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NHS Redress Bill [HL]

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 4. When the Bill was last in this House, it was amended to require the Secretary of State for Health to make provision for the appointment of patient-redress investigators. There was to be a panel of independent investigators, and the Healthcare Commission was to maintain a list of those investigators and oversee them. The independent investigation was to be confined to fact finding, and the scheme authority was to have no role whatever in investigations. It could not even provide advice or guidance to scheme members. To refresh the memories of noble Lords, the amendments were passed here by the narrowest of margins—one vote—and were comprehensively rejected in the other place by 95 votes. When the Bill went to Report in the other place, there was no attempt to reinstate references to patient-redress investigators or the Healthcare Commission. I believe this to have been an appropriate response. The model passed in this House suffered from excessive cost and impracticality. On that occasion, I mentioned that Department of Health economists estimated that the cost would be £41 million a year. We are now presented with a group of amendments that would enable the scheme to provide for independent oversight of investigation, with the person overseeing the investigation required to be independent of the scheme member in question and the body or person being investigated. I suggest that this is an attempt to reintroduce the concept, firmly rejected in the other place, of independent oversight of the initial investigation. This again raises many unanswered questions, the obvious ones being: who is to provide the independent oversight; how will these people be chosen, and by whom; what qualifications are they to have; to whom, if anyone, will they be answerable; how and by whom is administrative support and accommodation to be provided; and what if the member carrying out the investigation and the independent overseer do not agree about the investigation report? In Committee in the other place we were toldthat there would be the same administration, but operating under the direction of an independent person, so that there would be no new bureaucracy. This seems to imply that the investigation will merely be checked by an independent person but from the wording of the amendment before us, I do now know how we can be sure of that. It seems strange to be introducing at this stage in the Bill an un-thought-out set of proposals that is uncosted and which must make the whole scheme more bureaucratic and difficult to explain to patients. It is not as though we have not provided for independent oversight, and I know that Members on the Benches opposite have been concerned about independence in this Bill. Should the investigation not be carried out properly, the Bill has in place a complaints system, ultimately to the ombudsman, who is of course fully independent of the NHS and the Government and who may be used if a patienthas a complaint about maladministration in an investigation which has fallen below the standard expected. Ann Abraham, the Health Service Commissioner, has welcomed the fact that the operation of the scheme will fall clearly within her jurisdiction subject to the usual conditions set out in the Health Service Commissioners Act 1993. She said: "““I hope the fact that an independent review of complaints about the scheme will be available will give reassurance to both complainants and the NHS bodies involved””." It certainly gives reassurance to the Government. The Bill also takes powers that will enable the scheme to have other elements of independence. There may, where appropriate, be independent medical advice and evidence, and free independent legal advice that must be provided to people to whom an offer of redress is made. We have existing powers in Clause 10(2)(a) which will enable the scheme to require its members to charge an individual of a specified description with the responsibility for overseeing the carrying out of specified functions. This enables the scheme itself to provide that the person must oversee the investigation at the local level and have particular qualifications and/or experience. We envisage that the person given the task of overseeing the carrying out of investigations will ensure that appropriate information is properly collected and provided to the scheme authority. This will provide an additional check on the standard of investigation. Finally, responding to concerns expressed by noble Lords about the need for an independent check on performance in the operation of the redress scheme, we intend that consideration of the effectiveness of the operation of the NHS redress scheme, including investigations carried out under the scheme, will be included as part of the Healthcare Commission’s annual review of the provision of healthcare by and for NHS bodies. The intention is that the Secretary of State would include a new standard relating to redress and that the Healthcare Commission would include new criteria against which the operation of the scheme would be reviewed. This role can be taken on by the Healthcare Commission without the need for any amendment to its existing powers. Because I know of the concerns about independence, I have gone through this to demonstrate the wide provision in the Bill for independent elements at the various stages. I want to say a little about natural justice because the term has been bandied about in this context on the issue. We need to be clear whether it is at stake here. It has been said in the Commons Committee that: "““Independence is a basic principle of natural justice enshrined in the rule against bias that no man may be judge in his own case””.—[Official Report, Commons Standing Committee B, 26/706; col. 1539.]" That is absolutely right, but the rules of natural justice are rules of procedure. The common law recognises procedural fairness and this same principle is reflected in the rights contained in the European Convention on Human Rights. If decisions are being taken which determine a person’s civil rights and obligations, then the requirements of Article 6 of the European Convention on Human Rights must be met. There must be a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. We accept that. However, the redress scheme will not involve any determination of civil rights and obligations. An offer may be made to a complainant, but it is only an offer. No rights will be determined when cases are investigated under the scheme in an effort to resolve disputes without having to go to court. It is standard practice for potential defendants to investigate, to try to discover what happened, and, if appropriate, to try to resolve matters without legal proceedings. Neither the rules of natural justice nor the rights under the European Convention on Human Rights require an independent investigation procedure to be established under the redress scheme. We have gone into this with a great deal of care, and this is the established legal advice in this particular area. There is no question of the NHS or the NHS Litigation Authority acting as judge in these cases. I fear that some of the objections in this area lose sight of the purpose behind this Bill: to provide patients with the speedy resolution of low-value monetary claims without the need to go to court. We do not intend to set up a second independent judicial process or to duplicate the existing court systems. Throughout this Bill, we have argued that where a mistake is made, it is right that the scheme member promptly investigates the case, where appropriate makes an offer to resolve it, and learns from the mistake. If we remove or in some way fetter that responsibility, we damage the integrity of the scheme. I must stress that the proposals put forward in this amendment are bound to lead to considerable additional bureaucracy, and they must lead to some costs—we do not know at the moment what those costs would be. It would mean there was no single body with overall responsibility to ensure consistency of approach, cost-effectiveness and good standards. If investigations are to be independent, it is hard to see how a separate bureaucracy is to be avoided, even where the role is limited to oversight. This is why we believe we should accept the Commons amendments, and not pursue the ideas and proposals in the amendments to them. Moved, That the House do agree with the Commons in their Amendment No. 4.—(Lord Warner.)