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NHS Redress Bill [Lords]

It is very straightforward, and I am sorry that the Minister is having trouble with it. We are suggesting that whoever oversees the investigation should be independent of the trust in question. I hope that that is a simple concept to understand. That is the best way of importing independence into the scheme. We are trying to avoid the situation where the trust being investigated conducts the investigation itself. As this is enabling legislation, we are trying to import into the Bill the concept and principle of independence, something to which I think that the Minister—certainly, he suggested this in Committee—is totally opposed. I return to the point acknowledged by the Constitutional Affairs Committee in its report, ““Compensation Culture: NHS Redress Bill””, published on 1 March 2006. It stated:"““We are concerned that if the organisation which is responsible for defending trusts and hospitals is also charged with running the scheme, there may be a perception (whatever the reality) of a conflict of interest.””" That is terribly important. A change of culture within the NHS is desperately needed. At the moment, too many patients are frustrated by their inability to get to the truth, because they see themselves as fighting a bureaucracy that is not willing to co-operate. However, one cannot change the culture of a massive organisation such as the NHS by flicking a switch in Whitehall or through exhortation, as long as the trusts and individuals involved have an organisational and professional interest in the case—a conflict of interest. Patients want an independent fact-finding investigation, in which they have faith because of its independence. There can be no substitute for that. In patients’ eyes, independence will guarantee an honest assessment of the facts. To illustrate the point, I briefly beg the House’s indulgence—I am sure that all Members will have examples of constituents who have struggled—to recount a very sad case from my constituency. A daughter of the family in question suffered brain damage as an infant but survived into young adulthood. Sadly, she died unexpectedly, shortly after abdominal surgery. Even to a layman—it is a matter of common sense—there was a striking temporal relation between the occurrence of the operation and the occurrence of her death. It required some explanation. However, the cause of death certificate made no mention of the recent surgery. There has been a post-mortem examination, but the pathologist made no mention of the recent surgery in determining the cause of death. The death had apparently not even been reported to the coroner immediately following its occurrence. Months later the death was reported to the coroner, who declined to hold an inquest. Eventually, two years after the death and following much campaigning by the family—and several letters of robust representation from me—the coroner was persuaded that the death was a matter into which she ought properly to inquire. I do not know and cannot comment on why the cause of death certificate and the pathologist’s determination of cause of death did not refer to the recent operation. I can say, however, that the doctors who dealt with those matters were connected with the hospital where the events took place. The family—Mr. and Mrs. Sharp, who have obviously given me permission to raise the case here—want a factual explanation. That is all that they have ever wanted. Only then can they decide whether further action is required. They want an honest investigation of the facts, and have made it clear to me that that can only be brought about, in their minds, if the investigation is independent. Unfortunately, however, that request and many like it are being ignored by the Government. The Government have made clear, especially in Committee, that what is more important to them is for the NHS to take ownership of the scheme. That was reinforced by the Minister in Committee. The Government want the redress scheme to be an internal system that the NHS will feel that it owns and controls. But that is precisely why people might not have confidence in the system. They have already been battling with an internal system for years, and they are very frustrated by it. They want change, and they want independence. Without independence, any redress scheme risks lacking credibility. The amendments are also about separating fact-finding and fault-finding for the purpose of the scheme. We have specified that independence must relate to the fact-finding stage of the scheme, because establishing the facts must precede any assessment of liability. Both the Minister and the Secretary of State have conceded that there is a practical and logical distinction between fact-finding and fault-finding for the purposes of the scheme, and have also conceded that the Government’s proposed scheme is itself a two-stage process. On Second Reading, the Secretary of State said"““The trust would investigate and ascertain the facts and, with the patient’s consent, would refer the case to the scheme authority, the NHS Litigation Authority, to establish liability and an appropriate level of compensation.””—[Official Report, 6 June 2006; Vol. 447, c. 30.]" The Minister explicitly confirmed that in Committee, and that is exactly what we envisage. The principle underlying the distinction is set out in the Inquiries Act 2005 in relation to the coroner’s inquest, and its logic is readily acknowledged in our courts. If an additional endorsement of that logic were required, we would need look no further than the Inquiries Act itself. The Act provides that an inquiry has no power to determine a person’s civil or criminal liability. The explanatory notes state"““There is often a strong feeling…that an inquiry should determine who is to blame for what has occurred. However, inquiries are not courts and their findings cannot and do not ""have legal effect. The aim of inquiries is to help to restore public confidence in systems or services by investigating the facts and making recommendations to prevent recurrence, not to establish liability or to punish anyone.””" The Inquiries Act provides that an inquiry is not to be inhibited in the discharge of its functions by any likelihood of liability being inferred from findings of fact or recommendations that it makes. The explanatory notes state that"““it is not intended that the inquiry should be hampered in its investigations by a fear that responsibility may be inferred from a determination of a fact.””" It is important for the investigation of facts not to be contaminated by considerations of fault, either by the NHS Litigation Authority with a mind to defend the NHS or by lawyers asserting rights on behalf of the patient. Given that we and the Government agree that a two-stage process exists, the only issue is whether the investigation of the facts ought to be independent. We propose that the person who oversees the investigation of the facts must be independent of the trust concerned, as we have discussed. We believe that there is no other way of ensuring real independence. Rather than referring to independent fact-finding, however, the Minister has referred to various mechanisms to safeguard patients’ interests. We suggest that those are leaky buckets that do not hold water. The Secretary of State, on Second Reading, and the Minister, in Committee, referred to a variety of those. In our view, they cannot offer the reassurance to patients that genuine independence would provide. For example, the Minister suggested that free, independent legal advice on an offer or settlement would import elements of independence and safeguard patients’ interests. But that is not the same thing as an independent scheme. Participation by independent lawyers in a process does not transform a non-independent process into an independent one. Moreover, lawyers are not independent, but have to act on someone’s instructions. The Minister has also made great play of free, independent medical expert advice. I suggest that that is an empty assurance, because expert advice should be independent anyway, or it is not worth the paper it is written on. If it is not independent, it is not expert opinion at all, but advocacy. The person overseeing the investigation at the trust level would have the right to obtain independent medical expert advice in order to help to ascertain the facts, so the Government’s assurance that free, independent medical expert advice would help does not add anything.