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NHS Redress Bill [HL]

My Lords, I thank the Minister for the things he has said that have given us a degree of comfort. I speak on this amendment again, in sadness more than anger. This has been a long-running saga, as the Minister indicated, and I pay tribute to him for accepting that some level of independent oversight of the NHS redress scheme is necessary. He stated in terms back in February that the Healthcare Commission would make looking at how the scheme works part of its annual review,and he has repeated that today. The Healthcare Commission is regarded as independent, and that is good news. But as my noble friend Lady Barker said in further consideration of the Bill, and as the noble Earl, Lord Howe, said from the Conservative Benches in previous debates, this is still not enough. We accept that both sides can instruct an independent medical expert, but even that is not adequate when there is no clear fact-finding separate from the fault-finding. The Minister will forgive me if I go back to an earlier time in my life, when I was part of the advisory group that worked up the previous complaints system. We all, in good faith, believed that an in-house complaints investigation system could work. He will also know, because this will have landed on his desk now and in his previous incarnations, that we were wrong. As an NHS chairman, like the noble Baroness, Lady Murphy, I chaired a community health service NHS trust and had to sign off the letters responding to complaints. Very often, I felt that the trust had investigated itself fairly. Sometimes I did not. Either way, it was equally clear that the punters outside—the patients and their families—were dissatisfied because no one outside had had a proper look. I know the Minister will tell us that this would add hugely to the costs; he has already done so. Let me put it to him like this: whether investigation is done internally or externally, as the noble Baroness, Lady Murphy, has already said, someone has to be paid to do it. They also have to be trained and their activities monitored. Irrespective of being inside or outside the trust concerned, that is the case. If, for instance, non-executive board members from neighbouring trusts were to carry out and supervise the fact-finding, I cannot see why that would be more expensive than the board members or the employees of the trust itself doing so. Why does the Minister think that it would cost so much more when the amount of time spent on investigating complaints by the trust’s own staff is also considerable? It does not make sense to me. What does, however, make sense is that patients and their families have little faith in a wholly internal system of investigation of complaints. We were wrong when we thought they would have confidence, and we need to recognise that for what it is—a fact. Given that, surely the Minister can see some way to allow fact-finding before any assessment of fault, independent of the trust concerned. Surely he can see that it would be perceived as fairer by the patients and their families to go down that route. Given that the scheme authority is to be the NHS Litigation Authority—we all feel that it has a clear role to play here—it might be thought that a wholly internal investigation conducted by a trust, although at a distance under the NHSLA’s auspices, could amount to a conflict of interest. The NHSLA, as the noble Earl, Lord Howe, has already said, has legitimately to try and keep the lid on compensation payouts to the public. Many of us would say it was quite right that it should do so. That means, however, that it does not necessarily have the interests of individual patients close to its heart. However, if the NHSLA is the body that makes the offer but the investigation that went on before had an independent element within it, people might trust the system more. The non-exec route is one possibility, while groups like the people who serve on research ethics committees are another. That is still to be debated, and regulations are still to be written. The system might not then be seen to be unfair, with a trust likely—in people’s minds, at least—to exonerate itself, and a scheme authority wanting to keep the payouts low. The advantage of independent oversight of fact-finding also goes to the heart of the Chief Medical Officer’s original intention in Making Amends. He wanted to see the National Health Service become a learning organisation. If fact-finding is independent but it is people within the broader NHS family, such as those who serve on research ethics committees and other non-execs from neighbouring organisations, who discuss the matters with those they are investigating, there does not need to be an automatic blame culture. Things go wrong and mistakes happen, but they can be discussed within the organisationwith sympathetic but outside supervision of the investigation before the fault-finding even begins. In his consultation paper on the governance of doctors, Good doctors, safer patients, published last July, the Chief Medical Officer, Sir Liam Donaldson, put forward a two-stage scheme for investigating doctors. I quote: "““In serious fitness to practice cases … investigation … should be carried out by the General Medical Council but formal adjudication should be undertaken by a separate and independent tribunal””." That was clearly in reference to serious cases, but earlier in the same report he had argued that: "““As the complexity of both medicine and the system within which it is delivered increases, the General Medical Council cannot reasonably be expected to fulfil the roles of complaint recipient, processor, investigator, prosecutor, judge and jury. ""Involvement of a single organisation in all of these processes brings with it difficulties that are philosophical, presentational and practical””." I could not have put it better myself. What Sir Liam wrote may apply to medical regulation, but the principle applies to any scheme where one authority is to be in charge of both the investigation and the redress, hence our continued demand for an independent element in fact-finding and our desire for it to be seen as being separate from fault-finding. That is why we are back here at this stage, making the point yet again. The Government have accepted that this is a two-stage process. We know the scheme is relatively inexpensive; we all recognise and applaud that. Indeed, when we were originally told of the Bill’s arrival, we were all delighted. Such an attempt to help in cases of clinical negligence is long overdue. If it is to work, however, it has to have certain elements: independence—we have been arguing for it each time we have come back to this subject—sufficient for patients to trust the fact-finding involved, and it has to carry trust more generally. We are not alone. Just to make the point even clearer, the chairman of the Bar Council has written to me on the subject this very week. The very distinguished noble Lord, Lord Patel, who expresses his regret that he cannot be here, has written to me saying how strongly he supports the desire to have independence here. InterResolve has written about it. The noble Lord, Lord Hughes of Woodside, has made the point. It gives us no pleasure on these Benches to keep pressing for a reasonable level of independence in the scheme, and it gives me no pleasure to say that the NHS Litigation Authority on its own will not be seen as independent as the scheme authority without an independent element in fact-finding. The Healthcare Commission’s oversight and the responsibility of Ann Abraham as the ombudsman give us some comfort, but that is not yet enough. I hope the Minister will see his way to accepting that this amendment and those that go with it are intended to bring some public trust to this scheme, and that he will recognise that it is not that expensive. The costs do not need to be huge, as the investigation has to happen anyway. We all want to see a good, solid, trusted NHS redress scheme. I hope the Minister will give us the assurance that we can have some real independence in the fact-finding in this process.