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NHS Redress Bill [HL]

My Lords, let me reassure the noble Earl that it is certainly not our intention to have free legal advice available at every stage of the proceedings. However, we recognise that in some cases legal advice may be necessary at an earlier stage, for example, when the services of jointly instructed medical experts are required. In these cases, it may be inappropriate not to offer appropriate legal advice, but without that provision the scheme is unlikely to gain the confidence of patients. I notice that the Liberal Democrats are not speaking on this Motion. I was pleased that Dr John Pugh said in the Commons Standing Committee that the Minister had confirmed that medical experts, where instructed, would be jointly instructed. It is imperative for any meaningful joint instruction of a medial expert that the patient has specialist legal representation. It would not be reasonable to expect a lay person to instruct a medical expert on such complex issues. The noble Baroness, Lady Neuberger, will be pleased to see this new accord between the Government and some of her colleagues on this aspect. We agree with that entirely. We have certainly not changed our minds in the area of reports. They will be made available, and there is no question of using the excuse of privilege in denying access to the views of the expert medical witness. I tried to make that clear earlier, but I may not have done so as well as I might. A claim for privilege to prevent disclosure to another party can be made if a document is a communication between a solicitor and a third party, which arises after litigation is contemplated and the purpose of which is to obtain legal advice. Where documents have a dual purpose the test is whether the dominant purpose of the document was for legal advice. Privilege cannot be claimed for an accident or investigation report unless the sole or dominant purpose for which it was prepared was for submission to a legal adviser for advice. In this case, the expert advice will be a shared appointment and what they say will be made available to both parties, so I do not think there is any question of doctors claiming privilege on that issue. I hope that that reassures the noble Earl.