---

NHS Redress Bill [HL]

moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 8, leave out ““agree”” and insert ““disagree and do propose the following amendment in lieu””— 8B: Page 5, line 1, leave out paragraph (a) The noble Earl said: My Lords, I shall speak also to Amendments Nos. 9A and 10A. I should say at the outset that it is not my intention to press these amendments but I think that it is right to take a brief time to debate them. We need to hear from the Government in a little more detail why they have changed their minds about offering free legal advice throughout the redress process. I do not have, and never have had, a problem about free legal advice being available under the scheme at the point at which the NHS local authority comes forward with an offer. It is at that stage that the aggrieved person wishes to assess the adequacy of the offer and to weigh up the alternatives open to him if he decides not to accept it. To make those decisions, he needs legal advice. Perhaps more importantly, he needs legal advice on the implications of his accepting an offer from the NHSLA, because the acceptance of an offer brings to an end his legal right to pursue civil litigation on that matter. Clause 8 (2) covers that situation, and it is important. I have no argument with it. But here we find that in another place the Government have agreed to the insertion of Clause 8(1), which would apparently allow for a complainant to have access to free legal advice from the very outset of the redress process. That is a significant changeof mind. In Grand Committee, the Minister acknowledged that at the beginning of the process support to the patient would be provided by PALS and ICAS. I had reservations about PALS and ICAS and suggested that we might think about someone more akin to a Mackenzie friend to support the patient, but the one thing that neither the Minister nor I envisaged was the intervention of lawyers. There are two reasons why I am resistant to the presence of lawyers at this stage of the process. The first is cost. One reason why we all agree that we need to find an alternative to civil litigation is that it is costly to all concerned. Although the Government have not said it in so many words, they surely cannot be oblivious to the size of the legal aid bill associated with civil claims against the health service—it is enormous—yet here we seem to be reimporting one of the features of the current unsatisfactory system into the new one. The second reason that I balk at the amendment is that I cannot see why lawyers are necessary at this point of the process. The whole point of the redress scheme is that it affords a quicker, less cumbersome way for a patient to receive an explanation; where appropriate, an apology for treatment that has gone wrong; and, in appropriate cases, an offer of financial compensation. By making an application under the scheme, you lose none of your legal rights; you are simply making an application. The added value of a lawyer at this stage of the process is therefore unclear to me. I have heard the argument that, if you make an application under the scheme and have it rejected on the grounds that it is ineligible, you might need a lawyer to contest that decision. Again, I do not follow that argument. If an application is rejected on grounds of ineligibility, the reasons for the decision will presumably be given, and that is certainly a situation in which ICAS could be brought in to offer the patient appropriate guidance. But a rejection need not be the end of the road: civil litigation may still be open as an alternative. Once you import lawyers into this early stage, you introduce elements appropriate to an adversarial, judicial process. The redress schemeis not a judicial process, nor is it adversarial; it is essentially an offer-making process which is consensual. I have noticed in my time working on this Bill that there are only two groups of people who believe we need more lawyers for the NHS redress scheme—the lawyers themselves, and those with an interest in promoting the services of lawyers. It is unfortunate that the Government have allowed themselves to be beguiled into modifying the Bill in this way. I put it no stronger than that. In Amendment No. 10 we also see that the Government have changed their minds on the question of having jointly instructed medical experts. They were always in the Bill, but here we have a new subsection about joint instruction. Again, that concept introduces a dimension that we see operating in the courts. The redress scheme is not the same as a court. It is an executive process. A joint instruction implies that an adversarial tussle is going on. As I have said, I do not view the redress scheme in that way, and I did not think that the Government did either. What will be the status of the medical experts’ evidence? Will it be privileged, or will it be available to the patient at the end of the process? That is an important point. In our earlier debates the Minister was quite clear that some elements of the NHSLA’s deliberations would have to remain legally privileged. I am not sure whether the Minister has changed his position, but should be interested to know whether that is so. If he has not changed his position, I understand exactly why that should be. If the patient is party to a joint instruction it implies that he or she should be entitled to know what evidence is given as a consequence. I should be grateful if the Minister could elucidate a little further how he sees this provision working and exactly how it fits with the concept of the scheme as the Government envisage. I beg to move. Moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 8, leave out ““agree”” and insert ““disagree and do propose Amendment No. 8B in lieu””.—(Earl Howe.)