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Baroness Barker: I thank the Minister for that response. I take his point about the time limitation for taking a case to court, but it seems odd that we have in the Bill an express statement about time limits for the commencement of proceedings but not for other parts of the process, when they are all in their entirety part of the sum total of action that gives redress. Vast numbers of people take out complaints against the NHS, and whatever the resolution of those complaints—favourable though it may be—those people are considerably disaffected, to say the least, by the fact that their complaint has taken such an immense length of time to resolve.

Therefore, it seems to me that when one is setting out the elements of a scheme that will be open and transparent and will satisfy the needs of both clinicians and patients it is not unreasonable that there should be some commitment expressed in the Bill to ensure that proceedings are not dragged out during the
 
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investigative stage. At this stage, I have listened to what the Minister said, and I beg leave withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Neuberger moved Amendment No. 22:


"( ) There shall be a duty upon scheme members to inform a patient when a mistake has been made."

The noble Baroness said: In moving Amendment No. 22, I shall speak also to Amendment No. 28. The amendment seeks to encapsulate what the Minister has been telling us is very important in changing the culture of the NHS—which was very much the point of the Chief Medical Officer's Making Amends. If, as we understand, the whole purpose of this is to get to a stage where those working in the NHS are open and transparent about what goes on, when something goes wrong not only should members of a scheme be able to initiate an investigation, but they ought to inform patients when a mistake has been made that it is the sort of thing that they might wish to investigate.

The fact that that is not in the Bill leads one to feel that this is still more being led by the NHS than by the patients. I took the Minister seriously when he said that he wanted the patient to be central to this and driving the way in which the investigation and redress system worked. If that is the case, it seems to me that it is essential that the patient should be told when a member of the scheme—an NHS body—discovers that a mistake has been made, even when the patient himself may not have realised that a mistake has been made because he does not have the necessary expertise. I beg to move.

Earl Howe: I very much agree with everything the noble Baroness has said, and I would like to add only a few comments on the other amendments in the group. One of the yardsticks of a successful scheme will be the extent to which it succeeds in demonstrating transparency. That is as much true of the Government's proposals as it is of the alternative model which we prefer, and which I outlined earlier under Amendment No. 1.

The person who has made the application to the redress scheme will want to be able to see that during the course of the investigation full consideration has been given to what he believes to be the appropriate issues. His legal advisers will not be in a position to assess the accuracy of a finding of fact or, under the Government's version, the appropriateness of an offer made, without access to documentation including the medical report and any reports on the evidence used to support or rebut the claim. So the first question to the Minister is about disclosure; to what extent disclosure will be a feature of the scheme, whether it is requested or not; and will there be any particular types of documentation that will be deemed privileged and will therefore not be disclosed to the patient or his advisers?

The second aspect of this amendment is covered more explicitly in Amendment No. 54. As we have discussed already, one of the key aims of any successful
 
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redress scheme has to be the absorption of lessons learnt by those who were responsible for whatever went wrong in a particular case, but the process of lessons learnt should not stop there. There may well be lessons and messages that are of relevance in the wider NHS. The NPSA is the body charged with collating and drawing lessons from adverse incidents in the NHS, and I should like to hear from the Minister how proceedings under the redress scheme will be linked into the work of that agency to ensure that the NPSA has before it the relevant factual details of an investigation and the scheme authority's recommendations about lessons to be learnt where there is a finding of error. I hope that the Minister can shed some light on those issues.

Lord Warner: Amendment No. 22 would place a specific duty on scheme members to inform a patient when a mistake has been made. I agree that where a mistake is made during a patient's hospital care and a patient suffers an adverse outcome it is key that the patient is informed, and the intention is that the scheme will provide for patients to be informed in those circumstances. It is intended that the scheme will require scheme members to investigate, where a scheme member identifies a case that may be eligible under the scheme; or where a person applies to the scheme, the scheme member will investigate.

Clause 4(2)(f) provides for the notification of the commencement of proceedings under the scheme, and it is intended that in circumstances where a case is identified as being potentially eligible under the scheme—where a mistake has been made—the patient or other person potentially eligible for redress will be informed. After investigation, it is intended that the scheme authority will determine whether the case falls within the scheme. Under Clause 3(2), the Secretary of State is obliged to include in the scheme the giving of explanations, and it is intended that the explanation will identify mistakes that have been made and explain how the harm or loss came about.

Amendment No. 28 would enable the scheme to make specific provision about those people who should be informed about proceedings under the scheme. Again, I agree that ensuring patients are kept informed about proceedings under the scheme at every step of the process will be vital to the scheme's success. The provisions in the Bill are sufficient to achieve that effect; I have already mentioned Clause 4(2)(f). It is envisaged that scheme members will also want to take appropriate steps to ensure that the patient is kept at the heart of the process, including notifying them at an appropriate early stage, keeping them informed of the progress of their case, informing them of the results, and meeting any remedial care needs that they may have. It is envisaged that good practice on keeping the patient informed throughout the process will be set out in guidance issued by the scheme authority, which will be drawn up in consultation with stakeholders. Scheme members will be required to have regard to such guidance under the obligations set out in Clause 10(2)(d).
 
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The noble Earl, Lord Howe, raised the issue of the National Patient Safety Agency. One of the key objectives of the scheme is to facilitate learning from mistakes at a local level. The NPSA's confidential reporting system for adverse incidents has a similar objective; it aims to identify patterns and facilitate learning from mistakes at national level. Certainly in a previous incarnation I was pleased to get that scheme well established with the NPSA. The NHS redress scheme is intended to encourage a move towards a more open culture with an active approach of identifying mistakes and the goal of providing open and full explanations as a matter of course. To achieve that, the Department of Health will be working together with the NPSA and the broader NHS to encourage a more open culture and foster an open team attitude.

Clause 13 already imposes a duty on the scheme authority and the NPSA to co-operate with each other where it appears to them that it is appropriate to do so for the efficient and effective discharge of their respective functions. That will further the NPSA's objective of collecting data at a national level on adverse incidents across the NHS. Reporting of incidents, whether openly or anonymously, is key to gaining knowledge about things that go wrong, learning lessons and providing practical solutions.

Amendment No. 54 enables the scheme authority to require scheme members to provide information or documents to the NPSA. As I have said, one of the key objectives of the redress scheme is to facilitate learning from mistakes. The confidential learning system of the reporting system of the NPSA has a similar objective. Clause 13 already imposes a duty of co-operation between the two agencies and we believe that that, together with the arrangements that are already in place for the NHS to report to the NPSA, make further amendment of this legislation unnecessary.

Guidance about disclosure to patients will be issued, but it will be open to the Secretary of State to provide in the scheme for patients to be provided with key documents, using powers in Clause 10(2)(b) to require scheme members to carry out specified functions.

6.30 pm


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