---

NHS Redress Bill [Lords]

The Minister is going back on himself in one respect, because the whole point of the scheme is that it should provide a genuine alternative to litigation. One key reason why people go to court is because they want to establish the facts in an independent manner. If this scheme is meant to be a genuine alternative to litigation, we should introduce that concept of independence in the scheme itself. Most organisations outside this place would agree with that. It is important to recognise that, if the scheme is an alternative to going to court, we should have regard to that basic need. Patients go to court because they want an independent assessment of the facts. I am afraid that the Government’s proposals fail to recognise that basic point. I suggest to the Minister that independence is important for another reason. We all want to help to bring about a cultural change within the NHS towards greater openness and transparency. What could be more open and transparent than inviting someone who is independent of the trust to oversee the investigation into all the facts? To most objective observers, a trust investigating itself will not necessarily lead to a cultural change. After all, that can happen now without the Bill: trusts can already investigate themselves and the NHS Litigation Authority can already make an offer of compensation. The Bill does not change that, yet the Government suggest that we need the scheme to encourage such a cultural change. By contrast, what seems to be more important to the Government—the Minister has been honest enough to admit this at the Dispatch Box, as he has before—is the ownership of the process itself. They freely concede that the scheme is not independent. As the Minister clarified, the amendment in lieu would not introduce the concept of independence in any way. The Minister argues that, if trusts have ownership, they will somehow be more likely to bring about a cultural shift in openness and transparency. Most people will find that entirely contradictory. The Government are trying to put the cart before the horse. NHS ownership of the scheme might be appropriate for a health system that is characterised by openness and transparency, but it will not in itself get us to that point, as history has shown. As we have heard, the Government wish to introduce elements of independence, rather than to embrace independence itself. It might be worth while for the House to scrutinise quickly those elements of independence. The Government suggest that legal advice will be available prior to any offer. We are happy with the concept of legal advice being made available at the time of an offer because legal rights would be considered at that point, but giving legal advice prior to an offer will not make the investigation of the facts independent. Such legal advice will introduce adversarial elements, even though legal rights are not being determined. It will cause a replication of the cost and complexity of litigation. The Government also argue that the scheme will make available expert advice, but such advice should be independent anyway. We do not need a scheme to make medical expert advice independent. Meanwhile, it is not clear whether medical reports will consider fact, fault, causation and condition, or whether they will be disclosed. The Government suggest that the fact that patients will be able to complain to the ombudsman is another important aspect of independence. However, that applies to complaints of maladministration, rather than substantive investigations of the facts. The Government also point out that, if patients are not happy with the findings of the scheme, the courts will be available. Perversely, that shows the failure of a scheme that purports to provide a genuine alternative to litigation. Advancing such an argument almost defeats the purpose of the scheme itself. Unless an investigation of the facts has a badge of independence to reassure patients, the scheme will add nothing whatsoever to what can already happen. As we have mentioned, NHS trusts already have the ability to investigate themselves and the NHSLA has the power to make an assessment of liability and, when appropriate, offer compensation. I put it to the Minister that, unless the Government concede on independence—I do not expect that they will—the Bill will be a wasted opportunity in many respects. I wish to touch briefly on separation because I think that it is relevant to independence. The scheme must be a two-stage process with a strict separation between the functions of fact-finding and fault-finding. An investigation of what happened should not be contaminated by considerations of who was to blame. There is ample legal authority for the rationale of such separation—the principle behind the Inquiries Act 2005 and the coroners’ courts—so it is happening throughout the country. There is also ample case law of the Court of Appeal that recognises the rationale for the separation of fact-finding from determination of legal liability. We envisage a wide-ranging inquiry that may consider matters of medical professional practice, but does not consider issues of legal liability. That limitation is appropriate because the inquiry is not a court: legal rights are not being defended or asserted. The Government appear to concede that there is, in practice, a two-stage process in which fact-finding and fault-finding are separate. In Standing Committee, the Minister said:"““The scheme, as envisaged, would separate fact-finding from fault-finding in that, locally, it is for the NHS body to carry out the investigation into the facts, and it is then for the scheme authority to consider whether there is liability and, if so, what it should be.””—[Official Report, Standing Committee B, 13 June 2006; c. 67-68.]" The Secretary of State made a similar point in this Chamber on Second Reading. Does the Minister stand by those remarks? Will he guarantee that there will be a separation of functions between the trust investigating what happened and the NHSLA considering issues of liability? Will he confirm that the body responsible for defending the NHS against claims—the NHSLA—will have no role in determining the facts of the case? I invite the Minister to respond now to those questions.