Mr.
Baron: My essential point was that in large part we are
keeping the lawyers out, because of the simple fact that we are not
trying to determine liability as well as establish the facts. In the
Government’s scheme, the lawyers would be far more involved,
which would account for some of the additional costs that I think it
would incur. We would not try to determine liability, so we would
largely keep lawyers out of this system.
Andy
Burnham: That makes the point that I was just discussing.
The hon. Gentleman claims that lawyers
would largely be kept out of the system. Let us accept that he is
genuine in having said all afternoon that we need a scheme based around
patients and protecting their interests. Given that, in our view it is
right that legal advice should be available to protect the interests of
individuals at the point at which they accept redress or
not. It is crucial
that the Opposition understand that the scheme is meant to be part of a
coherent whole. The hon. Gentleman seems to have in mind a situation
where elements can be packaged off and separated from each other. We
clearly have a difference of view about how this thing should be
organised. I remain convinced that our proposals are the right
ones. I shall pick up
on the points made by my hon. Friend the Member for Birmingham,
Erdington. He was right to focus on amendment No. 19, because perhaps,
in all the argy-bargy on clause 12, we did not do it justice. I
carefully examined the wording of the amendment as he was making his
appeal that we needed to look more sympathetically at it. As I
understand it—the hon. Member for Romsey may want to come back
on this point—it would allow independent assessment of whether a
case was eligible. It says that that judgment should be independent,
rather than being taken by the NHS Litigation Authority. I have said
that we intend that legal advice will be available on the offer and, in
other circumstances, could be provided at an earlier stage. Clause
8(1)(a) allows legal advice to be provided at any point, and we intend
to consult on when it would be appropriate, earlier in the process, to
make such advice
available. Clause
8(1)(b) allows for the involvement of jointly instructed independent
medical experts. That picks up on my hon. Friend’s point. Again,
we will consult on when such experts will be engaged. There is room for
discussion with my hon. Friend about how and when the provisions in the
Bill will be used by the scheme in practice. I will be ready to carry
on that discussion with him and the organisation that he represents so
well. That offer exists and is genuine. In saying that, I have to say
that we envisage that the reports that the experts produce will be
intended to help the NHS Litigation Authority to reach a view on
liability. That work will inform its deliberations on the final
outcome. I think that
amendment No. 19 envisages something different: an independent expert
or an independently appointed individual making the judgment on whether
or not liability arises. That would be a different scheme. This is the
NHS redress scheme. We seem to be struggling to get that point over. It
is a scheme of the NHS itself. It is seeking to offer a way of doing
things that is better than what it does at
present. The point
that Opposition Members have missed is that, in any redress procedure
against any organisation, public or private sector, the normal process
is that a person takes their complaint first to the organisation that
they believe mishandled their care or the other service provided to
them. That is the normal process that someone goes through before going
on to a second-stage process involving more independence. The point
about this scheme is that, in the first-stage process, when someone
goes to the national health service with a grievance or complaint, they
are asking it to do a comprehensive job of investigating the complaint,
explaining what happened, apologising for
it and making financial reparation if need be. We are talking about a
much better job being done at that first stage of the process than is
done at present. That is the crux of the
Bill. Sandra
Gidley: Perhaps the amendment was not as clearly drafted
as it might have been. I had envisaged it as a stop-gap or safety net
so that if there were a dispute as to whether a case would be taken
forward, there would be provision for an independent opinion. That
would apply not in every case but in specified cases in which perhaps
there was a lack of
clarity.
Andy
Burnham: That is a reasonable point. The answer is that
this is an in-house scheme, in effect, and that decision will be made
by the Litigation Authority, but the decision can be informed by
independent advice or evidence that is jointly commissioned by the
complainant and the NHS. That scheme is slightly different from what we
have at present, but it is still an NHS scheme. It does not sign away
the ability of any patient to go on to pursue their rights through
other means, so it is wrong to use the phrase “judge and
jury”, because in that case those rights would have been ruled
upon and then disposed of and that is not what the scheme does. An
offer is made based on assumptions about whether a liability has
arisen. The phrase “judge and jury” does not apply. We
are talking simply about an ability to provide redress before the legal
system has to be
invoked. Let me deal
with a couple of points quickly, because I know that the Committee
would like to make progress. On the without prejudice question, only
the offer may be without prejudice. The patient can take the
explanation or investigation report and use it in court should legal
proceedings follow an unsuccessful attempt to use the NHS redress
scheme. We intend to consult on whether investigation reports will be
disclosed, but I stress that the use of that material is not ruled out
by the scheme, and I do not think that anybody would want that to be
the case. The hon.
Member for Beverley and Holderness raised a number of times the
position of the Law Society. That is important; we should have its view
on record. In its written evidence to the Constitutional Affairs
Committee, it said clearly that it supported the proposed
scheme, “providing there
is sufficient access to free legal advice for victims”
and that the right to go to court was not
compromised. While the Bill is light on the detail of the scheme, it
said, those requirements appeared to have been met, subject to
clarification of some areas as the Bill passes through its later
stages.
Mr.
Stuart: I believe that, in its submission for today, the
Law Society supported clause 12. Is that the Minister’s
understanding?
Andy
Burnham: I have provided an accurate quote from the
evidence provided by the Law Society. It mentions two tests: free legal
advice and the right to court not being compromised. It was right to
set those tests, and I challenge any Opposition member to
suggest that anything in the Bill does not meet either of them. It is
important to have that view on the record.
Let me make some quick points
in closing. In response to the hon. Member for Billericay, I would
argue that the patient is not materially disadvantaged by taking a
claim forward under the scheme and then finding that the scheme has not
been able to deliver redress. Yes, there is a time delay in that
process, but all the patient’s rights to take a claim beyond the
NHS redress scheme remain. Most patients would find that before they
took action under the current system they would spend time in
correspondence, negotiation and discussion with the trust. The
individual is not materially disadvantaged by the scheme as it is
envisaged.
Mr.
Baron: I have asked this question once, but the Minister
moved on. Perhaps he can give us an answer now. I take on board his
point that patients still have the right to go to court if they are not
happy. However, as I said before, given that the point behind the
redress scheme is to provide an alternative to going to court, does he
not think that it would be absurd if the key to the success of the
alternative were a right to appeal to the original? That does not make
sense, yet the Minister seems to be using the right to carry on as an
alternative to going to court as somehow justifying his view that the
redress scheme will be happily in
operation.
7.15
pm
Andy
Burnham: Perhaps, again, this is where we have a
fundamental disagreement, or do not understand each other. We would
argue that it is the right to go to court that puts pressure on the NHS
redress scheme to be a success. The fact that that right is not
compromised, the process can continue and a case can go to court
ensures that there is not—as Opposition Members have been
claiming all afternoon—an incentive in the system not to
investigate independently or fairly and not to provide fair redress at
the end of the process. Because that end stage is still there and can
be invoked by the individual, it creates the necessary pressure earlier
on for the NHS redress scheme to be a
success.
Mr.
Baron: If that is the case, does the Minister accept that
the scheme being envisaged by the Government will create an atmosphere
in which there will be no down side for anybody deciding to have a go?
It will be cost-free and the costs will be covered if the decision goes
against the patient. Where is the discipline in the scheme? It will be
a risk-free attempt to have a go, at the expense of the
NHS.
Andy
Burnham: I agreed with the hon. Gentleman earlier that
most people do not want to have a go at the NHS and that most do not
want to make an opportunistic claim to take it to the cleaners. That is
not what motivates most people. If people do make opportunistic claims,
they will be stopped at an early stage, so I do not accept that that is
a problem with the scheme. The scheme that he envisages would
make
that more of a problem, because if a frivolousor opportunistic
claim had to be independently investigated by a patient redress
investigator, that might create more cost. Under the scheme that we
propose, if claims clearly do not have a basis in law and there is no
liability, they will be safely preventable. If the individual concerned
wishes to pursue legal action they will be able to do so. I do not
believe that that is a weakness in the scheme. Only genuine claims will
be compensated and get to the final stage when legal advice will be
provided. I say to my
hon. Friend the Member for Birmingham, Erdington and the hon. Member
for Romsey that we may not have paid sufficient attention to the role
that the Independent Complaints Advocacy Service can play throughout
the process and currently plays in supporting patients as they navigate
the complex world of the NHS complaints system and the litigation
process. ICAS is a patient-centred service, delivering support ranging
from information on self-help to the assignment of an advocate to
assist individuals with letter-writing, form-filling and attendance at
meetings. There is a lot of evidence to suggest that the services
provided by ICAS are much valued and appreciated by patients. The
Department had some research on ICAS done by MORI, and one example
uncovered was that of an individual who
said: “It
offered good advice. I felt I had someone on my
side.” ICAS services will
work alongside the redress scheme to help people work their way through
it and to provide some of the independence that my hon. Friend the
Member for Birmingham, Erdington and the hon. Member for Romsey
want. I do not want to
prolong our discussions, but I shall finish on a partisan note. My hon.
Friend the Member for Amber Valley (Judy Mallaber) put some pertinent
questions to the hon. Member for Billericay about how many patient
redress investigators there would be, who would employ them and what
they would do. We did not get answers to those questions. It is
impossible for the Government even to consider accepting such a scheme
when there is no detail to support it. [Interruption.] I
say to the hon. Member for Eddisbury, whom I hear chuntering away, that
in the absence of such detail, the Department must make its own
calculations of the cost implications of the proposal that the
Opposition are putting
forward.
Mr.
O'Brien: Publish
them.
Andy
Burnham: I am happy to do
so. It would be deeply
irresponsible for the Department of Health to accept a scheme without
seeking to determine and bottom out its costs. I have given the hon.
Gentleman the range within which we anticipate that the cost would
fall—£14 million to £41 million. Unless he
provides further detail, we cannot do any more. That is why we seek to
amend the Bill. I say to the hon. Member for Romsey that I appreciate
the intent behind amendment No. 19, which is motivated by a genuine
point. But again, it is an NHS scheme and it would not be right for
ultimate adjudication to rest in independent hands; it should rest with
the NHS.
Question put, That the
amendment be made:—
The
Committee divided: Ayes 9, Noes
6.
Division
No.
1]
Question
accordingly agreed to.
Amendment proposed: No.
2, in clause 6, page 4,line 17, leave out paragraph
(c).—[Andy
Burnham.] Question
put, That the amendment be
made:— The
Committee divided: Ayes 9, Noes
6.
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