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NHS Redress Bill [HL]

moved, as an amendment to Commons Amendment No. 4, Amendment No. 4A: 4A: Line 1, at end insert ““and insert ““in accordance with natural justice such that the person overseeing the investigation is independent of the body or person under investigation (such investigation to be confined to the facts of cases and not to consider issues of liability in law, whether civil or criminal);”””” The noble Earl said: My Lords, I beg to move Amendment No. 4A and shall also speak to Amendment No. 5A and Amendment No. 16A. I have listened carefully to the Minister and thank him for his full remarks. I would be the first to acknowledge that we have come a long way during the course of this Bill. There are a number of amendments incorporated into it as well as undertakings given by the Government that are positive and welcome. Yet it is with disappointment as well as a sense of genuine puzzlement that we on these Benches view the Government’s resistance to the single most important concept which we have sought to introduce into the Bill and into the scheme—independent oversight. We genuinely want this scheme to work. I am not in the business of making life difficult for the Government just for the sake of it. We all know and all agree that there needs to be a workable alternative to civil litigation for patients who feel aggrieved about treatment they have received from the NHS. One of the main ingredients of a workable alternative is that it has to be credible. It has to command confidence. Patients have to believe that it will produce a fair result. What have we got? We have a scheme that will see a patient’s application for redress disappear into a closed process, one that is the very opposite of transparent. The patient has no idea whether the facts of his case have been looked at fairly or fully. Additionally, we have, examining the claims and acting as the scheme authority, a body that is a part of the NHS itself. The NHSLA is not, in a true sense, independent of the interests of the trust whose actions it will be examining. Why is it not? Because one of the main functions of the NHSLA at present—a function which it fulfils with considerable success—is to defend the health service against claims made against it. That is essentially its current role. It is there not to take the patient’s part but to act on behalf of the NHS. How can patients regard the NHSLA, for all its in-house expertise, as having the necessary degree of objectivity and independence to do what is fair and right? They surely cannot. That is why we have sought at an earlier stage, with the approval of the House, to introduce amendments designed to import into the process that vital element of independence. It is important to emphasise one thing here: independent oversight is needed at the initial stage of the process when the facts are being assembled. It is not necessary or appropriate thereafter. I am not suggesting that there should be independent oversight of the NHSLA when it comes to consider issues of fault and liability—it will consider those issues and make an offer of compensation at the end or not as the case may be; the patient can take the offer or leave it—but unless the patient is confident that the factual basis on which his claim has been considered is accurate and fair, it is very difficult to see how the scheme will command his confidence. There are all kinds of ways in which this element of independence could be imported. At Report stage I proposed that there should be a panel of independent redress investigators, who would act rather as a coroner does when conducting an inquest. I am not bringing that idea back because the Government have told us repeatedly that it would be too expensive. In these amendments I am asking the Government to accept the principle of independent oversight of the fact-finding part of the process. I am not being prescriptive about how this should be achieved—after all, this is largely a skeleton Bill; a great deal will be left to regulations—but, as one idea, I would propose that where the actions of a particular trust were the subject of a redress claim, a non-executive director of a different trust could be brought in to provide the necessary element of independent scrutiny and oversight. The cost of such an arrangement should not be a factor. Indeed, it should be no greater than the cost of the Government’s proposals. Someone has to be responsible for ensuring that the trust assembles the facts of a case fairly and fully. Instead of it being someone within the trust itself, I am saying that it might be someone from another trust. The cost implications are surely de minimis. My amendments preserve the concept of independence, to be fleshed out in regulations, and they also preserve the necessary accompaniment to independence—the separation of fact-finding from fault-finding. The scheme itself covers both elements but the wording is designed to make clear that there are two separate processes—fact-finding and fault-finding—under the aegis of the trust and the NHSLA respectively. In another place, the Minister, Andy Burnham, conceded that the scheme would have to comprise de facto a two-stage process. I suggest, therefore, as regards this point, that there is not much separating the Minister and me. Indeed, one has only to look at Section 2 of the Inquiries Act to see that the separation of fact-finding and fault-finding is one that the Government accept as a way of achieving a ready separation between what is privileged and what is not privileged and as being conducive to achieving natural justice. Natural justice is what these amendments seek to achieve. I note that the Minister argues that this concern is out of place in the context of the redress scheme. I am sorry to hear him say that, because I disagree. It really is a question of patient confidence in the scheme. It is, I suggest, a nicety to point out that this is not a judicial process. Of course we agree that it is not a judicial process, but the patient will want fairness. I very much hope that the Minister can take these points on board and I look forward to hearing what other noble Lords have to say. I beg to move. Lord Hughes of Woodside: My Lords, I hesitate to intervene in this debate, since health matters are generally considered to be outwith the remit of Scottish Members. However, the issues of redress, and of confidence in the medical profession and the health trusts, are very important. I do not know how we will get that confidence. In all the cases I have dealt with in my years as a Member in the other place—and in some personal experiences, which I have related to this House before and will not repeat, as the issue is now resolved—generally speaking, people who do not have confidence in the system will never accept a decision that goes against them. That is the nub of the problem. I honestly do not know how one can get independence in the health service. The noble Earl suggests that someone from a different trust could be brought in. If my memory serves me correctly, this often happens with police authorities: a chief constable from one authority is brought in to oversee, or look at the problems in, another authority. What is the cry? ““You cannot trust the police to investigate themselves””. I suggest that exactly the same thing would happen in this case. It is quite wrong to sow the seeds of the suspicion that the medical profession cannot investigate itself. For my sins, I sat as a lay member of the General Medical Council on its old disciplinary committee. I was constantly told that, although I was a lay member and independent, I could not be trusted because, not being a medic, I would automatically accept the views of the medical profession. All I say in this debate is that we have come a long way with this Bill. I wish we could achieve an absolute guarantee of transparency, of fairness, and that in every case the right result would be achieved. What we can hope for from this Bill is that the progress made will lead to more satisfaction, less delay and better care of the patient. Baroness Murphy: My Lords, I was a strong supporter of this Bill at Second Reading. It is fundamentally worthwhile to get early resolution of these cases, keeping down legal fees and the frustration of patients. I have administered complaints systems in the NHS for the past 15 years or so. The problem has always been that when local resolution fails in-house, and goes on to the next stage of the convenor system, it is perceived by patients to be partisan. As one patient’s relative said to me: ““You think you are appealing to an independent person, and you get an answer on the headed notepaper of the organisation you are complaining about””. The system thereby encourages people to seek independent legal advice. Unless we have, in here, the principle that the fact-finding, at least, should be independent, we will not encourage patients to accept the fact-finders’ reports., We should remember that fact-finding is usually the most disputed part of the case. I know the Minister is concerned about the costs, but we do not yet have regulations worked out. There is everything to play for in the practical implementation of the scheme. We know that it is possible to set up panels of people from the local community to do a number of jobs around the NHS, very professionally, with the right support and training, without incurring costs. For example, people who serve on research ethics committees have to do very complex work for which they do not get a great deal of financial reward. They do it because the work is interesting. It can easily be worked out how these schemes could be administered so that there was an independent fact-finding element. We have heard of one possibility which I believe would be quite practical. In any case, fact finders will require training, and that will cost, whether it is done in-house or out of house. It is a detailed job that needs a lot of professional work, but it does not have to be expensive. This issue could be delegated to regulations but having an independent fact finder is such a fundamental principle of an effective complaints system that it should be in the Bill. It would add immeasurably to the confidence that patients have in the scheme, which is why I have added my name to Amendment No. 4A.