators should be created, but that is not specifically laid out
in the clause. Indeed, it does not answer many other questions, and I
urge the hon. Gentleman to give us some of the detail of the scheme
envisaged. How many patient redress investigators do the Opposition
have in mind? Who will they be? How will they go about investigating
the facts? Who will pay their wages? Those are serious questions, and
those who advocate the structure in clause 12 need to put the
detailsbefore us.
There are several serious
problems with the clause, not least that it adds an additional layer of
bureaucracy and works against a primary aim of the Bill, which is to
encourage and facilitate local learning.
Mr.
John Baron (Billericay) (Con): Let us start our debate by
discussing the Government’s line that we are adding to
bureaucracy. Nothing could be further from the truth. We are accepting
the structures that are in place. All we are doing is trying to
simplify process by separating fact finding from fault finding. That is
not adding to bureaucracy. The bureaucracy would have to exist anyway
under the scheme as the Government would like it to be. All we are
saying is that there should be an independent person at the top to
guarantee its independence. That is not adding to
bureaucracy.
Andy
Burnham: I hope that the hon. Gentleman will develop that
train of thought, because I do not believe it possible to say that the
proposal will not increase bureaucracy. We have in mind a single,
unified scheme whereby the NHS can provide a fast-track settlement
system out of court, so that redress can be provided to individuals who
seek it for harm done in the course of their health care.
Clause 12 and the related
amendments seek to create a split in that scheme, in that an army of
investigators would be accountable to the Healthcare Commission, and,
separately, the NHS Litigation Authority would examine the findings of
their work and be responsible for them. Will the hon. Gentleman tell me
in clear terms how those proposals do not add a layer and a brake in
the scheme? I would be grateful if he explained. As far as I can see,
they clearly do.
Mr.
Baron: The Minister must accept that his scheme, as
envisaged, is a two-stage scheme anyway. According to the Secretary of
State on Second Reading, the trust will first investigate the facts,
then pass the case to the NHS Litigation Authority for assessment of
liability. Even within the Government’s scheme, there is a
two-stage process.
All we are saying is that we
want a one-stage process. We want the fact-finding stage only, to
ensure that lessons learned are not lost in the system and the national
health service. Fault finding can be determined by the NHS Litigation
Authority—that option exists—or the patient can go
elsewhere to a resolve-type scheme and so on. The bottom line is that
the Government scheme, as presently constituted, involves a two-stage
process anyway, as confirmed by the Secretary of State on Second
Reading.
Andy
Burnham: I do not disagree with that point. The hon.
Gentleman and his colleagues have made great play of the point about
separating fact finding from fault finding. The scheme, as envisaged,
has a separation between those two functions, in that an investigation
will be carried out at local level by the organisation concerned, which
would be followed by decisions on liability, taken by the scheme
authority, and subsequently on quantum, if relevant, on the basis of
the facts of the investigation. There is some separation of functions,
but within the structure of a unified, single scheme.
Let us be clear that a
significant number of investigators would be required if they were to
be able to investigate the volume of complaints made. Last week, I
answered a parliamentary question from the hon. Member for Hornsey and
Wood Green (Lynne Featherstone), and the number of complaints handled
every year by trusts was detailed trust by trust. The volume is huge,
and the data will be provided to Committee members for reference. We
would be talking about an enormous volume of work, should that be
passed to an independent body of investigators.
The hon. Gentleman
proposes that the investigators should be accountable for their work
and overseen by the Healthcare Commission. That is separation between
their function and the assessment of liability and quantum by the NHS
Litigation Authority.
Mr.
Baron: The Minister talks about a massive increase in the
number of investigators, but fails to recognise that the apparatus,
structure and administration are already in place. All we suggest is
that at the top we have one person, an NHS redress investigator, who is
truly independent and oversees the fact-finding stage. In other words,
we are simplifying the process. I do not think it can be claimed that
we are adding to bureaucracy or cost because, in essence, we are
changing one person at the top to ensure the independence of the
investigation. I think that the Government have misunderstood our
proposals.
Andy
Burnham: Maybe, and it is for the hon. Gentleman to
convince me that we have not. Clause 12, which we did not want, talks
not about a single investigator who is responsible for the scheme but
about investigators:
“The Secretary of State
shall by order make provision for the appointment of suitably qualified
patient redress investigators who shall have conduct of the
investigation of the facts of cases in accordance with section
6(2)(a).” I take that to
mean that those people will be permanently employed in that role. If
they are to be independent, is the hon. Gentleman saying that they
cannot be employees of the organisation of which they
are investigating a complaint? He has not risen to correct me, but
clearly if he is saying that investigators have to be independent, it
follows that they would not be employed by the organisation. That will
give rise to all kinds of cost and
bureaucracy.
Andy
Burnham: The hon. Gentleman asks why, but his hon. Friend
the Member for Billericay said the investigations are already being
done and that things are already in place. It is not so. There is not
an independent patient redress investigator assigned to each trust or
region of the country; they do not exist. The function to be created
under clause 12 will add cost. On Second Reading either the hon. Member
for Beverley and Holderness (Mr. Stuart) or one of his hon. Friends
talked about suitably medically qualified patient redress
investigators. If he could explain how and where that is replicated in
the current system, I would be interested. Comparisons were drawn with
the coroner system, no less. The Opposition are not proposing something
that replicates, reassigns or repackages what happens at a local level
but an extremely different scheme. I would be interested to know how
the hon. Member for Billericay feels that I am wrong in drawing that
conclusion.
Mr.
Baron: The Minister raised two issues. The first was about
clause 12(1) and its mention of “investigators”.
Obviously, we cannot have just one investigator in the whole country to
determine such issues. A number of investigators around the country
will fulfil the role, but it will result in only one investigator per
scheme. That brings me to the Minister’s point about cost. We
must not forget that the cost is not additional but inevitable, since
there has to be an investigation whether it is carried out by the NHS
Litigation Authority, the trust or independent investigators. The cost
is established, but the question is who sits at the top and who
oversees the fact-finding stage. We suggest that NHS redress
investigators are at the top, independently chosen and independent by
nature, to ensure that the scheme is given independence.
The structure exists anyway,
and the redress scheme has an inevitable cost. There has to be an
investigation, and it is merely a question of who sits at the
top. 4.15
pm
Andy
Burnham: The hon. Gentleman is merely confirming that
neither he nor his Friends in another place have thought the scheme
through. The terms of clause 12 suggest that all cases would be
investigated by a patient redress investigator who lays out clearly
that they shall have conduct of the investigation of fact in accordance
with clause 12 (2)(a), which says that a patient redress investigator
shall “conduct the
investigation of the facts of a case in accordance with the rules of
natural justice; and... produce a report on the principal findings
of the investigation.” I
cannot understand how one or two investigators in a region could do
that for every case. The hon.
Gentleman also said the proposal was not additional, but it clearly is.
He just said that these people would be put in place in a particular
region to carry out a particular contract.
The major objection is not to
the cost. The proposal envisages a very different scheme from the one
we have in mind. It would replicate in the NHS redress scheme the style
of investigation carried out under the legal process, but the whole
point of the scheme is to create a breathing space; a period in which
the NHS can face up to its failings and make appropriate redress. The
hon. Gentleman’s proposal would create a substantially different
scheme that does the same job that would now follow from the legal
process. Mr.
Siôn Simon (Birmingham, Erdington) (Lab): I do not
know what point my hon. Friend has reached in his remarks and how much
else he will go on to say, but it is worth making the point that he has
chosen to focus on clause 12 as the substance of the issue. Lots of
outside organisations have taken an interest. It does not seem to me
that clause 12, or the Tory scheme, is the substance of the issue at
all. The Tory scheme seems at best to be a distraction, and probably
most realistically a rather opportunistic and ultimately irrelevant
separate scheme for the sake of having a separate scheme.
The substance of the issue is
how we can best amend a very good Bill, going with the grain of some
very progressive developments, by introducing an element of
independence. Unlike the Tories, I do not mean a whole army of
investigators. I mean some sort of jointly instructed medical expert
who is independent. I will come on to that should I catch your eye
later,Miss Begg. Opposition Members may mean all kinds of
things by independent schemes but I do not think very many people take
this seriously and I urge the Minister to not get too bothered about
it.
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