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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 BThursday 15 June 2006[Miss Anne Begg in the Chair]NHS Redress Bill [Lords]9
am Clause 7
ordered to stand part of the Bill.
Clause 8Legal
advice
etc. Mr.
John Baron (Billericay) (Con): I beg to move amendment No.
9, in clause 8, page 5, line 1, leave out paragraph
(a). I put it to the
Committee that subsection (1)(a) is unnecessary. We agree that legal
advice is necessary at the end of the process when advising on the
offer and any subsequent settlement or agreement, but subsection (2)
already provides for that. Accordingly, subsection (1)(a) is otiose.
Indeed, under the clause the Secretary of State could allow lawyers to
be involved in the process from the start.
Lawyers should not be needed,
because assessing liability and compensation under the redress scheme
is an internal matter for the NHSLA. It is separate from the
independent investigation that we envisage. It is an executive process,
not a judicial one. Legal rights are not being asserted or defended.
Liability is internally assessed, not independently determined.
Accordingly, the question of legal representation should not
arise. As the shadow
Secretary of State pointed out on Second Reading, legal aid provides
the oxygen for clinical negligence litigation. It rewards lawyers for
bringing speculative claims, and for complicating them and dragging
them out. It is hardly surprising that that is reflected in publicly
funded clinical negligence litigation, when overcomplicated and
protracted cases have such a dismal success rate. The legal costs too
often exceed or are disproportionate to the compensation at
stake. The
fundamental weakness in making amends, as the Committee has heard, is
that people blame the law when the true culprits are the
lawyers—or their abuse of the legal aid system. That raises
serious questions about the contribution of lawyers, and the value that
they add to the compensation process. Indeed, the Secretary of State
said on Second
Reading: “It
lies absolutely at the heart of the redress scheme that we will be able
to give quicker responses and better compensation to patients, rather
than paying greater fees to lawyers. I am quite certain that lawyers
will argue, as some outside the House have already, that much more
legal advice should be made available all the way through the process.
If we do that, however, we might as well stick with the existing
situation in which people seek legal advice and go to court. Given that
the redress scheme does not rule out the possibility of court action
but will in many cases, I hope, replace it, it is right that the
independent legal advice should come at the end of the
process”.—[Official Report, 5 June 2006; Vol. 447,
c. 33.] In that, the right hon.
Lady was right.
The idea of
the redress scheme is to avoid replicating the problems of the
litigation system. People’s legal rights will be intact under
the scheme, as the scheme does not determine rights. At the end of the
process an offer may be made, in which case we agree that legal advice
should be available on the offer or settlement. If the offer is
accepted, the legal rights are waived as part of the settlement.
However, we agree that legal advice is not necessary during redress
proceedings until an offer has been made. Accordingly, under the
amendment, subsection (2) would stand, but subsection (1)(a) would be
deleted in its entirety.
We have heard
much during our debates about the value of so-called specialist
lawyers. Perhaps we should step back for a moment and consider some
objective measure of their performance. I refer to a letter sent by the
Legal Services Commission on 7 November 2002 to a member of the public.
It stated that, since August 1999, only specialist lawyers have been
able to start new cases on legal aid. In 2000-01, the overall success
rate in clinical negligence cases was 23 per cent. for specialist
lawyers and 24 per cent. for non-specialist lawyers. The success rate
of cases after investigation—after the initial filter—was
56 per cent. for specialist lawyers and 59 per cent. for non-specialist
lawyers. According to a written answer dated 17 January, the overall
success rate, in the last year for which figures are available, was
about 23 per cent in legally aided clinical negligence cases
and 56 per cent. in cases that proceeded beyond
investigation. Those
figures are revealing for two reasons. First, they demonstrate that the
performance of specialist lawyers about five years ago was roughly
comparable with that of non-specialist lawyers. Secondly, they show
that even though legal aid has been available only to specialist
lawyers since 1999, their performance in excluding opportunistic and
unsustainable claims has not improved at all. The Secretary of State
and the shadow Health Secretary are therefore right to be wary of
involving lawyers throughout the process, because they do not appear to
add much value, and their involvement would make the scheme more
costly.
However,
there is another reason why we should be wary of involving lawyers,
other than to advise on the offer at the end of the scheme. Hon.
Members on both sides of the Committee want open, transparent and
non-adversarial proceedings and a fact-finding process that aims to
find out what went wrong and to learn the lessons from it. As we have
discussed, and I know that the Minister will agree, the priority for
patients is often to get an explanation and an apology, where one is
due; they want to ensure that what has happened to them does not happen
to other patients. If we include lawyers at the earlier stages of the
redress scheme, they will assert the rights of the trust or the
patient, and the process will be less open. There will be less chance
of transparent proceedings from which lessons can truly be
learned.
Mr.
Stephen O'Brien (Eddisbury) (Con): As my hon. Friend has
developed his arguments, he has reminded me of a further point, so
perhaps he will forgive me for reinforcing his arguments. As those of
us who have been trained in the law know, one of the essential points
in training professional lawyers is that one must first establish the
facts, secondly establish the law and only thirdly give advice. If the
scheme is a genuine attempt to have fact finding as a priority at the
front end, those involved
will not need to know the law or the legal advice
until the facts have been established, and that is wholly consistent
with the way in which a professional should approach these issues. I
hope that that gives my hon. Friend’s arguments some
reinforcement.
Mr.
Baron: My hon. Friend is obviously right. My worry about
getting lawyers involved at an early stage—at the fact-finding
or, indeed, the fault-finding stage—is that that would not
encourage the open, transparent proceedings that we probably all want.
We want to encourage a culture change in the NHS, but involving
lawyers, who will assert rights for both sides, will not make for
openness. With that in mind, I would encourage the Committee to support
the amendment, and I shall press it when the time
comes. Dr.
John Pugh (Southport) (LD): I shall be
brief, not simply because of events later today, but because much of
the current dispute comes down to differences of philosophy and about
the type of beast that we expect the Bill to be. The issues of detail
that have been picked up simply reflect that fundamental difference.
The Government have said, fairly expressly, that they want the Bill to
remain in its current form and to be the kind of creature that it is
now. I was a little surprised, therefore, when I saw amendment No. 9,
which would remove a paragraph that appeared to enhance the scheme as
the Government understand it. The measure would allow
“for the provision in connection
with proceedings...of legal advice without
charge”, which
most people would assume to be a good thing ordinarily. The official
Opposition’s position is that, through the amendments in the
Lords, they are making an enhanced offer. They are trying to offer us a
superior Bill, which will have merits that the current Bill does not.
If the Government do not accept that substantial improvement, we have
to consider whether the best, in this case, is actually the enemy of
the good. Would we prefer the Bill to proceed, amended in the way that
the Government wish, with this paragraph taken out? If we voted on this
and the paragraph were removed and the Government got their way in
every other respect, would it be a good thing? I do not think that it
would. My concern is
not about the free legal advice, but about what the advice covers.
There are certain issues, which we shall touch on when we come to
amendment No. 22, such as the instruction of medical experts, where
legal advice is a moot issue and the Government may not think that a
scheme should provide that. The question of a person’s
qualification for legal aid if they decide to disown the redress system
or to participate in it also worries me a little. I understand that no
matter how one puts oneself on the redress system, one’s legal
rights in court remain exactly the same. But will the entitlement to
legal aid remain the same? I cannot support the Conservatives’
proposal, although I sympathise with its spirit, simply because I
suspect that at the end of the day the Government will get their way
and the Bill will be worse if this paragraph is taken
out.
The
Minister of State, Department of Health (Andy Burnham):
Amendment No. 9 removes the explicit power in the Bill that allows the
Secretary of State to make such provision in the redress scheme as she
sees fit “for the
provision in connection with the proceedings under the scheme of legal
advice without charge”.
That provision allows legal advice to be
made available to patients at any point under the scheme in addition to
the legal advice that will be available to all patients on the offer
and settlement agreement that is secured under subsection
(2).
The published
statement of policy on the NHS redress scheme makes clear our intention
that legal advice on any offer under the scheme and the terms of any
settlement agreement is to be given without charge. Furthermore, we
have previously made it clear that we intend to work closely with
stakeholders when drafting the secondary legislation to determine the
circumstances in which it may be appropriate to offer legal advice free
of charge at other stages under the
scheme. The purpose of
the clause is to ensure that patients’ rights are protected. We
want to ensure that patients are able to make a genuine, informed
choice when presented with options. This provision seeks to do just
that. Redress is about putting things right for the patient where
mistakes have been made. This has to be focused on their needs. It
means effectively that the scheme must not only provide fair and
effective redress but be seen to do so. On a practical level, patients
will continue to litigate unless they have confidence that the scheme
offers an effective and fair alternative. The clause seeks to provide
that guarantee.
We do not
believe it appropriate in every case for legal advice to be offered
without charge throughout proceedings. To do so would not meet our aim
of reducing unnecessary legal costs. There will, however, be cases or
types of cases in which free legal advice will be warranted at an
earlier stage than when the offer is made. We will work closely with
relevant organisations when drafting the secondary legislation to
determine the circumstances in which it may be appropriate to offer
legal advice free of charge at other stages of the
scheme. One option
that will be discussed during the consultation would be for legal
advice to be provided earlier in more complex cases to enable the joint
instruction of an independent medical expert where appropriate. Access
to legal advice is essential for two reasons: first, to obtain an
independent legal opinion on the level of financial compensation
offered and secondly, because it is intended that where an offer under
the redress scheme is accepted, the recipient will waive their right to
bring civil proceedings in respect of the same matter. However, there
may be others and clause 9(1)(a) allows for
that. We believe that
if the redress scheme is to offer patients a credible alternative to
litigation it has to have their full trust. We therefore believe that
it is appropriate for the Secretary of State to be under an obligation
to provide for free legal advice in respect of offers and settlement
agreements in all cases, for the scheme to provide flexibility and for
the provision of legal advice earlier in the process where appropriate.
Indeed, my hon. Friend the Member for Birmingham, Erdington (Mr. Simon)
pressed me on that point only the other day. As the hon. Member for
Southport(Dr. Pugh) says, most patients would consider the
provision to be a good thing. The Government are committed to
protecting patients’ rights and to ensuring that they are
supported effectively through
the
process of obtaining redress. This provision plays a key role in
ensuring that that objective is
met. 9.15
am
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