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Lord Warner: Let me assure the noble Baroness that patients can trigger the scheme. Clause 4(2)(f) enables the scheme to cover the situation where proceedings are commenced without the person himself asking or being aware that the scheme had been triggered. It is intended that providers of hospital care as part of the NHS in England will be required actively to identify cases that may be eligible under the scheme as a result of considering complaints, adverse incident reports or cases identified through the organisation's corporate governance procedures, and where such cases are identified, to start the scheme and initiate an investigation. In such cases, Clause 4(2)(f) will enable the scheme to require the person who may be eligible for redress to be notified of the commencement of proceedings under the scheme. Keeping patients informed is at the heart of the process, and it will be a key to the success of the scheme.
We are trying to produce a scheme that enables people to apply, but that does not rely on people applying. As we discussed earlier, we are trying to change the culture of the NHS in that respect. We did not want to rely purely on an application-based scheme. We thought it right that where the authority itself recognised that mistakes had been made, it should be able to trigger the scheme. Clause (4)(2)(f) requires the authority to notify the patient. It is also intended that applications may be made to the scheme by a patient or any dependent—for example, spouse, child or civil partner—who believes that they may have a claim following the death of a patient by virtue of the Law Reform (Miscellaneous Provisions) Act 1934 or the Fatal Accidents Act 1976. It is intended that it will also be possible for an appropriate representative to make a claim on behalf of a patient; for example, on behalf of a child or a person who lacks the capacity to make an application for himself, or where the patient has requested the representative to act on his behalf.
The amendment is unnecessary, as the Bill as currently drafted already allows for individuals to apply to the scheme directly. The details of who may make applications will be covered in the scheme and will therefore be part of the secondary legislation on which we will be consulting stakeholders. Where an application is made, the intention is that the scheme will require the relevant scheme member to consider the application and, if it falls within the scheme, to investigate and make an appropriate offer of redress.
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That is the background. The two issues are that people can apply under the scheme, but even if they do not apply, the scheme may be triggered, and they will be notified when a member of the scheme has decided to carry out an investigation.
Baroness Barker: I thank the Minister for that reply. He spoke about members of the scheme actively identifying complaints from their own circumstances and from clinical governance procedures. He talked about people being notified of the commencement of the process. He said that the scheme does not rely only on an application, and he talked about people being able to apply under different legislation following a death under the Fatal Accidents Act. He also talked about children and persons lacking capacity being eligible under the scheme via a representative.
Nowhere in all of that did I hear him talk about a provision under which an individual can trigger the scheme for himself. I press the Minister to explain where in the Bill that provision is, because it is not at all evident. It has to be evident if this scheme is to succeed in its key aim, which is diverting away from litigation cases that would not be best served by litigation. The Bill has to be absolutely clear to people that they have the right to trigger the scheme. I would be most grateful to the noble Lord if he could explain exactly where that power is in the Bill.
Lord Warner: I draw the noble Baroness's attention to the provisions in Clauses 4(2)(a) and (e), which require guidance to be produced under the terms of the scheme. They enable us to set out in much more detail than is possible in primary legislation the circumstances in which individuals may apply. I return to what I said at Second Reading and earlier on this amendment. We are trying to get at these episodes and incidents on a twin-track basis. We are making provision for the scheme to be commenced by people applying, but we are not relying on that. We are also requiring the trusts themselves, in the circumstances which I explained in relation to Clause 4(2)(f), to commence the proceedings of the scheme, and at the same time notify patients that they had actually commenced the scheme. So we have turned our back on a pure application system. We are trying to get trusts themselves to initiate actions where that is appropriate as well as relying on patients to apply. I categorically assure the noble Baroness that there is no intention on our part to stop patients applying. That is why we will be setting out the provisions under which people may apply under the terms of the scheme. I gave specific examples in my previous remarks.
Baroness Barker: I thank the Minister very much for that reply. I do not wish to give the impression that we on these Benches do not agree that if the scheme is to work well, the power and the onus to initiate it should lie primarily with the NHS. However, I think that Clause 4(2) is not satisfactory. It does not make clear or encapsulate the fact that the process can be initiated by an individual or by the NHS trust. It is strange that it has not been possible to encapsulate that within the clause. None the less, I hear what the Minister says. At
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this stage, I shall seek leave to withdraw the amendment. However, given that none of the expert bodies that have advised us on these matters understood that the power we are seeking is in that clause, we may return to the issue. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Barker moved Amendment No. 21:
"( ) requiring proceedings under the scheme to be concluded within a fixed period of time, except in circumstances where an independent suitably qualified person considers this not to be reasonable."
The noble Baroness said: I return to the issue of time scales and limitations of time. The two amendments in this group, Amendments Nos. 21 and 30, talk about the need to ensure that fixed time limits are agreed, preferably by a mutually appointed independent representative, as that is the best way of dealing with an application under the scheme. We believe that that would increase confidence on all sides in what is at heart a good measure. In Amendment No. 30 we are also seeking to establish that there should be time limits in the investigation and evidential stages leading up to the conclusion and acceptance of the scheme. My noble friend Lady Neuberger, who has far greater practical experience of these matters and of complaints systems than I, has already spoken about the extent to which matters are allowed to drag on. Given that these schemes are to be run and administered by trusts, if we had provisions such as these on time limits, it might be to the advantage of all concerned to ensure that there was no manipulation of relevant budgets throughout the financial year because, ultimately, there will be a limited amount of money within trusts from which these and all other matters have to be paid. So I think these amendments would assist those who have to deal with the consequences in planning how and when they deal with cases. I beg to move.
6.15 pm
Lord Warner: One of the main objectives of the NHS redress scheme is to provide a mechanism for resolving claims without the need to go to court, thereby avoiding the delays that are perceived to be inherent in the legal system. The scheme is intended to facilitate the resolution of cases in a swift manner, ensuring that redress is provided to the patient as quickly as possible. To achieve this, I believe that it is important that each stage of the process under the scheme is governed by time limits; provision is made for that in Clause 4(2)(c). The intention is to set out the time limits for each stage of the process in the scheme, and the aim is to resolve cases significantly quicker than the current average of about one and a half years for litigated cases. It should not be too difficult to improve on that kind of timescale.
Amendment No. 21 allows the scheme to impose an overall time limit for the conclusion of proceedings under the scheme that could be exceeded only with the agreement of an independent person. I do not believe that we need to go along that route, as we intend to
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consult further on the matter of time limits when drafting secondary legislation to ensure that appropriate time limits are set. While the scheme seeks to produce speedy resolutions, patients may feel it more appropriate to focus on the outcome, rather than the time taken, and we will listen to their views. Should it become apparent, after further consultation with stakeholders, that an overall time limit for the conclusion of proceedings under the scheme would be appropriate, the general power set out in Clause 6 (1) would be sufficient to allow us to introduce such a time limit.
Amendment No. 30 would allow the scheme to provide for a time limit with regards to the investigation and evidential stages of the scheme. Again, I intend to oppose this amendment, as we intend to consult further on the matter of time limits, and such a measure would be unnecessarily restrictive. The amendment would also remove the current power for the scheme to provide a time limit in relation to the acceptance of an offer under the scheme. That is inappropriate, because it is important for the proper functioning and administration of the scheme that there are time limits in that regard. Under the powers in Clause 7, we intend to provide that any time limit for bringing court proceedings in respect of a case that is being considered under the scheme is suspended for the duration of the scheme proceedings. The scheme is not intended to affect the legal rights of the patient, and it will stop the clock running as long as the case is being considered under the scheme. That protects a genuine choice for patients by ensuring that they will still have enough time to bring a case through the courts if they wish. It is therefore important that all parties are clear about when the suspension is to end; it would be inappropriate to have an indefinite period of suspension of any time limit for bringing court proceedings. That is our case for leaving well alone until we get into further consultation on some of the issues affected by Amendment No. 21 and parts of Amendment No. 30.
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