Andy
Burnham: Again, that is a good question. I do not have the
figures directly to hand, but maybe help will come soon. We anticipate
an increase in the number of cases, as we have clearly said. One of the
main attractions of the scheme to me is that it opens up the
possibility of redress to people who at present might not even initiate
proceedings or, were proceedings initiated, would not think that they
had the will and the wherewithal to see them through to the bitter end,
which is often a long time down the path. I have in mind those of our
constituents who are less articulate or less wealthy, and the scheme
opens up the possibility of more cases coming forward. My predecessor
said that we were relaxed about that, and that is the right way to put
it. Part of the logic is to spend less on the wasteful costs of
pursuing cases all the way when 43 per cent. are abandoned out of
court, and to channel the cost of those out-of-court settlements
earlier to provide a scheme that provides something for a lot more
people. That is the nub of the point and the hon. Gentleman is right to
raise it.
Mr.
Stuart: Might I press the Minister on that point? He said
that he would welcome many more cases. Can he give us some idea of the
quantum? If the number of cases increase tenfold, that would be a lot
more people whom the scheme and managers of the trusts recognise as
having a problem. Would that be a good thing? To clarify, part of the
reason for the programme is to reduce legal costs. Could he be specific
about whether he expects the costs to reduce in overall quantum or that
a lower amount of the overall amount spent on redress in the NHS will
go on them? If the Minister is right and there is, to use my
hypothetical number, a tenfold increase in the number of cases, would
he not accept that the legal costs to the NHS will rise greatly, even
if they reduce on each individual case? That has the potential to have
a serious financial impact on the NHS, so it would be appropriate if
the Minister could give us a clearer view of what the Government
expect.
Andy
Burnham: Help has arrived, I am pleased to say. The
modelling of patient survey data carried out by the Department suggests
that an improved scheme of this kind might see claims rise by anything
from 2,200 to 19,500 a year. I accept that that is a broad range, but
the number could increase significantly. We expect between 5,800 and
16,600 cases to be covered by the scheme in year one. It is impossible
to say how many will come forward, and it would be wrong to say that
there will be a certain number—who is to say what will be an
accurate judgment?—so we have given a range of cases, and a
range of the costs that that is likely to produce.
The point that I was going to
make to the hon. Member for Ruislip-Northwood was that the scheme will
be reviewed after three years, at which time we will want to see how
many extra cases have come forward and how much extra has been spent on
legal costs. If the scheme is conducted in the intended spirit, it
should
not be necessary to incur legal costs in the early
stages of the process. It should be possible for such costs to be
seriously reduced. That is an important aspect of the
scheme. Mr.
Stuart: I welcome the Minister’s explanation. I
believe that he said in an earlier sitting that trusts will be expected
to initiate their own investigations in cases in which they feel that
something has gone wrong. I wonder again about the idea of a quantum if
the NHS changes, ceases to be defensive and automatically investigates
untoward incidents. Given that I have heard from other sources that
there is the potential for hundreds of thousands of such cases to
happen in a year—something might go wrong at some level in one
in 20 of all operations in hospitals—that could be an enormous
open-ended commitment. Can the Minister comment on that? How often does
he anticipate trusts triggering investigations in cases that, at the
moment, they would tend to close down unless the patient were
particularly insistent?
Andy
Burnham: In response to a parliamentary question, I made
available the numbers of clinical negligence cases trust by trust. I
shall make sure that the hon. Gentleman has that information, because
it will probably answer his question. To answer the broader point, we
are attempting to make a serious culture change. I shall not name them,
but I have seen instances in the public sector in which, because of a
culture of inability to own up to mistakes, cases have been put into
the legal process—letting them grind, grind away and
elongate—as a way of putting off an uncomfortable situation.
That has often been used as a way of managing problems but it can,
clearly, be very wasteful of public resources; authorities can end up
paying more than they would have done otherwise. As I said to the hon.
Member for Billericay, I do not think that most people are motivated by
a desire to take the system to the cleaners. However, because they do
not get a proper response when they initiate something, they might take
the process to the end point because they think, “They may learn
the lesson if I win my case; then they won’t do it to somebody
else.” They have been pushed into a very adversarial process. We
are trying to do something different.
I do not think that there will
be hundreds of thousands of new cases. The Department’s
estimates suggest that we will make a saving on legal costs of up to
£7.6 million a year. Bear in mind that we are talking about
cases in which the claims are for less than £20,000, so we
expect there to be a saving. However, the hon. Member for Beverley and
Holderness (Mr. Stuart) is right that more cases could come forward.
The Department’s modelling suggests that the NHS overall could
go from a £7 million saving to a £48 million cost because
of the scheme. It is likely that there will be a cost, given that we
expect the scheme to work in the way that we want it to. I just do not
know whether that cost will be as high as has been
suggested.
9.45
am
Mr.
O'Brien: I am grateful to the Minister. He is being very
generous about interventions. He kindly said that he would reflect on
some of the points that I raised earlier and consider whether some more
felicitous wording might be thought about before Report stage. It is a
staggering statistic that 43 per cent.
of cases settle out of court. When he is considering
this issue with advisers, and perhaps taking advice from others who are
not in the legal profession, he should perhaps consider how much that
is driven by contingent fees. It is quite satisfactory, from a
lawyer’s point of view, to advise a client that their case is
worth a go because there is a settlement value, when they know full
well that it will not sustain all the way to court. In order to make
sure that the process is both cost-effective and rights-effective, the
Minister might want to reflect how much is possibly falsely directed
because it is worth while to have a go for a
settlement.
Andy
Burnham: The hon. Gentleman makes an important point,
which has been raised with me by a constituent who is pursuing a
long-running case in which his son died while under the care of a
mental health trust. He explained to me that the case had been going
for a long time, but might never get to court. What he said was new to
me. He explained that often, at the end-point, there is a greater
incentive to settle out of court than to take the case to court.
Perhaps that is good in some ways, in that it saves the cost of court
proceedings, so there will be some savings. However, it leaves the
patient in an unsatisfactory position in that there are interests
working against their interests at that point. Having reached that
point, people want their day in court—or some do. They want to
give voice to and vent the frustrations that they have felt during the
process. When the case finally gets to court and they are told,
“I think you should really settle out of court”, it is
deeply unsatisfactory for patients all round. The hon. Gentleman is
right to raise this point. If what my constituent has told me is the
case, and there is good reason to think that it is, that is another
unsatisfactory facet of the system. I would welcome political agreement
that that should not be the
case. I want to pick
up on an important point made by the hon. Member for Southport about
legal aid. Obviously, if redress is not possible under the scheme,
people will retain their rights to go through the courts. It will be
possible for some patients in that position to apply for legal aid in
the same way as now—the Legal Services Commission makes
decisions on a case-by-case basis on whether to award funding, as not
everyone is
eligible. In
“Making Amends”, the chief medical officer recommended
that the LSC should be able to take into account whether someone had
used the NHS redress scheme when making a decision on an application
for legal aid. We support that recommendation, as do the Department for
Constitutional Affairs and the LSC, because it supports the overall
aims of legal aid by ensuring that funding is awarded in the right
cases and that people are expected to explore other ways of getting
redress before turning to the courts. There will be no blanket ban on
legal aid for clinical negligence cases, and decisions will continue to
be made on a case-by-case basis. It is reasonable for the guardians of
the funds to consider whether the redress scheme was used and what
conclusion it
reached.
Dr.
Pugh: The Minister is confirming what I thought. If
somebody has no confidence in the NHS redress scheme and decides that
they wish to go to court because of what they have heard about the
scheme, and they require legal aid, their situation is technically
worse, in legal terms, is it not?
Andy
Burnham: I do not believe so, because they will have gone
through the NHS redress process and benefited considerably from doing
so, through the disclosure of information and the investigation of the
facts. If there is a genuine grievance, the process will apply as it
does now. Deserving cases will be taken forward, and there is no bar to
that happening. However, given that we want a test of whether a case is
meritorious or has potential to go forward, it is entirely reasonable
for those making the decisions to consider what happened under the NHS
redress scheme.
Dr.
Pugh: If there were a complaints procedure, as there
currently is in most hospitals, but somebody decided to sidestep it in
order to take a case to court and then sought legal aid, would those
considering the case for legal aid ask them to go back and consider the
hospital’s complaints procedure first, before moving
forward?
Andy
Burnham: I might have to write to the hon. Gentleman on
some of the details, but I understand that, under the principles of the
current system, people will want to see evidence that attempts have
been made at resolution before an application for legal aid is made. It
is for the applicant to explain how they felt the system either did not
represent their interests or was not fair to their case, which would
then be relevant information for the awarders of legal aid to consider.
I will come back with more detail for the hon. Gentleman on that, but
the point of principle is that there should be no blanket ban on people
applying for legal aid; indeed, quite the
opposite.
Mr.
Baron: Before the Minister concludes his remarks, may I
return to an earlier exchange with my hon. Friend the Member for
Eddisbury? The more we involve lawyers in the scheme, the more we
replicate the court system, which the redress system is designed to
replace. The Minister has agreed that the redress scheme does not
determine rights, so why does he think that those rights need to be
protected by
lawyers?
Andy
Burnham: As the hon. Gentleman has heard me say, we do not
intend to replicate the current process via a Government scheme. It
would be very odd to enshrine what is bad about the current system in a
formal scheme. The purpose of the clause is to give the scheme member
and the Litigation Authority the flexibility to move the scheme on in a
particular case, and a mechanism that allows them to do
that. My point about
rights is that the scheme is not judge and jury. A judge deals with
somebody’s rights and dispenses with them, in the sense that he
decides whether those rights are invoked and whether people can claim
them. That is what happens in a legal process. However, we are saying
that if the offer of redress is not accepted at the end of the NHS
redress scheme, the legal right is not dispensed with. Making the
scheme judge and jury would mean that the wall would come down and
people would be left with nowhere else to go. However, they do have
somewhere else to go.
Mr.
Baron: I take that point, but if the redress scheme does
not determine rights—the Minister has just agreed with
that—why do they need to be protected by
lawyers?
Andy
Burnham: The scheme is an attempt to make a reasonable
offer. It is an out-of-court, fast-track settlement system, not a legal
process. We considered whether to apply a different test for
eligibility, but to give clarity it was felt that the test in the end
should be liability in tort. Therefore, to give clarity at the end of
the scheme—whether or not the offer being made is comparable
with what would have been achieved in the courts—there is a need
to offer independent legal advice. As I said earlier, the aim is to
import into the scheme an element of independent authority, so that
people can move forward with confidence. The scheme is not designed to
replicate the unfairnesses and weaknesses of the current system. It is
to provide greater flexibility and confidence that the result that the
scheme comes up with is a good one and one that people should accept.
If the scheme did not have certainty at the end point, it might be
doomed to failure, in that word would get out that people should not go
down the NHS redress scheme route, because they would not get full
redress under it. A guarantee of proper redress is needed, and this
measure is intended to give patients confidence in that
regard. This has been
quite a good debate. I am grateful to Opposition Members for the points
that they have made. They have helped me to explain more of the
Government’s intentions. I am sure that we shall return to these
matters on Report. I do not believe that more felicitous wording, to
use the words of the hon. Member for Eddisbury, is needed, but I do not
set my face against that. I believe that the Bill as it stands is good.
It gives us the flexibility to deal with cases properly but, as I said,
I am sure that we shall return to these matters on Report, and I will
reflect on them before then. In saying that, I ask the hon. Member for
Billericay to withdraw the
amendment. Question
put, That the amendment be
made:— The
Committee divided: Ayes 5, Noes
9.
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