|
Division
No.
4] Question
accordingly negatived.
Dr.
Pugh: I beg to move amendment No. 23, in clause 8, page 5,
line 9, at end insert— ‘(c)
the joint instruction by those seeking redress and the scheme
authorities of medical
experts.'. This
would be a fairly innocuous change. Clause 8(1) already provides for
the possibility of legal advice
being provided during the proceedings and a medical
expert’s services being commissioned. The Minister has confirmed
that medical experts, where instructed, would be jointly instructed. It
is imperative for any meaningful joint instruction of a medical expert
that the patient has specialist legal representation. It would not be
reasonable to expect a lay person to instruct a medical expert on such
complex issues. The
proposal is in line with the general cultural tone that the Government
have tried to set. I am referring to allowing the NHS to own the scheme
and to make whatever changes it sees fit to instil confidence in the
scheme. The mechanism as envisaged would apply only to cases that had
not already been resolved proactively by the scheme and cases in which
patients felt that redress should be offered but the scheme authority
did not agree. Based
on information provided by the NHS and by the patient’s adviser,
the medical expert would assess eligibility for redress, and the scheme
authority would follow the findings of the medical expert. This would
introduce an element of independence into the scheme and, more
important, independence over the issue of eligibility. Without the
availability of this mechanism, dissatisfied patients are more likely
to go to the courts and the resulting costs are more likely to be a
great deal higher.—[Interruption.] I do not know what
electronic gadgets hon. Members have on them that make strange noises
unexpectedly. Normally, when one proposes amendments such as these, the
Government suggest that, as they would be very
expensive—
The
Chairman: Order. I will suspend the Committee while we
find out what is making the
noise. 10
am Sitting
suspended. 10.1
am On
resuming—
Dr.
Pugh: Normally, the Government say that such amendments
would be horrendously expensive to implement, and they do the exotic
modelling that they seem so good at, which adds appreciable cost to
it.
It is nice
that in this case it is not a purely hypothetical amendment. What is
being proposed reflects very much the resolve schemes that are
currently being piloted and the speedy resolution scheme in Wales. It
is perfectly possible to quantify their effects and to see that in many
cases they save litigation costs.
However, if
the empirical argument for the pilots was not good enough, there does
not seem a great deal that the NHS can lose if the amendment is
accepted. If the Government are correct, the NHS will recognise its own
errors and offer suitable redress anyway. Unmeritorious cases are
likely to be screened out first by the specialist advice and certainly
by the lawyers, because under the resolve schemes, they are paid a
relatively modest fee only if they are successful. If the medical
report is not favourable, there is no compensation to the patient or
fee for the solicitor.
Given that background of
experience and the fact that the proposal is not out of kilter with the
thrust of the Government’s suggestions, there should be no
principal objection to the amendment.
Mr.
Siôn Simon (Birmingham, Erdington) (Lab): I
understand that the Bill already includes Government amendments made in
the other place which are similar to those we are discussing, which
provide for the possibility of making the suggested type of
arrangement. I am not sure whether this amendment is the best way of
introducing what I would like to see, which is a slight strengthening
of the Bill, so that if this stage of the proceedings is reached
without the mainstream scheme having produced a resolution, the
presumption would be to proceed to a resolve or speedy resolution-type
joint instruction. I have spoken to the Minister about the matter
outside the Committee and I hope that between now and Report some
wording can be found for an amendment that will give the Bill slightly
more strength.
Mr.
Baron: I can see exactly where the amendment is coming
from and I have some sympathy with it, but it would expand the role of
lawyers by involving them in the instruction of medical experts. I have
a problem with that, because it brings us back to the involvement of
lawyers. I would argue that the amendment is inappropriate as the
intention of the Bill, in essence, is that there should be an internal
offer-making process. Its purpose is to avoid legal costs rather than
attract them. The amendment would add to the complication and replicate
the court system, which was referred to in a debate on an earlier
clause, again raising the general issue of involving lawyers. I suggest
to the hon. Gentleman that if we truly want an open, transparent and
non-adversarial system, the best way of accomplishing that is by
keeping the lawyers out of the scheme until we get to the end, when the
offer of compensation is made.
It is also not clear from the
amendment whether such experts are to consider issues such as
liability, causation, condition and prognosis. We shall therefore not
support it.
Andy
Burnham: To use the words of the hon. Member for
Southport, the amendment is not necessarily out of kilter with the
Bill, but nor is it necessary, because the Bill as drafted achieves
precisely the aim that I believe he seeks. The amendment would insert a
new subsection (2)(c), to provide that individuals must have legal
advice when seeking jointly to instruct a medical expert in conjunction
with the scheme
authority. First, the
amendment is not appropriate, as the clause is concerned only with the
provision of legal advice to individuals to whom an offer under the
scheme is made. That is, the clause covers what must be provided to
patients to whom offers are made. The joint instruction of a medical
expert would usually be undertaken to inform decisions on eligibility
or quantum, and would thus naturally occur before the making of an
offer. The amendment is concerned with the provision of legal advice at
an earlier stage, referring specifically to “those seeking
redress”. An offer will not have been made to people seeking
redress. The amendment therefore confuses the existing provisions and
the important requirement for legal advice contained in subsection
(2). Secondly, the
amendment is unnecessary because there is an existing power in
subsection (2)(a) to enable
legal advice to be made available to people where there is a need for it
at an earlier stage, as my hon. Friend the Member for Birmingham,
Erdington said, such as where there is the joint instruction of medical
experts. We have stated our intention with regard to independent
medical experts in paragraphs 60 and 61 of our statement of policy on
the NHS redress scheme for the Bill to provide flexibility for the
provision of services that may help to reach an agreement to settle. It
is intended that further consultation with stakeholders will take place
to identify which services might be appropriate and effective for such
cases. Options might include mediation services or the services of a
jointly instructed independent medical expert. If in determining the
facts of a case, the scheme member or the scheme authority considers
that evidence from an independent medical expert is necessary, it is
intended that they will also seek to ascertain the wishes of the
patient to reach agreement on an acceptable
person. We accept the
principle, which will be appropriate in some cases, for a jointly
instructed medical expert to be engaged and that legal advice early in
the process might be appropriate, as we discussed previously. That
would enable the patient to be fully informed and involved in the joint
instruction of such an expert. We will consult further following the
passage of the Bill to determine the detail of when and how such
services should be engaged. However, the Bill as drafted already allows
for that to happen, and the amendment confuses the advice given at the
point at which an offer is made with advice provided earlier in the
scheme in perhaps more complex cases.
The hon. Member for Southport
is not out of kilter with our intentions. In fact, he is very much in
step with what we seek to do. I hope to assure him that there is enough
in the Bill to give him confidence that legal advice will be made
available where appropriate to those who need that help. However, it
would not be right to accept the amendment, as it confuses the two
issues. With those assurances, and having said that I accept the spirit
of what the hon. Gentleman is trying to achieve, I hope that he will
see fit to withdraw the
amendment.
Dr.
Pugh: The official Opposition’s position appears to
be that they have a clear idea of how the process should take place and
that, until a certain stage, lawyers are simply not in the frame at
all. The Minister’s view is that lawyers might or might not be
in the frame at various points, but that the Bill already caters for
the kind of contingencies that are visualised. He has not resolved the
fundamental problem of what will be done, when there is joint
instruction of medical experts, to guide somebody who has no experience
of the process and is working with an NHS organisation that has every
experience of it. There is a problem to be solved, and we shall find
out whether the Bill will eventually succeed in doing so.
I beg to ask leave to withdraw
the
amendment. Amendment,
by leave,
withdrawn. Clause
8 ordered to stand part of the Bill.
Clause
9Assistance
for individuals seeking redress under
scheme
Dr.
Pugh: I beg to move amendment No. 22, in clause 9, page 5,
line 27, at end
add— ‘(5)
In making arrangements under this section, the Secretary of State must
have regard to the principle that the persons providing services under
subsection (1) should be able to demonstrate an appropriate level of
expertise and experience in the provision of medico-legal advice in
clinical negligence
matters.'. This
is a probing amendment along the same lines as amendment No. 23. We are
assuming that patients will be adequately, thoroughly and effectively
advised so that the system can work as well as possible. The amendment
would ensure that a provider of assistance and advice has expertise and
experience. In the
statement of policy, assistance for those seeking redress is described
as being provided
through “Patient Advice
and Liaison Services (PALS) and Independent Complaints Advocacy Service
(ICAS) type
arrangements.” Both
of those organisations are commendable, and the people involved with
them are doing worthwhile work, but neither is appropriate for
empowering a patient to influence the outcome of an investigation that
has to pass something legalistic such as the Bolam test. Patient advice
and liaison services are not genuinely independent, being part of the
customer care arrangements in the NHS, and ICAS is designed to help
patients navigate the complaints procedure. Neither seems to fit the
bill for the provision of complex advice in difficult circumstances,
and they could not do so without changing radically their purpose,
nature and set-up. That would be true even if the Government were to
leave them alone for any length of time, which they rarely do, often
being minded to abolish or change them or create different
organisations in their place. The amendment would ensure that the
advice available to individuals was appropriate and came from qualified
people. I cannot see any fundamental objection to that, but other hon.
Members
might.
Mr.
Baron: The hon. Gentleman has made clear the aims behind
the amendment. I have some problem with it, because our view of the
McKenzie-type friend is that it should be an informed lay person, able
to provide support and guidance on procedures and ensure that a patient
does not feel at a loss within the system. The clause enables the
provision of that sort of person. The amendment would introduce
substantive legal and perhaps medical advice at all stages of the
process, rather than at the end as is currently envisaged. I therefore
return to points made on preceding clauses, upon which I shall not
expand. The amendment would add complexity and potential expense and go
some way towards replicating the courts
system.
Dr.
Pugh: I think I said that this was a probing amendment,
and I primarily intend to find out what arrangements the Government
intend to provide to support patients. I have no fixed idea of what
they might
be.
| 
