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Lord Warner: My Lords, I do not for one moment believe that the Government's position is incoherent. It is a fact of life which people have to face that in legal and other processes there is already a lot of legislation, custom and practice about disclosure. One cannot simply overturn that position in relation to particular issues in this Bill. We have tried to have regard to the practicalities and realities of that alternative legislation and practice in framing this legislation.
The noble Earl, Lord Howe, referred to my letter of 20 December, in which I stated that it is intended that, with regard to any case handled under the scheme, relevant material will be disclosed to the patient or other individuals eligible for redress. For example, it is intended that medical records, adverse incident reports, complaint files, where relevant, and Health and Safety Executive investigation reports, where relevant, would be disclosed. This mirrors the situation of a case being handled by the NHSLA under the clinical negligence scheme for trusts. The existing statutory rights of access to information under the Data Protection Act will apply.
It is intended that the scheme may provide for the investigation of cases under the scheme to produce an investigation report, and we intend to consider further, in consultation with stakeholders, whether the investigation report should be made available to the patient or individual eligible for redress, subject to any restrictions surrounding data protection. We cannot wish away the existence of other legislation on the statute book.
It is, however, appropriate that there may be an element of non-disclosure, as documents which are covered by legal professional privilegefor example, confidential communications for the purpose of obtaining legal advice and assistancewill be privileged, in accordance with the general rules of legal professional privilege; again, this is a practical state of existing practice and law. These general rules should apply.
There may be situations where it is not appropriate for personal information to be disclosed. For example, where an application has been made to the scheme by
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a dependant following the death of a relative, it may not be appropriate for the medical records of the patient to be disclosed to the surviving relative where the deceased patient wished for their medical records to remain private and confidential. These are reasonable expectations, which have to be respected. However, these issues are best dealt with by applying the existing law on disclosure. We therefore oppose the amendment.
Baroness Barker: My Lords, I thank the Minister for his reply. If the existing law on disclosure worked, then both the NHS complaints procedure and those cases which go through the NHSLA would certainly not take as long as they currently do. There is clearly a deficit of information. I should like to believe that in due course, when this scheme has been in operation for some time and trusts have got into that famous "learning culture" that the Minister spoke of, such measures would be unnecessary. As things stand, however, I am not hopeful that that will the case for quite some time.
"(2A) A scheme may make provision for access to an independent medico-legal expert agreeable both to the scheme authority and the person involved in the case which has been the subject of a report by the Patient Redress Investigator.
(2B) Both the scheme authority and the person involved in the case shall agree to be bound by the findings of the independent medico-legal expert."
The noble Baroness said: My Lords, we return to another key area of discussion on the Bill. During Grand Committee my noble friend Lady Neuberger in particular talked about the importance of the Resolve-type schemes that had been piloted and the ways in which those pilot schemes had demonstrated the value of having easy and swift access to medical and legal advice at an early stage, to ensure that people who had an adverse incident within the NHS could obtain redress swiftly andcruciallywithout recourse to the courts. I said earlier that we would be discussing an important matter on which the House has made its views knownhaving an independent first stage during which facts could be established. I also talked about the need to ensure that, once such a report had been made, there be means by which an individual can be given advice in order to know whether it is appropriate for them either to be part of the redress scheme or to take their case to court. It is important that it is medico-legal advice; that is, given by someone who has not just an understanding of the law but sufficient understanding of medical and clinical issues, a matter to which the Minister referred earlier.
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Throughout the debates it has concerned me that it has been unclear exactly how people would obtain such specialist advice. On these matters, the Minister again spoke at length in the letters that he sent to me and the noble Earl, Lord Howe. He talked about the role of ICAS. What he had to say was not sufficient for the type of work about which we are talking. Let us be clear about ICAS; ICAS officers are employed by trusts. They are engaged in a process termed advocacy, which is specifically not the giving of advice. Advocacy is enabling an individual to make their thoughts known. It is different from an individual having recourse to independent medico-legal advice.
It is therefore important that we make the provision, so that we can ensure that people are not left adrift. That addresses one of the points of criticism that the Minister made of Amendment No. 42, in that it was incomplete. This measure should be seen clearly in conjunction with the work of the patient redress investigators. It is short of what the noble Earl, Lord Howe, spoke of on previous occasions as a McKenzie friendhaving someone throughout to give advicebut it is the necessary service that an individual would need to be able to determine where their case should go next. Having such a provision in the Bill is important. I therefore beg to move.
Earl Howe: My Lords, I am in tune with the spirit of Amendments Nos. 26A and 33. The former raises the prospect of the reintroduction of the Resolve dispute resolution scheme which, to all who had anything to do with it, was a successful experiment in mediating claims for redress, and greatly improved access to justice by common consent. I agreed with a great deal of what the noble Baroness had to say.
However, it is important to stress one point. What the amendment refers to as the findings of the medico-legal expert should not be taken as implying that the expert would be tasked with determining liability. That is a judicial function. What experts do in essence is advise in a non-partial way on the facts and arguments at issue. That may sound like a pedantic point, but in the context of the debate it is important.
To my mind Amendment No. 33 is also important, because anyone who wishes to have properly informed advice about an offer made under the scheme will want to know that the person giving the advice is appropriately qualified in both a legal and a medical sense. However, perhaps I could anticipate the Minister's remarks in support of his own amendments by asking him a question. Solicitors will be asked to give advice to clients about the adequacy or otherwise of financial offers they may have received from the NHSLA. Is he absolutely satisfied that that activity would accord with the solicitor's professional code of practice? Is it something that solicitors feel able to do freely? To advise on the quantum of an offer requires them at the least to be in possession of sufficient information, but they will not have that information because, as we have heard, the internal deliberations in
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the NHSLA will be subject to legal professional privilege. Will solicitors therefore be placed in a difficult if not invidious position?
Baroness Royall of Blaisdon: My Lords, I must first apologise for any confusion that has been caused by a minor drafting error in the list of government amendments that was sent out to your Lordships with my noble friend's letter of 18 January 2006. As noble Lords may have noticed, the version of Amendment No. 30 that they received differs slightly in one respect from the amendment as published. I regret that Amendment No. 30 as sent out contained a technical error, in that it would have resulted in the inclusion of an extra word, "of", in Clause 8(1)(b). The error was noticed and the correct amendment was published, but after the letter with the attached list of amendments had been sent out. I assure your Lordships that there is no difference in policy terms, or effect, with regard to Clause 8(1)(b).
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. In Committee, noble Lords expressed concern that Clause 8(1) gives the Secretary of State discretion over the circumstances in which legal advice is to be provided without charge under the redress scheme. I gave an undertaking to noble Lords to reconsider the drafting.
If the redress scheme is to offer patients a credible alternative to litigation, it has to have the full trust of patients going through the scheme. Amendments Nos. 29, 32 and 34 strengthen the Bill by including a new subsection (1A) in Clause 8 which provides that the scheme mustnot maymake such provision as the Secretary of State considers will ensure that all persons making a claim under the scheme will have access to free legal advice in relation to offers and settlement agreements.
The Secretary of State will be under an obligation to provide for free legal advice in respect of offers and settlement agreements in all cases. I hope that this will provide reassurance that the scheme will not require the waiver of rights by those harmed during NHS care, unless those people are fully aware of the consequences and consent to that waiver. In Committee, concerns were also raised over when a jointly instructed independent medical expert may be involved in the process.
We would not wish there to be any restriction on the stage at which such services may be provided, and hence this restriction has been removed by Amendment No 31. Amendment No. 30, by inserting the words,
enables the scheme to provide for appropriate services at any stage of the scheme. This will enable the scheme to provide for services which are intended to help determine questions of liability, such as, where appropriate, the services of a jointly instructed medical expert to assist with questions about whether a case falls within the scope of the scheme. It will also enable the scheme to provide for services intended to help determine the appropriate level of compensation to be offered, such as, where appropriate, the services of a jointly instructed medical expert to assist with questions about the extent of an injury, and future consequences to the patient as a result of that injury.
Amendment No. 31 makes clear that the Secretary of State may make provision for a range of services in connection with proceedings under the scheme, including in particular the commissioning of services from medical experts. We intend to work closely with stakeholders when drafting the secondary legislation to determine the circumstances in which it may be appropriate to commission an independent medical expert.
Amendment No. 26 would insert into Clause 6 a power for the scheme to make provision for access to an agreed independent "medico-legal expert". I consider this to be inappropriate. First, it is not clear what exactly is meant by the term, although the explanation given by the noble Baroness, Lady Barker, has thrown some light on that. If it is envisaged that patients will have access to a medical expert with legal qualifications, there are clear cost and resource implications. Such expertise may not be appropriate for the type of more straightforward, lower-value cases that will be dealt with under the scheme.
Secondly, we have existing powers to provide both expert medical and legal advice. Clause 8 specifically provides for both legal advice and access to other services, including the services of medical experts. It is envisaged that the services of jointly instructed independent medical experts may be engaged to assist in determining questions of eligibility for the scheme and the appropriate level of compensation to be offered.
As regards legal advice, it is intended that the achievement of quality mark status will be used as the standard for the legal advice given at the point at which an offer is made under the scheme, and that the system of giving advice would be similar to current practice for litigated casesthat is, the work may be undertaken by or will be supervised by the panel solicitor. It is intended that these measures will ensure that patients have access to an appropriate level of specialised advice.
The government amendments to Clause 8(1)(b) provide a broad power to allow for the provision of services throughout the process. That is a satisfactory solution that will allow appropriate services to be used in appropriate cases. In many cases, settlement will be reached without the need for other services. We would expect the patient to be consulted throughout.
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Importantly, Amendment No. 26 would also require the scheme authority and the patient to be bound by the findings of the independent medico-legal expert. It seems that the amendment seeks to enable this expert to determine liability. This confuses the investigation process and the decision-making process. There will be cases where an independent expert medical opinion is necessary. The scheme makes provision for that. The opinion of the expert will, of course, be highly persuasive. However, he or she is not there to pre-empt the decision of the scheme authority, but to add to the knowledge of how the incident arose. The amendment would take the assessment of eligibility under the scheme out of the hands of the scheme authority, so I think that this amendment raises many questions about who these medico-legal expertswho it is actually envisaged will be determining eligibilitywould be.
The amendment would seek to incorporate into the redress scheme a form of independent dispute resolution, which would be inappropriate and have huge cost implications. I firmly believe the scheme authority has to be responsible for making decisions about eligibility under the scheme. The scheme authority will make decisions according to the law of tort and after considering appropriate expert evidence, if necessary. The NHSLA, as the proposed scheme authority, is best placed to make these decisions. That is its area of expertise. The redress scheme is intended to be an out-of-court settlement scheme. If an offer is not made under the scheme or is rejected, the patient retains his right to seek redress though the courts. The scheme is not intended to determine rights and bind patients.
There is a further safeguard. Clause 14 introduces a complaints mechanism for cases of alleged maladministration. Ultimately, these cases may go to the Health Service Commissioner. Any decision made by the scheme authority on eligibility or quantum which does not take into account the facts, or unreasonably overrides an expert medical opinion, may be expected to fall within the scope of this power. This safeguard is sufficient to ensure that the evidence provided by independent medical experts is appropriately taken into account when decisions are made under the scheme.
Amendment No. 33 would provide that legal advice on the offer and settlement under the redress scheme would specifically be specialist medico-legal advice. This amendment provides no flexibility. It suggests that specialist medico-legal advice will be necessary in all cases falling under the redress scheme. I am opposed to this, as I do not believe that it would be cost-effective for independent medico-legal advice, or indeed independent medical expert advice, to be obtained with regard to every case under the schemefor example, in some cases it will be clear that there is liability without the need for an independent medical expert opinion. This scheme is for cases of lower monetary value. In some cases the patient will simply require legal advice on the offer and settlement
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agreement. The amendment restricts flexibility and has the potential to lead to additional unnecessary costs. I therefore oppose both Amendments Nos. 26 and 33.
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