NHS Redress Bill [Lords]

Public Bill Committee, 13 June 2006.

Standing Committee B

Anne Begg (Labour, Aberdeen South)

I remind the Committee that there is a money resolution in connection with this Bill, copies of which are available in the room. I should also like to remind Members that adequate notice should be given of amendments. As a general rule, my co-Chairman and I do not intend to call starred amendments. Please will all Members ensure that mobile phones, pagers and so on are turned off or in silent mode during our sittings. It will be in order for hon. Gentlemen and hon. Ladies to remove their jackets if they so wish. I was going to be cruel and make them sweat through the summer months. It is a bit cooler today, but I suspect that it will get quite warm. The debate on the programme motion may continue for up to half an hour. I call the Minister.

Andy Burnham (Labour/Co-operative, Leigh)

I beg to move,

That—

(1) during proceedings on the NHS Redress Bill [Lords] the Standing Committee shall (in addition to its first meeting at 10.30 a.m. on Tuesday 13th June) meet—

(a) at 4.00 p.m. on Tuesday 13th June;

(b) at 9.00 a.m. and 1.00 p.m. on Thursday 15th June;

(c) at 10.30 a.m. and 4.00 p.m. on Tuesday 20th June; and

(d) at 9.00 a.m. and 1.00 p.m. on Thursday 22nd June.

(2) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 4.00 p.m. on Thursday 22nd June.

May I begin by welcoming you to the Chair,Miss Begg. It is a pleasure to serve under you. I am glad that we can get off to an agreeable start and that it will not get too hot in the room. We had a good debate on Second Reading. The Bill received broad support from across the House. I hope that the time we have allotted in this programme motion will allow members of the Committee to cover the detail in full because we do need to do that. I also welcome the hon. Member for Billericay (Mr. Baron) and the hon. Member for Eddisbury (Mr. O'Brien), a fellow north-west Member. I see the hon. Member for Southport (Dr. Pugh) too, so it is quite a north-west triumvirate.

I was grateful to both Opposition Front Benchers for their support on Second Reading. I think that it indicates broad assent to the principles of the Bill. That is not to say that there are not issues of substance that we will want to consider carefully, but I think that we have allotted sufficient time for our debates. May I welcome particularly the hon. Member for Romsey (Sandra Gidley)? She and I served on the Health Committee what feels like many years ago. I am pleased to be working with her again on this Bill.

I should like to say a word about Labour members of the Committee, particularly my hon. Friend the Member for Birmingham, Erdington (Mr. Simon), who works closely with the organisation Action against Medical Accidents. I am pleased that he is serving on this Committee. We look forward to his contributions. I hope that where there may be differences of emphasis between us we can work through them in a spirit of co-operation and agreement, as is normally the case with my hon. Friend. I am trying to emulate his style: I may grow my hair as long his, although it may soon be ruled out of order.

There are Members on both sides of the Committee who take a detailed interest in this subject. As I said on Second Reading, Members of Parliament gain expertise and knowledge of it through their efforts to help constituents along the difficult road towards a resolution and, dare I use that word, “closure” of their experience in the health service. We know how difficult that road can be at times. We know the obstacles that can be thrown in front of people seeking redress. I hope that in making our comments we can reflect on the experiences that all of us have had cause to work through. I hope that the Bill will benefit from that informed comment.

Finally, I pay tribute to the usual channels in scheduling our eight sittings. I was relieved to see that careful attention had been paid to proceedings in Germany. I am delighted that we should be able to get out in good time for kick-off on Thursday and then again next Tuesday. I do not know whether it had more to do with luck or good planning. My hon. Friend the Member for Ogmore (Huw Irranca-Davies) is a fiery Welshman, so perhaps he thinks that we will leave the Committee for a dose of disappointment. He has helped to make me feel happy, relaxed and without needing one eye on kick-off time, which should aid our proceedings.

We have an excellent Committee of Members with a broad range of experience across the health service and in the matters to be considered. We have given sufficient time to do justice to the complex issues involved, which are important to our constituents.

John Baron (Conservative, Billericay)

I also welcome you to the Chair, Miss Begg, and I look forward to your chairing the Committee as it proceeds. I thank the Minister for his kind words. As for the football arrangements and whether they were a matter of planning or good luck, I suggest that they were one of planning on our side, and good luck on his, but the bottom line is that we have got there anyway.

I shall say a few words of overview of the Bill. It stands as we like it, as the Committee knows. I thank their lordships, in particular my noble Friend Earl Howe on behalf of my party and Baroness Barker and Baroness Neuberger, who speak for the Liberal Democrats, for their amendments, as a result of which we have a much improved Bill before us. Our position is clear: we would like it to be left as it is, because we believe it to be far improved from when it was first brought to the House of Lords in October.

The Minister talked about consensus, of which there was a great deal on Second Reading. The Government know that the Opposition support their attempts to address the problem of clinical negligence litigation. The process is currently complex, costly and long drawn-out. Most clinical negligence cases are funded by legal aid, yet most fail, at great expense to the NHS and the taxpayer. That money could better be directed towards patient care. However, most people do not qualify for legal aid, so they want a credible and independent alternative to going to court. The NHS redress scheme could offer that alternative. The fundamental divide between us and the Government is that, whereas the Secretary of State and the Minister envisage a scheme that would effectively make the NHS judge and jury in its own cause, we believe that investigation of what has gone wrong in a case ought to be separated from the process of the NHS assessing its own liability and making an offer.

What is more, the investigative process must be independent, like the coroners’ courts and the system provided by the Inquiries Act 2005. As the Government intend to reverse our key amendments made in the Lords, I shall ask the Minister to justify removing from the new scheme the essential feature of independence, which has the support of the Law Society and Action against Medical Accidents. I shall also ask him to explain both how his arrangements will create independence and the costs that he has attributed to our scheme, which seem to be the Government’s only main argument against it. They suggest that increased costs are the reason why we should not proceed with the Bill in its present form.

As can be seen from our amendments, I intend to focus on the key parts of the Bill, particularly clauses 6 and 12. Their lordships did an excellent job through their probing amendments, and the arguments that were made are on record, so I do not see why we should repeat them here. I hope that the Minister will be generous in taking interventions so that we can have a meaningful debate, to which I look forward.

Sandra Gidley (Liberal Democrat, Romsey)

I, too, welcome you to the Chair, Miss Begg. I also welcome the Minister to the consideration of his first health Bill. I do not know whether it is worrying or reassuring that we have a Minister with experience in the field of health, but I look forward to working with him. I do not intend to repeat what has been said, but I endorse the remarks by the Conservative Front-Bench spokesman. Our two parties did work very closely together in the Lords and we prefer the Bill in the shape it is in. Ultimately we all want to see a better system for patients. Although we differ on the way forward, it would be nice to think there was some consensus as I gather that those in the other place are very keen to keep what they now have. Any flexibility on behalf of the Government would be very welcome.

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move amendment No. 10, in clause 1, page 2, line 6, leave out subsections (6) and (7).

Anne Begg (Labour, Aberdeen South)

With this it will be convenient to discuss amendment No. 11, in clause 1, page 2, line 26, leave out ‘or (7)'.

Sandra Gidley (Liberal Democrat, Romsey)

On Second Reading we raised concerns that the Bill deals exclusively with the secondary care sector. Despite Government assertions to the contrary, there is no good reason why any part of the health service should be excluded from these provisions. This is particularly so because over the last few years there have been significant changes in the way many health services are delivered. Now, many services that used to be the preserve of the hospital sector—the secondary sector—are being delivered in primary care settings or even at home. The latest Government White Paper endorses the move to care in home-based and community-based settings.

As there is so much churn in the system, boundaries between secondary and primary care responsibilities are increasingly becoming blurred. For example, some treatment could be initiated by a doctor in a hospital but delivered by nurse practitioners or doctors in the community. The argument has been made that doctors have professional indemnity insurance, but it is not quite so clear cut for other members of the health care team who work across the boundaries of primary and secondary care. It is difficult to see where they slot neatly into the picture.

The amendment will make life easier for the Secretary of State if she decides that the Government have got it wrong because it will enable the redress scheme to extend to primary care by means of regulations as opposed to primary legislation. This takes into account the complications involved in extending the scheme to primary care.

Bearing in mind the Government’s long-term aim and the churn in the system, it would seem sensible to facilitate any future change rather than say we will sit back and review it and in three years’ time think about whether we need any more secondary legislation. The majority of NHS care is provided as primary care, and to exclude patients harmed by NHS primary care from the redress scheme would be unfair and inconsistent.

The amendment allows the Secretary of State to introduce the redress scheme in stages. For example, it could at first apply only to hospital care but be extended to primary care later, without having to go through primary legislation. If the Government saw that there were problems with the implementation of the scheme, the amendment would enable the problems to be redressed fairly quickly.

There would also be advantages for GPs and other primary care practitioners in bringing them within the scheme. In the current system, for example, injured patients have no option if they wish to obtain compensation for negligent treatment by a GP other than to sue that individual GP. A lot of patients find it difficult to take action against a GP because the GP is generally the health practitioner with whom they have built up a relationship and have the greatest contact. It is also very stressful for a GP to be sued—more so than if they were covered by an NHS indemnity, like hospital doctors are.

To extend the scheme to primary care is also more in keeping with the policy of moving away from a culture of individual blame to corporate accountability. There is also an issue about the GPs paying their premiums to the medical defence unions. Some of the medical defence unions are against the extension to primary care, and one wonders if there is a slight vested financial interest in that objection. In many ways, this is a probing amendment to extract from the Minister further clarification of how the success of the scheme will be reviewed and what the likely timetable for change will be.

John Baron (Conservative, Billericay)

I listened with care to the hon. Member for Romsey. The trouble that we have with the amendment is that it proposes such a fundamental extension of the scope of the redress scheme that it requires a review by Parliament. If the amendment were allowed to proceed, it would in effect extend the redress scheme to primary services by secondary legislation. We have two concerns about this.

Most care is delivered as primary care, so restricting the scope of the redress scheme to secondary care is to agree to a de facto pilot scheme. It could be argued that extending the scheme to include primary care would be too big a step too soon, given that we do not know how the redress scheme in its present form will work.

There is also an issue about organisation. We know that the NHS Litigation Authority is primarily concerned with secondary care and that medical defence organisations such as the Medical Protection Society and the Medical Defence Union are concerned with primary care. By extending the Bill one could envisage organisational difficulties. In summary, I would suggest that the amendments are a little bit too much, too soon.

John Pugh (Liberal Democrat, Southport)

Does the hon. Gentleman accept that the boundary between primary and secondary care is increasingly going to be blurred? The Government are talking about courses of treatment based on tariffs that are going to be unbundled and distributed between primary care and secondary care providers. When treatment turns out wrong, will we take action about only one section of the treatment?

John Baron (Conservative, Billericay)

I accept that. It is a valid point. Increasingly the emphasis in health care—this view is shared on both sides of the House— is on looking at the patient journey as one and bridging the gap between health and social care. There are so many unknowns in the operation of the redress scheme as presently constituted. This is an enabling Bill with very little detail and to extend it to the whole of the NHS would be a step too far too soon at this point. Let us see how the redress scheme operates first in a de facto pilot scheme and we can review the situation in the years to come.

Andy Burnham (Labour/Co-operative, Leigh)

I am not unsympathetic to the points that the hon. Member for Romsey made; I said as much on Second Reading when she raised this point. She is right that the proposal very much picks up the direction of travel within the health service towards more care being delivered closer to people’s homes and, where possible, in primary care facilities. She is not wrong and nor is she wrong to raise the issue about boundaries becoming increasingly blurred, but I will deal in detail with these points. Although I do not have a closed mind on this issue, I think that now would be the wrong time to broaden the scope of the scheme in the way that the hon. Member for Billericay suggested.

Sandra Gidley (Liberal Democrat, Romsey)

I understand what the Minister is saying. Who will be to blame where a mistake has been made that is partly the result of an error in a hospital sector that was not picked up by somebody in the primary sector? Will any individual who suffers ill effects or has to have time off work as a result of that error have to sue their GP? Will they have to go through the NHS redress scheme? In those cases, how are the two sectors to work together?

Andy Burnham (Labour/Co-operative, Leigh)

The case would be picked up by the scheme if the care had been commissioned and provided in a secondary care setting. I am acknowledging that she is right that there may be blurred boundaries. Clause 1(5)(b) contains a provision to lay out in regulations some of those blurred boundaries and to give some clarity via secondary legislation. That is important because, as things change, it is important to have the ability to respond quickly via secondary legislation.

I want to draw the hon. Lady back to the principle. While I am not unsympathetic, the way in which this scheme is constructed has more to do with the structure of the national health service since it began, and the status of primary care practitioners as independent contractors to the service. At present, the way in which litigation is handled by the national health service is considered separately. As the hon. Member for Billericay was saying earlier, the amendment would broaden the scope of the scheme enormously, but it would be a mistake to do so. The amendment would take us into a whole new terrain, where the national health service would pick up—via a fast-track out-of-court settlement scheme—the liabilities of primary care practitioners who, as the hon. Lady rightly said earlier, are currently covered by personal indemnity insurance. So that would be a major change.

Let me go through some of the issues in detail so that I can directly answer some of the hon. Lady’s concerns for the record. Amendment No. 10 would widen the potential scope by removing a specific exclusion laid down in the Bill. During a debate in the other place, concerns were raised that the scheme was incapable of adapting to the increasing diversity of NHS health care provision. We acknowledged that some services could be in a grey area between primary and secondary care, especially as the NHS moves towards provision of traditionally secondary care in a primary care environment.

We tabled a series of amendments to clause 1 which would enable us, via secondary legislation, to list services outside hospitals that the scheme may cover. This gives us flexibility and allows the scheme to be adapted in the light of changing methods of service provision and delivery.

We consider it appropriate to set out in secondary legislation details of which hospital services should be designated as qualifying services for the purpose of the scheme. Our intention is that the power may be used to cover the kind of services usually provided in a hospital. For example, pathology and laboratory services can now be provided either in hospitals or in freestanding mobile units. Other examples of services that can be provided in hospital but in future may be provided more frequently outside the hospital setting are palliative care and ambulance services. So there is a broad area that secondary legislation can begin to be specific about. We think that that is the right way to structure the Bill at this time.

I understood the hon. Lady’s point about the relationship between the GP and the individual patient and the stress that can be caused to both parties when an individual makes a complaint against a GP. It is a valid point and one that has been made by Action against Medical Accidents—AvMA—in its documentation. That is the kind of point that we would want to consider in more detail once the NHS redress scheme had been operating for some time; we would look at whether there was a case for extending its reach.

However, we remain convinced that primary care should remain excluded from the scope of the scheme and therefore we will oppose amendments Nos. 10 and 11. Extending the Bill to include primary care wholesale would be problematic because professionals cover their liability through private insurance arrangements, rather than through NHS indemnity insurance. Moreover, further consultation would be needed to develop a scheme that worked effectively in primary care and had the confidence of primary care professionals and insurers. The redress scheme has been costed only for NHS clinical work covered by the clinical negligence scheme for trusts.

The cost of including primary care within the scope of the Bill has been modelled by departmental economists as up to an extra £56 million per year. We are not resisting the amendment because of that cost—there may be good reason in future to accept that cost as a better way of providing redress in the primary care setting—but it is obviously a relevant factor at this point. As it is likely that any claims emanating from a primary care setting would be of lower value, given the nature of the procedures that are carried out at that level, it would raise bureaucratic questions about the level at which primary care practitioners, as opposed to a hospital trust or a primary care trust, were required to pay to become a member of the scheme.

Sandra Gidley (Liberal Democrat, Romsey)

The Minister is rightly focusing on the financial aspects, but a big part of the thinking behind the redress scheme is that there is proper investigation and perhaps an apology or an explanation is offered to the patient. If a patient in primary care still has to go down the route of suing a GP, what do the Government plan to put in place so that the same sort of open culture—the willingness to be open about mistakes and to prevent future occurrences of such mistakes—can be achieved in primary care too?

Andy Burnham (Labour/Co-operative, Leigh)

The hon. Lady raises an important point. The Government already have in place mechanisms to ensure that best practice is shared across the NHS and that there is a culture of openness. The National Patient Safety Agency, for instance, is heavily involved in work in this area. I agree with her. The outcome that she wants is desirable. I hope that the NHS redress scheme will have an influence beyond the number of people who come through the scheme, and will change attitudes and the culture in which problems are investigated by the health service at all levels. I hope that it will have an impact at an earlier stage—at the patient advice and liaison service stage—and further on in the process, too. It would be a positive change and we would want to see that spirit going through the whole system.

I agree with the hon. Lady’s objective. It is an important one to keep hold of. The vast majority of general practitioners do this very well and have clear procedures for handling patients’ complaints. Those procedures are used properly at the local level, with the involvement of the primary care trust. It is therefore not the case that there are no procedures in place: there are, and the vast majority of general practitioners use them successfully and to the satisfaction of their patients. I do not disagree that we can always try to improve the situation.

John Pugh (Liberal Democrat, Southport)

Will the Minister help me with the economic modelling? Presumably a certain amount of litigation is taken already against primary care providers. Has that been factored into the calculations? Is the cost that he mentioned purely additional cost?

Andy Burnham (Labour/Co-operative, Leigh)

I will have to come back to the hon. Gentleman on that point. My note on the work that has been done by departmental economists describes the cost as being £56 million a year. I do not know whether that figure is based on the knowledge that more claims would come forward if there were such a scheme for primary care, or whether it is based on the current number of complaints. The estimated cost would be additional to what is currently spent, which suggests that the consideration of the figure has taken on board complaints that may not have been pursued if there were no such scheme.

John Pugh (Liberal Democrat, Southport)

So is there no presumption implicit in the figures that people who currently litigate will transfer to the redress scheme, and so save the NHS money?

Andy Burnham (Labour/Co-operative, Leigh)

The presumption behind the figures is that it would cost an extra £56 million a year if there were such a scheme in place for primary care. Currently, cases are handled outside the NHS. An individual practitioner has his or her own professional indemnity insurance, and the arrangement exists outside the NHS. If a redress scheme covered primary care, it would absorb the cost.

As I said in response to the hon. Member for Romsey, we must consider the way in which general practitioners would be charged to be scheme members and what a fair structure would be. There would have to be different mechanisms in the scheme for big providers, such as acute trusts, and smaller providers. It is not appropriate to introduce that sort of administrative detail into the Bill. I do not rule it out in perpetuity, but at this stage it is important to establish a viable scheme that can do the job that we want it to do and that does not bite off more than it can chew. Covering primary care would need careful consideration and consultation with professional bodies, which has not yet happened.

Clause 1(6) provides that primary medical services, primary dental services, general ophthalmic services and general and local pharmaceutical services will specifically be excluded. That will avoid the problems involved in extending the scheme to cover primary care wholesale. We have not allowed flexibility in the matter, because as the hon. Member for Romsey will know, the Delegated Powers and Regulatory Reform Committee does not like Ministers to take broad powers when they have no immediate intention to use them. It is right for the Bill to limit the reach of the scheme.

The hon. Lady asked for a timetable. Our intention remains that the scheme will be reviewed three years after its implementation, with a view to considering whether to expand its scope to cover primary care. As she can see, that would require primary legislation. I put it to her that it would be a major change and would require a major round of consultation with the British Medical Association, the Royal College of General Practitioners and other interested parties. All the administrative arrangements would then need to follow.

The scheme that we propose is the right one at this stage, and I hope that I have given the hon. Lady some encouragement by promising a review and saying that there may come a time when a future Government believe that a scheme covering primary care is the right way to go. Such a decision would probably arise from the scheme being set up successfully, establishing itself and doing the job for patients that we want it to do. Once that has happened, the argument for its reach to be broadened across the health service could be made. That is the right way to approach the issue.

I hope that the hon. Lady will see fit to withdraw her amendments.

Sandra Gidley (Liberal Democrat, Romsey)

I thank the Minister for his comprehensive response. There are many complexities involved in including in the scheme people who are perceived as employees of the NHS but are actually contractors of it, so I understand the reluctance to include GPs at this stage. My concern was more connected with the other health professionals who deliver health care across the boundaries of primary and secondary care. As the Minister assures me that subsection (5)(b) will get round that problem and that the situation will be under constant review, I beg to ask leave to withdraw the amendment.

Clause 3

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move amendment No. 15, in clause 3, page 3, line 4, at end insert—

‘(d) the production of a report on action being taken to reduce the risk of similar errors being repeated'.

Anne Begg (Labour, Aberdeen South)

With this it will be convenient to discuss amendment No. 18, in clause 6, page 4, line 17, at end insert—

‘( ) about the provision to a person seeking redress under the scheme of a report on the full findings of any investigations into an incident which is the subject of proceedings under the scheme and assessments of liability in tort under the scheme'.

Sandra Gidley (Liberal Democrat, Romsey)

The stated aim of the Bill is to ensure not just that there is financial compensation but that patients receive a proper report of what has gone wrong and that they are clear about what actions are being put in place to ensure that the same mistake is not repeated. On Second Reading there was consensus among hon. Members from all parties that if the problems that came to the notice of a constituency MP were investigated sooner and taken more seriously, if apologies were made and the patient was reassured that something was happening to prevent further mistakes, life would be much simpler, for the constituent’s MP if for nobody else.

Research has shown that most people’s motivation is to ensure that mistakes are not repeated. It is sometimes frustrating to receive a bland response saying, “Yes, we have got an action plan in place, so you can be reassured that this will not happen again.” Health professionals are not always open about sharing that action plan with others. That is the area that the amendments seek to address. Amendment No. 15 would make it a requirement that the provision of assurances that lessons have been learned and action will be taken to reduce the risk of errors being repeated is an essential part of the redress package. At the moment, it is not clear that that must happen. To our way of thinking, it is a fundamental part of the review.

I gather that there are plans for an annual report that will be anonymised. That is not enough for the individual patient who, having brought a complaint, wants to be absolutely clear that action is being taken in their local area, that they know what that action is and that there is openness and transparency about the process.

The Bill does not require any reporting of the results of investigations or assessments of eligibility for redress under the scheme. Only an offer of redress, apology and explanation is required for people who are assessed by the scheme as being eligible for redress. Those who are assessed as ineligible may get nothing at all. In order to make a decision as to whether to accept an offer of redress or accept an assessment of being ineligible for redress, it is important that the patient has the full facts and rationale for the decisions made. That is in the spirit of openness that the National Patient Safety Agency is trying to foster. It would clearly be unfair and unreasonable for such information to be withheld. It would seriously undermine the credibility of the scheme and the culture of openness that is aspired to.

John Baron (Conservative, Billericay)

We have a lot of sympathy with amendment No. 15. However, clause 10(2)(i) refers to reports being produced and to lessons learned. Having said that, the hon. Lady has made a powerful case for amendment No. 15. The bottom line is that research has clearly shown that when something goes wrong, what patients want is often only an explanation, an apology and an assurance that the lessons have been learned. Compensation does not necessarily rank high on their list of priorities. Many patients just want to know that what happened to them will not happen to other patients in the health service. It is almost an altruistic approach: they are keen that lessons are learned for the benefit of others.

The open, independent fact-finding investigation that we propose reflects those priorities. Patient safety is promoted by ensuring that lessons learned are not lost. Amendment No. 15 reinforces that point and asks that a report be produced. Although, as I mentioned, reports are required in other clauses in the Bill, an individual report—rather than the annual report envisaged in clause 10—may be a worthwhile step.

It appears to many that the Government’s focus in the Bill on compensation does not reflect patient priorities. In some respects, their focus may subvert the purpose of the investigation. It also means that the importance of the explanation and any lessons learned risk being relegated. The production of a report based on an individual case may rebalance the situation somewhat. So I wholeheartedly concur with amendment No. 15 and am happy to support it.

I have more of a problem with amendment No. 18. The system in the Bill separates fact finding from fault finding. At the end of the fact finding, patients are at liberty to accept an offer from the NHS Litigation Authority, as determined by its internal procedures, or to go to a resolve-type scheme, to mediate in some other way or, as a last resort, to go to the courts if they wish to seek compensation. The crucial matter is that the facts, not the fault, are what is important under the scheme. In such circumstances, the report would not ordinarily be available. That is the way in which the law works. So, I am somewhat indifferent to amendment No. 18.

John Pugh (Liberal Democrat, Southport)

I will speak briefly in favour of amendment No. 15. It is, to some extent, pushing the envelope because it extends the giving of redress to include a report on similar cases and changes being put forward by the hospital to stop similar errors occurring. I can recall many cases to which the amendment would apply. My reason for supporting it goes back to a particular case in which an elderly gentlemen who was very ill—he subsequently died, although that had nothing to do with this episode—was asked to walk when he arrived at hospital because there were not enough wheelchairs. He had a very painful experience, when he should have been whisked into hospital in a wheelchair.

I was contacted by the family. It was perfectly apparent that they did not want money or any redress for their father, who was by then deceased. Nor did they want heads on the block. They just wanted to know that no such thing would happen again. When I investigated the matter, I found out anecdotally that there were enough wheelchairs in the hospital, but they were in the wrong places. In some cases, wheelchairs had been taken incorrectly by members of the public. There was something to be learned from the episode. The redress that the family wanted was that the message had gone to the hospital that this sort of thing should not happen again.

It is not my job to point out weaknesses in the amendment, but one weakness is that in some cases there will be no lessons to be learned. There is human error even in the best-designed schemes, procedures and protocols. People will ignore protocols or fail to carry out a scheme effectively. The amendment has force and it should be in the Bill.

Siôn Simon (Labour, Birmingham, Erdington)

It is a pleasure to serve under your chairmanship, Miss Begg.

I support amendment No. 18 and I agree with the two reasons given by the hon. Member for Romsey why the publication of a report makes sense. First, it will help those who may turn out to be entitled to redress to evaluate whether the redress offered is in their interests, and it makes sense for them to be provided with the full facts. Secondly, and more important, as the hon. Lady said the amendment is for those who may be deemed by any process to be ineligible for redress. It seems unlikely that those people are random strangers to whom nothing bad has happened who have walked in off the street and started claiming excessive amounts of compensation from the national health service.

At the very least, the people concerned must feel a strong sense of grievance. A report is all the more important if they have gone through a procedure and been told that, despite their strong sense of grievance, they are not eligible for redress under the new scheme or, presumably, under law. In those circumstances, it is all the more important that they be provided with a report that gives the facts and the outcome of the investigation, tries to lead them to an understanding of why their sense of grievance was objectively deemed to be misplaced and tells them why they are not entitled to the redress to which they felt they were entitled.

The Government should have a very good, strong reason not to give people simple information about what has happened to them and I hope that the Minister will be able to enlighten us in that respect. The amendment simply calls for the publication of a report, which should be available to the people who have been part of the process. To borrow and cross-apply a parliamentary phrase, a negative resolution or assumption should pertain in this case. There must be a very good reason indeed not to do what the amendment proposes, and I shall be grateful if the Minister will tell me what it might be

Andy Burnham (Labour/Co-operative, Leigh)

I understand where the hon. Member for Romsey was coming from in tabling her amendment. I also want to pick up on the closing comments of my hon. Friend the Member for Birmingham, Erdington. I accept that in many cases people do have a strong sense of grievance, and it still exists even if the scheme or the procedures that are in place have not been able to resolve it financially or to apportion liability. It is important to address the legitimate questions that people raise, but I do not think that anything that we are proposing rules that out. In fact, it facilitates precisely that process and enables people to have a greater sense that their complaint has been properly investigated and addressed. The hon. Member for Billericay was absolutely right to say that the vast majority of people who come through the doors of our surgeries say something along the lines of, “I don’t want it to happen to anybody else” or, “I want to be sure that this cannot happen again”. Although they have felt personal confusion and distress, the overriding motivation is that what happened to them be exposed and that changes are made to the system so that the same thing does not happen to somebody else.

The way in which the Bill is drafted facilitates that process. The Bill does not need to lay down that a report has to be produced. I would refer the hon. Lady and hon. Members to subsections (2)(a) and (b). Obviously the giving of an explanation is in itself the preparation of a report. It might not be as formal as a report, but the giving of an explanation is essentially reporting on what happened, and that is clearly laid out in the Bill. The phrase “ordinarily to comprise” is used in clause 3(2), which lays down that that should be a matter of course.

One of the important benefits which the scheme is intended to provide is an improvement in the ability of the NHS to learn from its own mistakes. I do not believe that amendment No. 15 is necessary in order to achieve that. As others have said, the spirit is that complaints should be investigated before they are even brought by the patient and that there should be an open culture rather than a back-foot or a defensive culture. The Bill will deliver precisely that.

Sandra Gidley (Liberal Democrat, Romsey)

I agree entirely with the Minister that the Bill says:

“A scheme must provide for redress ordinarily to comprise —

(a) the making of an offer of compensation in satisfaction of any right to bring civil proceedings in respect of the liability concerned,

(b) the giving of an explanation, and

(c) the giving of an apology,”.

The point of the amendment is that we need to go a step further. The hon. Member for Billericay said that people often say, “I do not want this to happen to anybody else”. That is not addressed in the Bill. Patients often feel it is important to know exactly what measures are being taken to ensure that the mistake does not happen again. The Bill does not deal with that in the way that a modern NHS should.

Andy Burnham (Labour/Co-operative, Leigh)

I am sure that the hon. Lady will, like me, find that every case is different and that some have more merit than others. With regard to amendment No. 15, we agree that it is important that the facts are established and that they are reported to the individual; that the individual can comment on those facts and endorse them. She will agree that it is often a process of working through the individual, whether or not they accept the facts of a particular incident. The hospital comes back to them when the complaint is at the first stage. That is often the process—there is a to-ing and fro-ing about whether the “facts” themselves are correct. The hon. Lady is absolutely right, it is important and there must be that process so that people can have confidence in the facts.

I do not think it necessary to formalise that in the primary legislation in the form of an individual report on every complaint that is brought. It seems to me that it would place an administrative burden on members of staff within the health service to require them to produce a report when the Bill itself says that the giving of an explanation is in itself a report on a particular incident.

Sandra Gidley (Liberal Democrat, Romsey)

The giving of an explanation may make clear what happened, but there is no compulsion to explain what measures will be taken to ensure that the mistake does not happen again. I accept the argument that one does not need to make a procedural change in every case. There is human error, but sometimes there are also ways in which human error can be factored out. Will the Minister consider a clause that would allow a patient to ask for an action plan or a report on what measures were being taken to prevent further recurrences? The patient should have access to such a report or plan if that is their prime motivation for bringing the complaint in the first place.

Andy Burnham (Labour/Co-operative, Leigh)

I agree that not every case will require procedural change or throw up issues of process that the hospital has to address. In my experience, that does happen, but not in every case. For precisely that reason, the Bill was amended. Clause 10(2)(i) contains a commitment to produce a report. In cases that are out of the ordinary and throw up issues that, as the hon. Member for Southport said, involve genuine human error, an apology can be made and we can make reparation. We hope that everybody will then want to move on from that unfortunate experience. Clearly, other cases will throw up questions about a whole hospital process or clinical system and we want to be sure that information about those cases is disseminated, publicly available and digested, and that changes are made. Clause 10 will enable that process to take place without imposing the unreasonable burden of requiring every complaint to be followed by an individual report.

Graham Stuart (Conservative, Beverley and Holderness)

I feel that the Minister and the Government risk missing an opportunity here, and I am sure that some Labour Members feel the same way. The Minister has explained very well the process that he feels that his constituents go through, which is reflected in his experience at his surgeries. One of the driving forces for a patient who feels he has been wronged is a desire to see change to ensure that the error does not happen again. It seems a mistake not to ensure that the patients themselves feel that they can see change in the form of a report.

One of the reasons for the Bill is that, too often, the NHS is defensive and gives the impression that it is reluctant to apologise or to accept change. This is an opportunity to make patients feel that they are creating change. If they do not feel that their complaint has been properly taken on board or they do not see a report of change, they may be more likely to go to court once they have established the facts rather than to accept this redress scheme. There is a possibility that the Minister has missed an opportunity here.

Andy Burnham (Labour/Co-operative, Leigh)

I understand the reasonable points that the hon. Gentleman is making. I fully respect the argument that he just put forward. Of course it would not be right if the scheme were just a fast-track compensation scheme or an explanation scheme whereby complaints were quietly put on the shelf, everybody forgot about them and people were slightly let off the hook. We are trying to create a scheme that allows accountability and properly opens up whether there has been poor practice or whether there are defective procedures. The scheme has to be balanced. It should not be unduly administrative or bureaucratic, but should be able to deal with issues speedily and properly and then report on them. In response to amendments, the commitment was given that an annual report should be published, the purpose of which is to differentiate those cases that she is talking about from others that do not carry the same significance.

Sandra Gidley (Liberal Democrat, Romsey)

Although the idea of the annual report is welcome in many ways, somebody who is trying to come to terms with something that has happened to them could be waiting a long time before they gain access to that report. In order for an individual patient to move on and put an incident behind them, it could be important to have the facility to request an explanation of what happened and an action plan to prevent it happening again. So I revert to my previous question. Will the Minister consider a clause or a scheme by which an individual could ask for an action plan if they felt that it was important to them? It would not create a bureaucratic burden in every case, but it would help those patients for whom that was the prime motivation in bringing a case.

Andy Burnham (Labour/Co-operative, Leigh)

That is largely what happens in the health service at present. I understand what the hon. Member for Birmingham, Erdington said about the strong sense of grievance, and I always pursue cases. Most of us do that—we do not give up on the case because we were not on the receiving end of it. People who feel motivated to keep coming through the doors of our surgery obviously have unresolved issues that need to be dealt with. I fully believe that good practice in the NHS means a direct confrontation between the service and patients, often face to face, through a meeting with a senior clinical director or the chief executive so that the issues can be unlocked.

In my experience, if people are clear about what they want and what was wrong in their case, the national health service is good at responding. I am not disagreeing with the hon. Lady. I am resisting placing in the Bill a requirement to produce a report on each complaint handled by the NHS redress scheme that would lead to lessons being learned and action being taken. I do not think that that is appropriate for a scheme of this kind. As the hon. Member for Southport rightly said, many cases will arise from human error, a basic mistake or a very complicated set of circumstances that is extremely unlikely to happen again. There would not be any merit in such a report.

Mark Fisher (Labour, Stoke-on-Trent Central)

I have been listening very carefully to what the Minister has been saying. I am waiting to hear an explanation of why he is resisting what seems to be an eminently reasonable and modest amendment. If we are here discussing redress for patients, the publication of the individual account of what has gone wrong seems to be the most modest and basic way of redress. It is not victimising people or causing an enormous fuss; it is just getting to the facts and allowing people to have the chance in the light of evidence to come to terms with what has been traumatic for them. All that I have heard from the Minister in resisting the proposal is that it will be an administrative burden and an unreasonable burden. I am not sure that that addresses the problem.

Has he any evidence from hospital authorities about the cost, either in time or finance, of the burden upon which he is putting so much emphasis? Has he any empirical evidence that it would be a great burden to produce a report on an individual case? Surely that is the least that a patient, or a family if the patient is deceased, has a right to expect. I cannot see that it would be a huge financial or administrative cost to a hospital authority to carry out such a simple act.

Andy Burnham (Labour/Co-operative, Leigh)

Perhaps I have not explained myself well, and I shall try to do so in response to my hon. Friend, who raises fair points. In response to the hon. Member for Romsey, I said that the Bill states that “ordinarily”—we take that to mean in almost every case—an explanation will be given to a person. As she rightly said, that is what people want. They want to know what happened and why. The explanation will essentially be a report on what happened, and the person concerned will be able to examine it and consider whether they believe it to be accurate. As the Bill says, an apology may also be made.

Amendment No. 15 would require a report

“on action being taken to reduce the risk of similar errors being repeated.”

As I tried to say to the hon. Members for Romsey and for Southport, that may not be appropriate on every occasion. A report on action being taken to prevent a repetition may not be needed in every case.

Mark Fisher (Labour, Stoke-on-Trent Central)

What are the figures?

Andy Burnham (Labour/Co-operative, Leigh)

I will be interested to find out the figures, which I do not have to hand, on how many of the cases in question relate to simple human error or a basic mistake such as a product being used that should not have been used. The individual who has made the error may readily say, “I made a mistake. I shouldn’t have done that.” However, there might be a complicated, unique set of circumstances. There is a difference between cases of human error and those that raise broader issues about the way in which services are provided.

Clause 10(2)(i) deals with such cases, stating that a scheme may require a trust to prepare a report for local consumption on the cases of that nature that have been referred to it and the action that has been taken to address the problems. It is right to make a distinction between the two types of case, with which we are all familiar. There should not be a blanket requirement to produce a report on action taken, which will not always be appropriate.

Mark Fisher (Labour, Stoke-on-Trent Central)

I am sure that my hon. Friend the Minister is defeating his own case. Everybody would concede that there is a distinction between cases of human error and cases that are not human error and need to be put right for the future. He says that dealing with cases of human error through reports would be unduly bureaucratic, but surely the return on such cases will be effectively nil—just a one-line statement at the end of a report stating, “This was human error. We need to learn no lessons from it except that we are all human.” There will therefore be no administrative burden or cost at all. The Minister has defeated his own argument by identifying the fact that there will be no cost attached to making such a statement.

Andy Burnham (Labour/Co-operative, Leigh)

I do not think so. I shall leave others to be the judge of that. I hope that in the making of an explanation and the giving of an apology, it will be good and normal practice for a trust to say, “Following your case, these were the issues raised.” That should be part of the normal conclusion of a case under the scheme. I accept my hon. Friend’s legitimate point, and a trust should at least consider whether broader issues have arisen when finalising the terms of an explanation and an apology, should one be required.

Siôn Simon (Labour, Birmingham, Erdington)

Will the Minister give way?

Andy Burnham (Labour/Co-operative, Leigh)

In a moment. I will give way to everybody who wants to contribute. I agree with what my hon. Friend says, but I am resisting the notion that a report on the action being taken to prevent a problem happening again should be prepared in every case. I do not believe that such a report would properly deal with the explanation. There is no need for a report in every case. My argument is that if a person agrees to the redress that they are being offered, the trust should come back and make a broader statement about how the case is being dealt with.

I draw hon. Members’ attention to clause 10(2)(h), which places a duty on scheme members

“to charge a specified person with responsibility for overseeing the carrying out of specified functions... under this Act and advising the member about lessons to be learnt from cases involving the member that are dealt with under the scheme.”

That creates a mechanism within the trust whereby a named individual is responsible for the functions to which my hon. Friend rightly drew my attention. I argue that we have probably got the balance right here, between something that is not a paper-shuffling scheme or a box-ticking scheme. That is not the intention; the intention is to create a scheme that does what we want it to do, which is to investigate people’s complaints properly and then take the action appropriate to provide redress to the individual, and to ensure that the organisation has learned from its errors. If there is a difference between us on the issue, that is it, although I do not know whether I have convinced my hon. Friend.

Charles Walker (Conservative, Broxbourne)

There seem to be some grey areas in the arguments being advanced. Almost all errors committed in the NHS are due to human error. After all, we control the environment in which we work. There will be catastrophic disasters, such as a plane crashing into a hospital, or a tree falling down—

Martin Salter (Labour, Reading West)

When?

Charles Walker (Conservative, Broxbourne)

I am talking “Casualty”, with all those exciting incidents—it is oil tankers in “Casualty”. However, most error is down to human error. We seem to be confusing the issues, thinking that human error will always be well-meaning error. We should not assume that if someone makes a mistake, they will apologise for it, because it was a totally understandable mistake to make. However, a lot of error will be down to idleness and incompetence. It is very important to the patient that when idleness or incompetence are identified, they receive at least the assurance that the individual or individuals responsible will be dealt with effectively.

Andy Burnham (Labour/Co-operative, Leigh)

I am not sure that it will always be down to idleness or incompetence, but I understand the point that the hon. Gentleman is making. I do not think that I am at odds with the majority of the Committee on the matter. I want to be sure that we are getting the scheme right. All of us must be careful about the kind of scheme that we pass over to the national health service. It is not a trivial matter, and we must all think carefully before we put in place an extra burden on anybody who works within the national health service. We have to think whether it is clearly justified, right and proper that an extra requirement is given, judging the benefits versus the cost.

I am arguing that the benefits that the hon. Member for Romsey seeks in her amendment are already addressed in the Bill. The mechanisms are there to deal with those cases: in the annual report that we have said that we would accept; in the further scrutiny of such reports by the Healthcare Commission, which we welcome; and in stipulating that a named individual within the trust will ensure that lessons are learned from cases.

Siôn Simon (Labour, Birmingham, Erdington)

We are at risk of continually hearing that if we look at best practice in the health service, this is already being done and that is already being done. But that is not really the point. There is no doubt that there is good practice in the health service and lots of good things, but we are supposed to be writing a law saying exactly how things are supposed to be done in future. We are not supposed to be leaving it to people’s good will and intentions. Many people in the health service are already doing things very well.

On the specifics of amendment No. 18, we should be clear that it does not talk about learning lessons. It is not a lessons-learning amendment. Nor does it talk, crucially, about the commissioning of a report. This is not about imposing a bureaucratic requirement on the health service, or on anybody, to commission a report. The amendment talks about providing to the claimant the details of the report, which as part of the process will, de facto, already have been written. This is not about commissioning a new report, but about publishing details of the inquiry already undertaken. On that basis, what good reason have the Government for withholding from the claimant details of a report that has already been written? And if one has not been written, what kind of investigation has there been?

Andy Burnham (Labour/Co-operative, Leigh)

I disagree; I think the amendment is a lessons-learning exercise.

Siôn Simon (Labour, Birmingham, Erdington)

Amendment No. 18?

Andy Burnham (Labour/Co-operative, Leigh)

Amendment No. 15 is the amendment we are discussing. Our debate with the hon. Member for Romsey concerned amendment No. 15, which is very much about a lessons-learning exercise. It refers to

“action being taken to reduce the risk of similar errors being repeated.”

Siôn Simon (Labour, Birmingham, Erdington)

I was talking about amendment No. 18.

Andy Burnham (Labour/Co-operative, Leigh)

I accept that and shall address that amendment. My hon. Friend is right, and there are important issues in that amendment, too, but I should first like to finish dealing with the issues relating to amendment No. 15, which is very much a lessons-learning exercise. I heard the comments that hon. Members made, particularly the my hon. Friend the Member for Stoke-on-Trent, Central (Mark Fisher). He made a fair point, as did the hon. Member for Romsey.

I said that people should ordinarily know what action is being taken. Perhaps we could go further and set it out in good practice guidance that all explanations provided under the NHS redress scheme should conclude with an account of the action being taken in response, where that is relevant. It will not always be relevant because often there will be a self-contained issue. I accept the point that it may be relevant in some cases, but the giving of the explanation to me is the preparation of the report. If we take on board what the hon. Lady has said, and extend the process in that way, we may get to where she wants to be.

Nick Hurd (Conservative, Ruislip - Northwood)

The Minister’s fig leaf in this debate is clause 10(2)(i) and the annual report. To my reading that paragraph does not impose a duty; it simply says that if the Secretary of State sees fit, a scheme may require members to prepare a report. Am I to deduce from his remarks that the Government intend to firm that up and make it a duty?

Andy Burnham (Labour/Co-operative, Leigh)

Under clause 10(2)(i) a scheme may

“require a member of the scheme to prepare and publish an annual report about such cases and the lessons to be learnt from them.”

The provision exists. Having created the expectation, it would be right and proper that there should be a requirement on all scheme members to report in that fashion on the cases highlighted by the hon. Member for Romsey. She was right that one problem of the current system is that cases that finally go to the NHS ombudsman are at too much of a remove. First, there is the locality in which those cases happen; the local press does not always read the reports. There is also too great a remove from the time when those cases happened. I do not know the average time, but there is ordinarily a long delay before a case is dealt with by the ombudsman.

I agree with the principle that there should be local accountability and greater speed in dealing with cases. I would go further and say that that should be a requirement on scheme members, and the Bill clearly allows that to happen.

Nick Hurd (Conservative, Ruislip - Northwood)

Have we not just heard an argument for “shall” rather than “may”?

Andy Burnham (Labour/Co-operative, Leigh)

As the hon. Gentleman knows, the Bill is in many ways an enabling one. Much of the detail will come forward in secondary legislation. Subsection (2) clearly lays out the expectation that he seeks. We will come to clause 10 in due course, and perhaps he will make his point again then. Given my assurances about the requirement, it is clear that we intend to operate in that way.

Graham Stuart (Conservative, Beverley and Holderness)

Even though, under a previous clause, a report should ordinarily be provided, the Minister is unhappy to allow a report to be included in this case. The Minister is suggesting that he will not amend the legislation to say even that an annual report must be provided. We are to take that provision entirely on the Minister’s assurance, without reassurance being put in the law. I hope he will accept that that is simply not good enough.

It is a problem that so much is being left to secondary legislation. On a core issue such as this, which is of great matter to Members across the Committee, we need an assurance that, if the Minister cannot accept the argument for a report to be provided in each case, at least we on the Committee, who are helping to amend the law, should know that there is a guarantee that the lessons will be put into an annual report.

Andy Burnham (Labour/Co-operative, Leigh)

Quite simply, we would not be bringing forward the legislation if we did not believe that these matters were important. I make no apology—none at all—for saying that we will bring forward the detail that flows from the legislation in careful consultation with stakeholders in the national health service. We will do so in a way that achieves the objectives of the scheme without placing undue burdens and distractions on bureaucracy. The hon. Gentleman would not want that, and nor would we. The expectation is clearly that an explanation will ordinarily be given in every case.

As I made clear when pressed by my hon. Friend the Member for Stoke-on-Trent, Central and the hon. Member for Romsey, I am prepared to say that we should make it clear to scheme members in good practice guidance that there should ordinarily be an explanation and, where appropriate, that action should be taken on the issues that the explanation raises. What I resist is the idea that the explanation should be the content of a report published in each case. Our intention is clear. We are bringing forward the legislation and there is no attempt to resile from the commitments. We are bringing the legislation forward in a way that people in the NHS feel is proportionate.

John Baron (Conservative, Billericay)

I do not believe that it is too late for the Minister to make a manuscript amendment on this matter, particularly if we do not reach clause 10 until Thursday. He may wish to consider changing one word from “may” to “shall”.

Moving on to clause 12(2)(b), I point out to the Minister and to Committee members that there is already a requirement in the Bill to produce a report

“on any lessons to be learnt in accordance with section 10(2)(h).”

We will debate that when we come to clause 12 but I ask hon. Members from all parts of the Committee to bear it in mind while we debate clause 3.

On amendment No. 15, I believe that there is a case of principle. If a report is not written, how can we guarantee that lessons are being learned? There is something of a downside with an annual report, because the lessons to be learned could be urgent. Waiting a year might not be good enough, particularly if lessons have to be learned, in serious cases of negligence, for the benefit of patients as a whole. Will the Minister address those points?

Andy Burnham (Labour/Co-operative, Leigh)

I shall address them directly by saying that I will not be tabling a manuscript amendment. As I made clear, the Bill makes perfect provision for what we intend. I am prepared to say that we should clarify in guidance some of the matters that colleagues have raised, but the Bill is sound, and there is no need for a further amendment.

On the hon. Gentleman’s second point, people might not simply accept the explanation or apology. Everyone accepts that people will argue about the finance, but they might not either accept the terms of the explanation or apology. If they do not accept them, they do not sign away their rights; they can remove themselves from the process and pursue matters elsewhere. The provisions are simply an attempt to get the system to confront the case in a better way at a particular stage and do not close off the option of pursuing matters further. The Bill is therefore sound and does exactly what I described.

Diana Johnson (Labour, Kingston upon Hull North)

I have listened carefully to what the Minister said about concerns over adding to the administrative burden on trusts, but will he comment on the requirements already placed on trusts? There is a requirement that they publish annually a risk assessment list relating to what they have done and details of the clinical governance issues that have arisen over the previous 12 months. I wonder whether that would be a way forward in dealing with this issue.

Andy Burnham (Labour/Co-operative, Leigh)

My hon. Friend is right on two counts. First, she draws attention to the fact that the NHS does that work and, to my mind, does it extremely well. It seeks to provide redress in whatever way it can. The point that we are addressing, which the Bill partly seeks to address, is that that culture can sometimes be too defensive and too secretive.

Secondly, my hon. Friend is right that such matters are addressed in the requirements on trusts to put details of clinical governance in their organisation into the public domain. I therefore agree that we already have in place a system whereby such things can be done. The Bill asks whether we can do them even better still and promote a better culture in the national health service when it comes to dealing with patient complaints.

My hon. Friend is right to say that we must think carefully, and that brings me back to my earlier point. In seeking to create the arrangements before us, we must set up something that is proportionate to the aim that we seek to achieve. It would be right and proper for an individual who was not happy with the explanation or the follow-up action to pull back from the scheme and pursue redress through other avenues. However, we must create a scheme that is—light touch would be the wrong word—not over complicated and prescriptive in its requirements.

Judy Mallaber (Labour, Amber Valley)

I have been listening carefully because I am particularly concerned about a case that I have dealt with. A girl died of meningitis, and there may have been mistakes by the GP, the ambulance service and the hospitals. I have been seeking to mediate between the primary care trust, which wanted to get into a system that was not legalistic and in which it could address all the issues, and the family’s desires, but it has been quite complex to get into something that satisfies everybody. I am reasonably satisfied that the Bill will mean that such people get an explanation and that it will take account of the changes that need to be made.

Although I am tempted by the amendment, I have some anxiety that it would make each individual expect in every circumstance to be given something to show how a problem will be prevented from happening again, even if it cannot be prevented. I hope that my explanation is not too tortuous. It is not just a matter of an administrative burden. A situation could be dealt with by having clear guidance on what is expected to be contained in an explanation, without the requirement of a promise that what happened to one person will never happen again even if such a promise is unrealistic. Will it be possible to give clear guidance on what should be in an explanation?

Andy Burnham (Labour/Co-operative, Leigh)

I can give my hon. Friend that undertaking. We should spell out clearly the circumstances in which authorities should take action to prevent certain things from happening again. Such cases will be pretty clear to us from our own experience. I agree with my hon. Friend that to create an unrealistic expectation that everyone will get a report stating action to be taken could cause unnecessary distress or argument. If no action is taken, people might feel that it should be. There are provisions in the Bill to deal with such matters in a balanced way, and we do not need to go a step further and make reports a requirement in every case handled in the NHS redress scheme.

We have rightly spent a lot of time on amendment No. 15, but I wish to move on to amendment No. 18, which is intended to do something slightly different: to enable the scheme to make provision about the disclosure of all findings made during the investigation of a case and any assessments of liability in tort to a patient or their representative. The Government intend that in any case under the scheme, relevant material will be disclosed to the patient or other individual eligible for redress. I hope that my hon. Friend the Member for Birmingham, Erdington, will be reassured on that point. For example, we intend that medical records, adverse incident reports, complaints files and health and safety executive investigation reports, when relevant, will be disclosed.

Siôn Simon (Labour, Birmingham, Erdington)

I thank the Minister and am reassured. Like many of the outside organisations that are following the Bill closely, I understand his desire to craft enabling legislation and not to surround the process with deadening bureaucracy. Nobody wants an over-prescriptive Bill, and if the Department wants to create enabling legislation and do much of the work through regulations afterwards, that is fine. However, the quid pro quo is that reassurance and soft undertakings on guidance and secondary legislation are needed. They would make our proceedings much more meaningful for those of us who believe that the Bill is good at heart but want to see the Government take advantage of the opportunity that they have created.

Andy Burnham (Labour/Co-operative, Leigh)

My hon. Friend is right to press me on that important point. We must create a scheme that will deliver openness, less secrecy and a more confident and forward-facing culture, and with such a culture comes disclosure. A case under the scheme will mirror the situation of one handled by the NHS Litigation Authority under the clinical negligence scheme for trusts. All the existing statutory rights of access to information under the Data Protection Act 1998 will apply.

In an earlier intervention, my hon. Friend rightly said that the system will not present extra bureaucracy, because an investigation report will have been prepared by a trust anyway, particularly in the most serious cases, under the NHS redress scheme. I think that he is referring to such reports with reference to full disclosure under the scheme. Amendment No. 18 would provide for such a report to be disclosed.

It is intended that the scheme may provide for investigation of cases to lead to a report, and we intend to consider further, in consultation with stakeholders, whether the investigation report should be made available to the patient or an individual who is eligible for redress, subject to any restrictions connected with patient confidentiality or data protection. That would of course be in addition to the explanation of what had gone wrong, under clause 3(2), which we spent some time discussing.

It is the Government’s intention that the scheme authority will publish guidance to scheme members about their functions under the scheme, including sharing examples of good practice, as appropriate. That will include guidance on the matters to be covered in an explanation, to encourage the move towards a more open culture in which full and open explanations are provided as a matter of course.

I hope that I have given my hon. Friend the assurances that he wants, but I must point out that the need may arise for non-disclosure to some extent. There may be situations in which it is not appropriate for personal information to be disclosed; for example, if an application has been made to the scheme by a dependant, following the death of a relative who wanted their medical records to remain private and confidential, it may not be appropriate for all the details, which may include the medical records, to be disclosed to the surviving relative.

That becomes complicated legal territory and although I want to go with the grain of what my hon. Friend says, I hope that he will respect the fact that it would not be right to give a blanket commitment to disclose all details in investigation reports. There would be circumstances in which people would not want their details made available to third parties.

The amendment seems to envisage the disclosure even of information about the assessment of liability. Confidential communications for the purpose of obtaining legal advice and assistance may be privileged in accordance with the general rules of legal professional privilege, and we believe that it is appropriate for those general rules to apply to the NHS redress scheme.

For those reasons I oppose the amendment, but I assure the hon. Member for Romsey that we are committed to an appropriate level of disclosure under the scheme. I believe that we are going as far as we can to satisfy my hon. Friend the Member for Birmingham, Erdington and others in establishing a scheme that is based around the patient and help for the patient in moving forward, but which balances that with confidentiality and considerations of data protection.

We want to find the appropriate level of disclosure and intend to consider further, in consultation with stakeholders, whether the investigation report should be made available to the patient or individual who is eligible for redress, subject to restrictions in connection with data protection. A balance is needed between ensuring that sufficient information is disclosed to enable legal advisers accurately to assess whether an offer under the scheme is fair and reasonable, and ensuring that confidential communications remain privileged, as is appropriate in accordance with the general rules of legal professional privilege.

It should be considered that people who gave a full and frank explanation during an investigation of what went wrong and why might not want all their comments to be disclosed. In the interest of openness and honesty, we should understand that full disclosure might prevent people from coming forward with full and detailed explanations. There is a balance to be obtained in all those matters, but, as is generally true in such matters, the Government’s direction of travel has been towards freedom of information, and making information available where appropriate. That is what we intend by the NHS redress scheme. With the reassurances I have given, and our long debate on the proposals, I hope that the hon. Lady will ask leave to withdraw the amendment.

Sandra Gidley (Liberal Democrat, Romsey)

I am tempted to divide the Committee on amendment No. 15, as it seems to have support from several directions. I listened carefully to the Minister, who made a valid point about the proposal being unnecessary in every case, but I believe there should be provision for patients to ask for a report if necessary. Therefore, I give notice to the Minister that I shall table further amendments on Report to try to pin down the detail, get the proposal right and strike the right balance. I beg to ask leave to withdraw the amendment.

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move amendment No. 14, in clause 3, page 3, line 22, leave out paragraph (b).

I hope that the debate on this probing amendment will not be as long as the last one. Ministers confirmed that compensation payable under the scheme will be consistent with the compensation payable if the case had been dealt with by the courts, and there is some logic in that. However, the issue is whether it is logical to put a cap on any individual head of claim because the clause could mean that some cases are undervalued or that patients feel short-changed by the scheme. The limit envisaged for the overall limit of compensation payable is £20,000.

The purpose of the amendment is to try to establish the rationale for the Government’s decision to limit compensation for pain and suffering, to discover why the figure of £20,000 was believed to be the most appropriate, and to find out how it will be reviewed.

John Baron (Conservative, Billericay)

I remind the Committee that clause 12 attempts to separate fact finding from fault finding and to establish an independent and rigorous investigation. On compensation, under the Bill the offer of compensation from the NHS Litigation Authority is but one avenue that patients can take at the end of the fact-finding stage. At that point other avenues are open to them; they can listen to what the NHSLA has to say, go to resolve-type schemes or to the court outside the scheme to seek appropriate compensation. That is worth bearing in mind, although I have some sympathy with the point of the hon. Lady’s amendment.

Andy Burnham (Labour/Co-operative, Leigh)

The scheme that the Bill creates is intended to be a fast-track, out-of-court settlement scheme for clinical negligence cases. In creating the scheme the Bill preserves some flexibility in how matters are dealt with in secondary legislation and in taking forward discussions with stakeholders. It is intended that the redress scheme will provide for financial compensation to be offered. The hon. Member for Romsey is right; the policy statement that accompanies the Bill indicates that the figure will be £20,000.

Clause 3(5) requires the scheme to specify an upper financial limit on compensation. That may be an upper limit on the total financial compensation that may be included in an offer under the scheme, or an upper limit on the financial compensation that may be included in an offer for pain and suffering—what might be termed general damages. It is our stated intention that financial compensation offered under the scheme will be broadly equivalent to the compensation that could be provided in a successful claim in court. The Bill was amended in another place to clarify that, and the flexibility allowing for more than one cap was removed.

Further, clause 3(4)(b) gives us the power to

“make provision with respect to the assessment of the amount of any financial compensation.”

It is intended that the scheme may provide that a person seeking redress must be offered general damages for pain and suffering in line with the law on damages.

Special damages, be they loss of earnings or other costs incurred as a result of injuries sustained, must be assessed in the light of whether there is adequate proof of loss and whether they can properly be claimed as special damages in accordance with the law that governs what types of loss a claim for special damages can include. The intention is that the scheme will initially specify an upper limit of £20,000. If a case is thought to fall just above that threshold, it may be appropriate for it to be referred to the clinical negligence scheme trust and resolved outside the NHS redress scheme. The limit will be reviewed after three years with a view to considering whether it would be appropriate to alter it or to apply a limit only to the pain and suffering element. To answer the hon. Lady, we wish to keep our options open and retain flexibility within the primary legislation to take either of those options. Either way, it is intended that offers will remain equivalent to what could have been received through the courts.

This issue was raised on Second Reading and is perhaps worth revisiting. I do not believe that there is any incentive in the scheme for NHS bodies knowingly to make offers lower than what could be achieved by going through the courts, as that would simply prolong cases and provide people with incentives to take their cases through the courts. Once an offer has been made, the patient, or individual eligible for redress, will be able to have the facts checked through the legal advice available to them, so financial compensation can be checked independently. There will be no advantage in knowingly offering less, because such offers will simply be rejected. That would be counterproductive to the overall aim of the scheme, which is to get settlement in as quick, satisfactory and cost-effective a way as possible.

The amendment would remove the requirement for the scheme to impose an upper limit, and I would resist that, because it is appropriate for more complex cases to continue to go through the courts. Fundamentally, the redress scheme is designed as a fast-track, out-of-court settlement scheme for cases of low value. We will review its operation three years after implementation, but we do not consider it appropriate for complex cases to go through that route.

The hon. Member for Romsey asked how we arrived at the figure of £20,000. It was reached by examining low-value legal clinical negligence claims that were settled by the NHS Litigation Authority in 2002-03 and 2003-04—about 4,090 and 5,690 cases respectively. The cases showed that legal costs were disproportionately high for claims with a value of up to £20,000. Cases settled over that limit showed a significant reduction proportionately in the percentage costs of legal damages. Our modelling suggests that an overall upper limit on the amount to be offered under the scheme strikes a balance between speedy resolution and an effective saving on legal costs. We believe that it is right that more complex cases should be dealt with by the courts, in which detailed legal arguments can be fully rehearsed.

Graham Stuart (Conservative, Beverley and Holderness)

The Minister said earlier that there would be no incentive for trusts to offer a lower amount than could be expected through the courts. That is a little disingenuous: this is a fast-track scheme, so there would be speed and certainty in the process whereas the courts have neither speed nor certainty. It would be rational to expect patients to accept lower amounts than they might accept in the courts. To what extent has the Minister looked at incentives, both for the trusts to put in lower offers and for patients to accept them? I do not think that one can maintain that there is no incentive to offer a lower amount when in fact it is a fast-track and certain process.

Andy Burnham (Labour/Co-operative, Leigh)

I understand the hon. Gentleman’s point and, in many ways, the Bill and the scheme that will come from it open up access to justice for the less articulate, the less wealthy and those who traditionally would have got fed up and abandoned the process before they could go through a case. Perhaps, indeed, those are the people who are less likely to come and speak to an MP. It is precisely for those people that this scheme is being created. It is important that there is not a reactive feel to the scheme but that the NHS takes forward schemes of its own when it realises that there may be a case of negligence. For these reasons, it is absolutely right that the scheme should be structured in this way.

The crucial point comes when people say that this has provided redress and that they have therefore signed away their ability to take it further through the legal process. At that point they should be supported with independent legal advice, and that is what we intend to give them. They will then be able to make a balanced judgement on the basis of what they are being offered, the quality of the apology, the depth of the explanation and the financial compensation, if appropriate. At that point they can decide whether they feel they have redress and whether they want to take the matter further. They then have to consider time, frustration and the problems that cases can cause. People can become very engrossed and bogged down by these cases, and one of the difficult things at the moment is that people are forced into that route to get redress, which is obviously wrong.

People will have to make a judgment but there would not be an incentive to make an offer that was of much lower monetary value and, indeed, the independent legal advice will assist individuals in coming to that judgment.

The Bill provides an element of flexibility on the issue of a cap within the scheme and whether it needs to be amended as we gain more understanding of how the scheme works in practice. It is our policy intention to have a cap of £20,000 but paragraph (b), which our amendment seeks to remove, could limit the scheme in an unfortunate way in that it may exclude individuals who earn a great deal of money from having redress under the scheme because the damages may go over the amount of the cap that we have set. That is why we are creating the two options, so that if it were decided that many cases with which it would make sense to deal under the scheme were in fact being ruled out because of the cap on damages, that could be reviewed at the three-year point. The scheme could be extended to take in cases that would exceed the £20,000 limit, but where the damages paid in suffering were beneath that threshold. Individuals’ personal circumstances will differ, and the level at which they would require compensation for loss of earnings will differ greatly according to their particular professions.

The essence is that we want a scheme that is flexible and that can be sensibly extended at the three-year point, if the evidence suggests that there would be good reason for doing so, without our coming back to primary legislation. That is why the Bill is drafted as it is. There is nothing underhand about paragraph (b), and we are not seeking to limit compensation in any way; it simply ensures that all the cases that could sensibly fall within the ambit of the NHS redress scheme are able to do so. We continue to say that the most complex, difficult cases, where much greater sums of damages are involved, should go through the courts, so that they can be dealt with properly and in detail. With those words of explanation, I hope that the hon. Lady feels clearer about our policy intention, and I urge her to withdraw her amendment.

Sandra Gidley (Liberal Democrat, Romsey)

I said that this was a probing amendment to try to establish Government thinking and put it on record. I am not greatly wedded to the amendment, so I beg to ask leave to withdraw it.

Clause 4

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move amendment No. 21, in clause 4, page 3, line 34, at end insert

‘provided that any individual who meets the requirement of a scheme to commence proceedings shall have the right to bring such proceedings’.

Anne Begg (Labour, Aberdeen South)

With this it will be convenient to discuss the following amendments: No. 16, in clause 4, page 3, line 40, at end add—

‘(3) A scheme must make provision for the commencement of proceedings under the scheme at the request of an individual seeking redress under the scheme’.

No. 17, in clause 4, page 3, line 40, at end add—

‘(3) Proceedings under the scheme will not be commenced without the permission of an individual who may be the recipient of redress under the scheme’.

Sandra Gidley (Liberal Democrat, Romsey)

Amendment No. 21 was tabled because although we hear a lot these days about a patient-centred NHS, and about the patient being able to exercise choice, it seems to me from the Bill that the Secretary of State will decide which patients are eligible to bring forward the complaints.

It is not at all clear what sort of restrictions could be put in the way of a patient who seeks to bring forward a complaint under the scheme. The amendment gives individuals the right to bring proceedings, and there are no restrictions on that. I have given some thought to who one might want to restrict, if there were a problem in the NHS, and the only situation that I could think of offhand would involve a complainer, not exactly vexatious but with a history of making complaints against the health service, and who might have another agenda. Although someone might be annoying and an irritant, and might come back again and again, there may be an occasion when that person has a genuine complaint that needs to be looked into. I find it difficult to understand how the Secretary of State will restrict who will be eligible, but that provision is clearly in the Bill, and it could be quite heavy-handed and prevent people from coming forward. In the amendment, we seek clarification on who will be allowed to bring forward a complaint, and who will not, because that is just as important.

Amendment No. 16 gives an NHS patient or their representative the right to seek redress under the scheme if they feel that they have been harmed by NHS treatment and meet the eligibility criteria of the scheme. As the Bill is drafted, the Secretary of State and the scheme authority have the right to determine who can seek redress.

It is important to have transparency. One should also consider other cases in which a patient could complain but does not want to, or changes their mind. The NHS could learn lessons from pursuing the complaint in such cases. The other parts of the scheme—fact-finding and the provision of reports to establish what has gone wrong and the measures that should be taken—are important in the greater public interest. However, there should perhaps be a right not to continue if it is in the interests of the individual. That is the thinking behind amendment No. 17. I shall leave it for the Minister to provide clarification.

John Baron (Conservative, Billericay)

The amendments seem to deal with the central issue of who can trigger the redress scheme. Who will say, “Yes, we need to look at what went wrong here and at the lessons that can be learned from it.”? The amendments appear to want to give that right only to the individual concerned, and I would be troubled by that, because I believe that the issue is one of public interest.

The point of the redress scheme is to give an explanation, or an apology where it is due, or perhaps compensation, which is an option that is within the auspices of the NHS Litigation Authority. Its other major aim, however, is to ensure that lessons are learned for the benefit of all, so I would be concerned about any suggestion that the scheme could be triggered only by the relevant individual.

I can envisage cases in which there would be obvious lessons that could be applied for the benefit of all patients, but in which the patient for some reason decided not to pick up and run with the scheme. Members on both sides of the Committee have said that it is important that the lessons learned be for everyone’s benefit. In the vast majority of cases, patients with grievances have an altruistic approach whereby they want to ensure that what happened to them is not repeated, but if instigation of the redress scheme was restricted to those who had suffered grievance, there would be a risk that lessons would not be learned for the benefit of other patients in the NHS.

Sandra Gidley (Liberal Democrat, Romsey)

I understand the hon. Gentleman’s point, but if the hospital staff thought it was important to review a situation, they would be in a position to persuade the patient to pursue it. If a patient did not want to do that under the scheme, there would still be other ways in which the hospital could investigate and learn lessons.

John Baron (Conservative, Billericay)

I hear what the hon. Lady says, but the Bill clearly provides a mechanism by which valuable lessons will not be lost to the NHS. The Bill will be one of the main avenues to a change in the culture of the NHS and I am not sure that the other mechanisms to which she refers exist, or that they are as rigorous as they should be.

Members on both sides of the House want the Bill to play a major part in changing NHS culture to be more open, so that lessons may be learned, so that explanations and apologies may be given where due, and so that there is the option of compensation—we do not rule that out, as can be seen in the Bill.

The bottom line, however, is my worry that if we accepted the hon. Lady’s amendment, there could be valuable lessons that would not be learned because the only trigger given by the amendments to proceed with the redress scheme would come from the person directly involved—the person with the grievance. We all know that compensation is only part of the scheme. If people do not want it, that is fine. They do not have to have it. We know that they want an explanation and apology, and want to know that the lessons learned are not lost.

The investigation is, therefore, a matter of public interest. That is consistent with the Inquiries Act 2005. I will quote a sentence from that Act that seems to bring that point out. It is from the explanatory notes to section 2, which is entitled “No determination of liability”. It says:

“The aim of inquiries is to help to restore public confidence in systems or services by investigating the facts and making recommendations to prevent recurrence, not to establish liabilities or to punish anyone.”

That is the key point about the redress scheme. The purpose is to restore public confidence in systems or services and to ensure that we learn the lessons so that the mistakes are not repeated and, as a result, we have a better health service. If we restricted the triggering of the redress scheme to the individual concerned, we would risk relegating the importance of the scheme as an attempt to change the culture and we would not achieve our aim.

In short, in our view the issue is one of public interest and of ensuring that lessons are not lost. By restricting the triggering of the scheme to the one individual who suffered the grievance, we would risk losing the possibility of learning from those lessons.

Andy Burnham (Labour/Co-operative, Leigh)

I thank the hon. Gentleman for doing my job for me. Let it be a long time until he is not in a position to do so. His points are valid and he gave a good explanation. Having said that, I do not believe that the issue that the hon. Member for Romsey raised fairly—if we are talking about amendment No. 17, it is an issue of patient consent—is unimportant. It is important, as I will explain. We can assure her that we have the right balance in place.

Let me take each of the three amendments in turn. Amendment No. 16 says that the scheme must provide for proceedings under it to be commenced where the patient wishes to seek redress, and it would insert a new provision in clause 4. However, the Bill already takes powers that will enable the scheme to specify who can commence proceedings. As the explanatory notes make clear, clause 4(2)(a) enables the scheme to

“provide for a scheme member to be under a duty to start proceedings...on receipt of an application for redress”.

It is, therefore, our stated, firm intention that individuals will be able to apply to the scheme directly to ask for a case to be investigated and taken forward. The full details of who may make applications will be covered in the scheme and will therefore be part of the secondary legislation underpinning it, on which we will consult stakeholders. However, we intend for patients to be able to apply to the scheme directly. I give the hon. Member for Romsey that assurance. We will, therefore, resist the amendment because we do not believe that it is necessary, given the powers in the Bill.

Amendment No. 17 overlooks an important aim of the scheme. On that issue, the hon. Member for Billericay made some valid points. Scheme members should identify cases that potentially fall in the scheme. I do not like the word, but the scheme is meant to be proactive.

Scheme members should activate an inquiry without waiting for the patient to approach them. In our view, the expectation should be included in the scheme from the outset that people do not have to sit back and wait for complaints to be made, or we will have a reactive and complacent situation in which people wait to be prodded. We do not want that to be the case.

Sandra Gidley (Liberal Democrat, Romsey)

I take the point that we need a scheme in which the staff are proactive—I welcome that—but will the Minister clarify at what stage the patient will become aware that there is some sort of investigation? The patient might be unhappy, but might not have realised that there is a form of redress or might have decided to accept matters.

The patient might not want to proceed for various reasons—for example, if he or she felt that a wider body of people would know about a problem, which might be sensitive. At what stage will the patient be aware that proceedings have been instigated?

Andy Burnham (Labour/Co-operative, Leigh)

As the hon. Lady can see from clause 4(2)(f), we have taken powers to enable the scheme to provide for the notification of the commencement of proceedings. It is intended that if the scheme is activated by a scheme member—a primary care trust or an acute trust—rather than by the patient, the scheme will provide that the scheme member should notify the patient of this. That is what should happen.

If the patient does not want their case to proceed under the scheme, the powers in clause 6(2)(g) enable the scheme to make provision for the termination of proceedings under the scheme. If the patient states that they do not want their case to proceed, we intend that the scheme member will be required to terminate their proceedings. If the patient wanted the case to stop, it could therefore be stopped well before it went to the scheme authority, or at any stage.

I agree with the hon. Lady on the principle that a patient’s case should not be considered by the scheme authority without that patient’s consent, or the consent of their dependants, or any other person who may be eligible under the scheme. It is right that under the redress scheme patient consent should be sought before any information covered by the common law duties of confidentiality is disclosed to the scheme authority. Common law duties of confidentiality on the disclosure of information will apply.

Where a patient refuses to give consent, it may not be possible for the case to proceed. That will be made clear to patients where the initial request to disclose information to the scheme authority is made. The duties of non-disclosure under the Data Protection Act 1998 will apply in any event. A person may not be required to disclose information to the scheme authority in relation to which they are under a duty of non-disclosure under the 1998 Act. Therefore, I agree with the hon. Lady’s principle but oppose her amendment, which is not needed to achieve the effect that patients’ cases will not proceed under the redress scheme if that is against the wishes of patients.

I want to preserve the point, which was well made by the hon. Member for Billericay, that there is a proactive approach to the scheme. It is about bringing the two things together: encouraging organisations to look at cases that might be eligible and to begin that process themselves, but at the same time having it clearly laid out that if the individual concerned does not want that case to proceed, they have the opportunity to call a halt to those proceedings.

The Bill, therefore, creates the right balance. However, the important principle of patient confidentiality and consent, which the hon. Member for Romsey has rightly drawn attention to, is properly preserved by the provisions.

Under amendment No. 21, any time limit imposed on the scheme that governs the period within which proceedings under the scheme must be started would not apply to people who might be eligible under the scheme. In other words, people who may be eligible would have the right to bring a claim under the scheme at any time in the future. I must say to the hon. Member for Romsey that I consider the amendment to be undesirable.

Clause 4(2)(c), as drafted, allows a time limit to be imposed on how long a patient can wait before applying to the scheme after becoming aware of his or her injury. It is our intention that that timing will be decided on after consultation with relevant organisations. One issue to be discussed will be whether time limits should differ, depending on whether the scheme member initiates proceedings under the scheme or whether a patient makes a claim under the scheme.

As for an individual commencing proceedings, one option that we intend to discuss is that the time limits reflect those applying to litigated cases as laid down under the Limitation Act 1980. If that approach were taken, the claim would need to be made within three years from the date of the alleged injury or from the date on which the person first suspected that he or she had suffered injury. To provide under the Bill that there can be no time limit on applications would create several problems. The rationale for time limits is that they encourage people to proceed without unreasonable delay. Furthermore, they protect defendants from stale claims. Those interests must be balanced.

A balance has been achieved under the rules with regard to limitation periods for personal injury cases under the Limitation Act. We would all want cases to be brought forward without undue delay. If they are not, it will make investigation of the case more difficult for the NHS bodies to which the case applies. Ultimately, that would act against the interests of the patients who had been affected adversely.

On implementation, we intend to publicise the redress scheme widely. The publicity would make clear the time limit for commencing proceedings. We do not consider it appropriate to prevent time limits from being set for individuals to commence proceedings under the scheme. There is further discussion to be had with stakeholders about precisely how those limits are set and when the clock starts. In general, the three-year time bar works well and will strike a fair balance between people having good time to come forward with their complaint. It provides for the statutory sector—the NHS—to know that, if a case has not come forward, it will not have to prepare for cases continually coming forward that were dealt with long ago and have to be involved with extra work, such as retrieving files that were quite old and outdated.

A balance must be struck. It would be right to go with the three-year test. However, we shall take matters further in consultation and general discussion with those who have an interest in such issues. It is right that the principle of a time limit should be included in the Bill. With those words, I have not offered great reassurance to the hon. Lady, but many of the provisions that she seeks, especially through the other two amendments, will be taken care of under the Bill. As drafted, it meets many of the worries that she has expressed. I ask her to withdraw the amendment.

Sandra Gidley (Liberal Democrat, Romsey)

I am much reassured by the Minister’s sentiments and the thinking behind the Bill, which is right. The only problem is that we always take a lot on trust when we have something that could be open to wide interpretation under the Bill. Having given the matter some thought, I do not believe that a future Government of any shape or colour would want to do anything other than what the hon. Gentleman has described. With that, I beg to ask leave to withdraw the amendment.

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move amendment No. 13, in clause 4, page 3, line 35, leave out ‘may' and insert ‘shall'.

The Committee will be pleased to know that I shall be brief. The Minister talked about time scales when he referred to the previous batch of amendments. This amendment is an old favourite of Committees: it would leave out “may” and insert “shall”. It occurred to us that there is a need to ensure that if a complaint is in hand, it is being dealt with at a reasonable rate, and that there are no excuses for a trust to delay coming to a conclusion. It would be helpful for the scheme to have clear rules about when proceedings should start, how long they should take and how long it is reasonable to ask somebody to wait. I know from a constituency casework point of view that there are occasions when feet are dragged in the hope that people will just go away and forget about their case. Some people may not hear anything and will not push. The amendment would ensure that there is a sharp focus on any complaints, and that matters are dealt with as speedily as possible. That is the gist of the argument.

Andy Burnham (Labour/Co-operative, Leigh)

Clause 4(2)(d) enables the scheme to set out circumstances in which proceedings under the scheme may not be started. For example, it is envisaged that proceedings under the scheme may not be started in respect of a case that has been previously considered under the scheme, or where an offer in respect of the same injury has previously been rejected. The intention of paragraph (d) is to avoid cases that have already been investigated and found to be outside the scope of the scheme having to be investigated again. I do not think that the hon. Lady has any objection to that basic principle. She is perhaps seeking some sharpening up of the wording. Where a patient has already rejected an offer of redress under the scheme in respect of the same injury, we intend that the scheme will provide that proceedings cannot be commenced. The intention is to avoid the scheme member having to start the process again and investigate the same case. The Bill currently gives us what we need in making clear that that can happen, so the changing of a “may” to a “shall” is not necessary. It is possible that it would give greater certainty to circumstances in which a case could not be commenced, but I do not think that the Bill’s drafting is fundamentally wrong. The clause enables those circumstances envisaged to be laid out clearly.

Sandra Gidley (Liberal Democrat, Romsey)

The sort of example where I thought it would be useful to have a clear indication of time scale is in the investigation. It is easy to make excuses that people are on holiday or study leave, and to say that it is difficult to get to the basis of the facts. The investigation is important because it underpins the rest of the proceedings. What is the problem with setting a time scale? What is the problem with the word “shall”? I do not understand the objections to it. We understand the need for matters to be resolved quickly, so I should like to be clear about why that word is rejected.

Andy Burnham (Labour/Co-operative, Leigh)

I am happy to speak further with the hon. Lady about the matter. If I understand her correctly, she wants to create a situation in which the individual can suspend the commencement of proceedings. However, the amendment would not materially change the Bill. The Bill simply enables us to lay out the circumstances in which an application under the scheme may not be commenced. I studied English, not law, at university, but I do not think that there would be any substantive change to the meaning of the Bill if the “may” in paragraph (d) changed to “shall”. The Secretary of State would still be able to lay out in regulations what kinds of cases would be disqualified under the scheme because they had already been considered and dealt with.

There is no material change. If the hon. Lady has a different interpretation of the paragraph, I shall be happy to give way to her again. However, I am confident that the Bill does what we want it to do. No aspect is weakened in any way. In due course, we shall bring forward clearly the circumstances in which proceedings cannot be commenced for of the reasons I have set out. I hope that I have reassured the hon. Lady and I ask her to withdraw her amendment.

Sandra Gidley (Liberal Democrat, Romsey)

I shall indeed seek leave to withdraw the amendment, because I realise that there was a drafting error on my part; I identified the wrong “may” and “shall”, so I would be talking about something completely different. I originally intended to change line 28, but we can return to that another time. I apologise to the Committee and the Minister.

Stephen O'Brien (Conservative, Eddisbury)

If such an amendment to line 28 came forward on Report, that would not make legal sense either. It is a long time since I practised law, but I do not think that there could be a “shall” for a provision in respect of ministerial discretion; that would convert clause 4(1) into a duty.

Sandra Gidley (Liberal Democrat, Romsey)

I am not a lawyer, and I bow to the hon. Gentleman’s greater knowledge. My main motivation is to try to make things better for the patient, but I welcome the hon. Gentleman’s clarification. I beg to ask leave to withdraw the amendment.

Standing Committee B

Clause 6

Andy Burnham (Labour/Co-operative, Leigh)

I beg to move amendment No. 1, in clause 6, page 4, line 13, leave out from ‘scheme' to end of line 15.

Anne Begg (Labour, Aberdeen South)

With this it will be convenient to discuss the following: amendment No. 8, in clause 6, page 4, line 15, leave out ‘tort' and insert

‘law, whether civil or criminal'.

Government amendment No. 2

Amendment No. 19, in clause 6, page 4, line 23, at end insert—

‘(h) for independent assessment of the eligibility ofcases for redress under the scheme in specified circumstances'.

Government amendment No. 5

Clause 12 stand part.

Andy Burnham (Labour/Co-operative, Leigh)

It is somewhat fresher than it was this morning, but perhaps our discussion will generate some heat because we have hit the part of the Bill that relates to the substance of the disagreement on Second Reading. We have genuine differences over the way in which the scheme should be structured and the type of scheme that we are trying to create.

My amendments restore powers to enable a redress scheme to be established with the structure originally intended by the Government and reverse amendments made in the other place. Clauses 6 and 11, as amended there, would separate the fact-finding investigation under the redress scheme from the assessment of liability and quantum. The scheme authority would have no role in the investigation and provide no guidance or advice to scheme members about investigations. The opportunity to have a unified scheme would be lost.

Amendment No. 8, which was tabled by the hon. Member for Billericay (Mr. Baron), is even more clearly intended to confine investigation under the redress scheme to a fact-finding investigation, preventing consideration of issues of liability in law, both civil and criminal, rather than issues of tort alone. The amendment is in keeping with the amendments made in another place and entrenches the separation, rigidly splitting the scheme.

The main matter before us is clause 12, and I draw the Committee’s attention to amendment No. 6, which would delete it. It is important to spend some time on that to understand why the Government seek to remove the clause and restore the scheme to its original envisaged structure.

Clause 12 requires the Secretary of State to make provision for the appointment of patient redress investigators and for the Healthcare Commission to maintain a list of investigators and oversee them. The amendments made in the other place seem to intend that a panel of patient redress investigators should be created, but that is not specifically laid out in the clause. Indeed, it does not answer many other questions, and I urge the hon. Gentleman to give us some of the detail of the scheme envisaged. How many patient redress investigators do the Opposition have in mind? Who will they be? How will they go about investigating the facts? Who will pay their wages? Those are serious questions, and those who advocate the structure in clause 12 need to put the detailsbefore us.

There are several serious problems with the clause, not least that it adds an additional layer of bureaucracy and works against a primary aim of the Bill, which is to encourage and facilitate local learning.

John Baron (Conservative, Billericay)

Let us start our debate by discussing the Government’s line that we are adding to bureaucracy. Nothing could be further from the truth. We are accepting the structures that are in place. All we are doing is trying to simplify process by separating fact finding from fault finding. That is not adding to bureaucracy. The bureaucracy would have to exist anyway under the scheme as the Government would like it to be. All we are saying is that there should be an independent person at the top to guarantee its independence. That is not adding to bureaucracy.

Andy Burnham (Labour/Co-operative, Leigh)

I hope that the hon. Gentleman will develop that train of thought, because I do not believe it possible to say that the proposal will not increase bureaucracy. We have in mind a single, unified scheme whereby the NHS can provide a fast-track settlement system out of court, so that redress can be provided to individuals who seek it for harm done in the course of their health care.

Clause 12 and the related amendments seek to create a split in that scheme, in that an army of investigators would be accountable to the Healthcare Commission, and, separately, the NHS Litigation Authority would examine the findings of their work and be responsible for them. Will the hon. Gentleman tell me in clear terms how those proposals do not add a layer and a brake in the scheme? I would be grateful if he explained. As far as I can see, they clearly do.

John Baron (Conservative, Billericay)

The Minister must accept that his scheme, as envisaged, is a two-stage scheme anyway. According to the Secretary of State on Second Reading, the trust will first investigate the facts, then pass the case to the NHS Litigation Authority for assessment of liability. Even within the Government’s scheme, there is a two-stage process.

All we are saying is that we want a one-stage process. We want the fact-finding stage only, to ensure that lessons learned are not lost in the system and the national health service. Fault finding can be determined by the NHS Litigation Authority—that option exists—or the patient can go elsewhere to a resolve-type scheme and so on. The bottom line is that the Government scheme, as presently constituted, involves a two-stage process anyway, as confirmed by the Secretary of State on Second Reading.

Andy Burnham (Labour/Co-operative, Leigh)

I do not disagree with that point. The hon. Gentleman and his colleagues have made great play of the point about separating fact finding from fault finding. The scheme, as envisaged, has a separation between those two functions, in that an investigation will be carried out at local level by the organisation concerned, which would be followed by decisions on liability, taken by the scheme authority, and subsequently on quantum, if relevant, on the basis of the facts of the investigation. There is some separation of functions, but within the structure of a unified, single scheme.

Let us be clear that a significant number of investigators would be required if they were to be able to investigate the volume of complaints made. Last week, I answered a parliamentary question from the hon. Member for Hornsey and Wood Green (Lynne Featherstone), and the number of complaints handled every year by trusts was detailed trust by trust. The volume is huge, and the data will be provided to Committee members for reference. We would be talking about an enormous volume of work, should that be passed to an independent body of investigators.

The hon. Gentleman proposes that the investigators should be accountable for their work and overseen by the Healthcare Commission. That is separation between their function and the assessment of liability and quantum by the NHS Litigation Authority.

John Baron (Conservative, Billericay)

The Minister talks about a massive increase in the number of investigators, but fails to recognise that the apparatus, structure and administration are already in place. All we suggest is that at the top we have one person, an NHS redress investigator, who is truly independent and oversees the fact-finding stage. In other words, we are simplifying the process. I do not think it can be claimed that we are adding to bureaucracy or cost because, in essence, we are changing one person at the top to ensure the independence of the investigation. I think that the Government have misunderstood our proposals.

Andy Burnham (Labour/Co-operative, Leigh)

Maybe, and it is for the hon. Gentleman to convince me that we have not. Clause 12, which we did not want, talks not about a single investigator who is responsible for the scheme but about investigators:

“The Secretary of State shall by order make provision for the appointment of suitably qualified patient redress investigators who shall have conduct of the investigation of the facts of cases in accordance with section 6(2)(a).”

I take that to mean that those people will be permanently employed in that role. If they are to be independent, is the hon. Gentleman saying that they cannot be employees of the organisation of which they are investigating a complaint? He has not risen to correct me, but clearly if he is saying that investigators have to be independent, it follows that they would not be employed by the organisation. That will give rise to all kinds of cost and bureaucracy.

Graham Stuart (Conservative, Beverley and Holderness)

Why?

Andy Burnham (Labour/Co-operative, Leigh)

The hon. Gentleman asks why, but his hon. Friend the Member for Billericay said the investigations are already being done and that things are already in place. It is not so. There is not an independent patient redress investigator assigned to each trust or region of the country; they do not exist. The function to be created under clause 12 will add cost. On Second Reading either the hon. Member for Beverley and Holderness (Mr. Stuart) or one of his hon. Friends talked about suitably medically qualified patient redress investigators. If he could explain how and where that is replicated in the current system, I would be interested. Comparisons were drawn with the coroner system, no less. The Opposition are not proposing something that replicates, reassigns or repackages what happens at a local level but an extremely different scheme. I would be interested to know how the hon. Member for Billericay feels that I am wrong in drawing that conclusion.

John Baron (Conservative, Billericay)

The Minister raised two issues. The first was about clause 12(1) and its mention of “investigators”. Obviously, we cannot have just one investigator in the whole country to determine such issues. A number of investigators around the country will fulfil the role, but it will result in only one investigator per scheme. That brings me to the Minister’s point about cost. We must not forget that the cost is not additional but inevitable, since there has to be an investigation whether it is carried out by the NHS Litigation Authority, the trust or independent investigators. The cost is established, but the question is who sits at the top and who oversees the fact-finding stage. We suggest that NHS redress investigators are at the top, independently chosen and independent by nature, to ensure that the scheme is given independence.

The structure exists anyway, and the redress scheme has an inevitable cost. There has to be an investigation, and it is merely a question of who sits at the top.

Andy Burnham (Labour/Co-operative, Leigh)

The hon. Gentleman is merely confirming that neither he nor his Friends in another place have thought the scheme through. The terms of clause 12 suggest that all cases would be investigated by a patient redress investigator who lays out clearly that they shall have conduct of the investigation of fact in accordance with clause 12 (2)(a), which says that a patient redress investigator shall

“conduct the investigation of the facts of a case in accordance with the rules of natural justice; and... produce a report on the principal findings of the investigation.”

I cannot understand how one or two investigators in a region could do that for every case. The hon. Gentleman also said the proposal was not additional, but it clearly is. He just said that these people would be put in place in a particular region to carry out a particular contract.

The major objection is not to the cost. The proposal envisages a very different scheme from the one we have in mind. It would replicate in the NHS redress scheme the style of investigation carried out under the legal process, but the whole point of the scheme is to create a breathing space; a period in which the NHS can face up to its failings and make appropriate redress. The hon. Gentleman’s proposal would create a substantially different scheme that does the same job that would now follow from the legal process.

Siôn Simon (Labour, Birmingham, Erdington)

I do not know what point my hon. Friend has reached in his remarks and how much else he will go on to say, but it is worth making the point that he has chosen to focus on clause 12 as the substance of the issue. Lots of outside organisations have taken an interest. It does not seem to me that clause 12, or the Tory scheme, is the substance of the issue at all. The Tory scheme seems at best to be a distraction, and probably most realistically a rather opportunistic and ultimately irrelevant separate scheme for the sake of having a separate scheme.

The substance of the issue is how we can best amend a very good Bill, going with the grain of some very progressive developments, by introducing an element of independence. Unlike the Tories, I do not mean a whole army of investigators. I mean some sort of jointly instructed medical expert who is independent. I will come on to that should I catch your eye later,Miss Begg. Opposition Members may mean all kinds of things by independent schemes but I do not think very many people take this seriously and I urge the Minister to not get too bothered about it.

Andy Burnham (Labour/Co-operative, Leigh)

My comments on clause 12 should not give the impression to my hon. Friend and others that I am in some way dismissing the principle of some independence within the scheme. I am certainly not doing that. I would be happy to continue to have a dialogue with him and others as to how investigation of the facts could be done in such a way that people can have confidence and trust in it. That will define the success or otherwise of the scheme. If people feel that it has been done fairly, fully and impartially, they will more likely accept the conclusion. I am grateful to him for making that distinction and would be willing to talk to him about how one can combine more impartiality or more confidence-building into the scheme. I will come to that later, and in clause 8 we will touch on independent legal advice that would be available to patients.

My hon. Friend mentioned jointly instructing experts. That is something that we will come on to in discussing the scheme and which could give confidence to an individual patient. I am happy to work with him on these matters, and he is right to dismiss the army of investigators for the nonsense that it is.

Graham Stuart (Conservative, Beverley and Holderness)

The Minister has said to his. hon. Friend the Member for Birmingham, Erdington (Mr. Simon) that he is prepared to discuss the idea of independence being injected into the system. Notwithstanding the regrettable tone with which the hon. Gentleman commented on our proposals, there is nothing in the idea of patient redress investigators that requires them to be full-time investigators.

If we want independence injected into the system, there is nothing to stop investigators who currently conduct investigations from being independent, as the Minister said, which is odd, considering what he told the hon. Gentleman. If we want independence, the investigators should not be employed by the organisation. One simple improvement to the Bill would be for the people who currently investigate not to do so for the organisation by which they are employed. Independence would be put in place, at no great expense.

Calling the investigators patient redress investigators would help reinforce that point and be an entirely constructive move. It could not be less opportunistic if it tried. I hope that we can take a more cross-party approach to injecting proper values into the debate.

Andy Burnham (Labour/Co-operative, Leigh)

It is important to be clear about what is meant by clause 12. I do not disagree that it is important to have an element of independence, but I am not giving something new. The scheme that we propose binds in elements of independence all the way through. Free independent legal advice will be provided to patients at the point at which a decision is made about whether to accept the offer of redress under the scheme. That is independence and, as I said to my hon. Friend the Member for Birmingham, Erdington, provision has been made for the scheme member, jointly with the patient, to instruct an independent expert. There is independence in the scheme.

Perhaps I read clause 12 differently from other hon. Members, but it says that a patient redress investigator will conduct an investigation in every case. We have in mind a different scheme. The scheme that we envisage is not one in which there is an adversarial atmosphere or a climate of fear or suspicion of an investigator coming in to conduct an investigation and put people on their mettle. The purpose of the scheme is for the NHS to face up at an early stage to something that has gone wrong, to encourage staff to be open and up front about it, and to enable them to come forward about what has gone wrong.

The point is for the NHS to take ownership of the issue, for the patient and the NHS thereby to have a more positive experience, and for a learning culture to be promoted in that organisation, rather than for the investigator just to arrive and begin his investigation. As hon. Members know, from other aspects of public service, that does not necessarily produce the right spirit or culture within an organisation, in that it tends to make people turn inward and become concerned, rather than making them feel that the environment is supportive and that they are going to get to facts in a way that neither points fingers nor apportions blame.

Charles Walker (Conservative, Broxbourne)

Will the Minister clarify who, in his vision for the Bill, will investigate a complaint and how that will differ from what currently happens? Will a different person conduct an investigation or will the same person who conducts one now do so, albeit under a slightly different guise? I am slightly confused and would be grateful if the Minister clarified that point.

Andy Burnham (Labour/Co-operative, Leigh)

The hon. Gentleman is right to say that NHS trusts are carrying out that work at present. Clause 10(2)(h) requires

“a member of the scheme to charge a specified person with responsibility for overseeing the carrying out of specified functions conferred on the member under this Act and advising the member about lessons to be learnt from cases involving the member that are dealt with under the scheme”.

That says clearly that one individual in a trust will be given responsibility for overseeing and carrying out the specified functions under the scheme. The scheme authority would use staff already in place to do that work, at trust level and at the level of the NHS Litigation Authority.

Charles Walker (Conservative, Broxbourne)

In essence, therefore, it formalises what already happens. It does not seem to be a big shift from what happens now. If so, why should patients have any more confidence in the system than they have now? I know that some Labour Members share my concern.

Andy Burnham (Labour/Co-operative, Leigh)

That is a fair question. As I said to my hon. Friend the Member for Birmingham, Erdington, it will create a different space in which we hope such matters can be resolved to everybody’s satisfaction. The hon. Gentleman will have had constituency cases, as have I—they can be confusing—when constituents come to us with complaints. There can be a slight stand-off if it is not clear whether the patient is considering taking legal action. If a person has commented that he will take his case to the lawyers, a difficult period can follow during which the trust is not clear exactly how the complaint will go forward.

Some of the deficiencies of the current system mean that people feel that they have no option but to take legal action. They believe that the system does not seem to be listening to them; they want the machine—the system—to hear what they are saying; and, my goodness, we all know that from time to time the machine does not hear what they are saying because we hear of cases that make us all concerned. Because they do not feel that they get proper engagement, people believe that their only option is to go down the legal route, and the whole point of the Bill is to try to create a different culture when handling such matters. That is the nub of the matter.

The Bill will create a local space to help people who have been involved in an adverse incident; it will allow an open process whereby the facts can be put on the table and a learning experience can happen within the trust. That will allow people to find out what went wrong and why, rather than immediately retreating against the threat of legal action, with staff thinking about recovering positions and about protecting themselves from action. That is absolutely the purpose of the Bill.

My hon. Friend the Member for Crawley (Laura Moffatt) made an important speech on Second Reading, when she spoke about the effect on nursing and clinical teams when such incidents take place. Although we talk endlessly about patients—it is a patient-focused scheme—we must have regard for the effect on NHS staff involved in such cases. It is not necessarily in their interests, or in the patients’ interests, that a long legal process should ensue as we attempt to find out the facts of the case. That is the nub of the matter.

Nick Hurd (Conservative, Ruislip - Northwood)

The Minister is indeed addressing the nub of the matter. Following the line of questioning introduced by my hon. Friend the Member for Broxbourne (Mr. Walker) if the right to pursue the matter in court is not being taken away, and if what the Government propose is a process of fact finding that is basically the same as it is today, what is it that will transform the culture of “never say sorry” mentioned by the hon. Member for Crawley on Second Reading? What is the catalyst for change within NHS staff?

Andy Burnham (Labour/Co-operative, Leigh)

It will happen because the scheme formalises that process of investigation, explanation and apology—it is in the Bill, in primary legislation. That separates out the confusion, referred to by my hon. Friend the Member for Crawley, about what we could say if there were a legal problem and we said sorry about something. The amendment would make the scheme very different.

As I see it, the scheme creates and carves out a breathing space in which that process can happen. The hon. Member for Ruislip-Northwood (Mr. Hurd) and other Conservative Members seem to have a pessimistic view of the scheme and believe that the NHS will not be capable of coming to a fair conclusion. In my view, underlying the amendment are a basic lack of trust and a pessimism about the ability of the system, on the back of the scheme, to come forward with a fair and impartial judgment and then an apology and explanation. However, we are doing something different—creating a climate in which NHS staff can feel that they are operating in a different culture.

That is the important point. I hope that I am not an eternal optimist; I do not believe that I am.

John Baron (Conservative, Billericay)

The Minister is absolutely right in the sense that this issue is the nub of the problem and of what should be discussed. However, there would be more chance of an open, transparent, independent process if the adversarial aspect were taken out. That is what we propose. We are saying that the fact finding must be separated from the fault finding and that the investigation should simply find the facts.

The Government intend to bring into the scheme the concept of determining liability and awarding compensation. However, that would not make for an open, transparent investigation because part of the process would involve determining liability. If we took that out and simplified the process, we would be more likely to have an open and transparent investigation and, as my hon. Friend the Member for Broxbourne (Mr. Walker) pointed out, a better chance of transforming or changing the culture in the NHS so that it was open and addressed the issues at hand.

We are more likely to achieve that if we take the issue of determining liability out of the equation. People tend to close and clamp up a little as soon as lawyers are involved and there is the threat of litigation and determining liability.

Andy Burnham (Labour/Co-operative, Leigh)

We have a genuine disagreement. In my view, the scheme as we envisage it takes the adversarial element out; the creation of the patient redress investigators would reintroduce it in an unhelpful way that would not be conducive to the open and constructive resolution of complaints.

It is absolutely crucial that the process of redress under the scheme should be integrated with the other functions that scheme members will continue to have, such as that of handling complaints, risk management procedures and clinical governance, to which my hon. Friend the Member for Kingston upon Hull, North (Ms Johnson) rightly drew attention this morning.

The work will complement all the other work that the trust, with the National Patient Safety Agency, has under way to improve patient safety. The provisions sit properly at that level. The hon. Gentleman’s scheme would introduce the adversarial element that we seek to remove.

John Baron (Conservative, Billericay)

This point of difference between us about how best to ensure openness is so fundamental that it is important to dwell on it for a second. Appointing an independent redress investigator would replace a role that would have been taken by somebody within the system anyway, so there would be no question of cost arising. The cost of the investigation is fixed and inevitable; the only issue is about who carries out the investigation. All we suggest is that it should be an independent redress investigator.

Surely the Minister accepts that if lawyers are involved in determining liability in a redress scheme, and the NHS Litigation Authority is also deciding on issues of compensation, it is far less likely that there will be an open, transparent investigation than if it is confined simply to fact finding, very much along the lines of the Inquiries Act 2005. The scrutiny of that legislation has been well documented. I am conscious that this is an intervention, but I shall just quote the explanatory notes to the Act, which state that

“inquiries under this Act have no power to determine civil or criminal liability and must not purport to do so.”

However, they are empowered to investigate the facts. That is not adversarial, and therefore investigations are more open and transparent.

Andy Burnham (Labour/Co-operative, Leigh)

I am afraid that we will simply have to disagree on this. I could give the hon. Gentleman examples of trusts that have effective ways of integrating complaints and claims handling, infection control and patient safety—issues that are properly dealt with at local trust level. I shall disagree with him on this possibly until we have dealt with this Bill. I do not believe that we can do anything other than createa culture of defensiveness—the hon. Member for Beverley and Holderness also mentioned this—if somebody from outside the organisation comes in to carry out “an investigation”. I do not for the life of me understand how that can create a situation in which people feel that the organisation is opening up to mistakes and failings, taking ownership of them and wanting to make proper redress.

Judy Mallaber (Labour, Amber Valley)

Givenclause 12(2), I cannot understand how the system will work in such a way that the facts are totally distinguished from liability. As one reads it, a report will be produced that will include

“any lessons to be learnt in accordance with section 10(2)(h)”,

which will provide the basis for considering any assessment of liability in tort. I do not see how those elements can be divided in the way set out in the clause. I would like to ask the hon. Member for Billericay exactly what counts as a suitably qualified patient redress investigator. Is it a lawyer or a medically qualified person?

I return to the question of what would make the scheme work. In the tragic case to which I referred this morning of my constituents whose daughter died of meningitis, they immediately went to the papers asking for an inquiry. They did not realise that there was a possibility of having something independent. I have a primary care trust that was desperate to carry out an inquiry to get to the bottom of what happened, because it was critical to do so. We have just had another case of meningitis in the same school, and people have died of it in my constituency, so it is a big issue. The PCT was desperate to investigate and the family were desperate to have an inquiry but they did not know that there was a process for that, and there was a danger of their taking the legal route.

When both sides want the same thing, it is important to give them reassurance and to know that the independent assistance that they could have would help them to set out the facts of their concerns. That is provided for in the Bill. As I understand it, the legal advice provided for in the Bill is about establishing whether any offers that are made are reasonable. Obviously people would want to know that in order to decide whether to adopt their other rights of using the legal process to get a better result, but in this tragic case it would have helped if my constituents had knownthat it was possible to have an inquiry to the benefitof all concerned without immediately getting into defensiveness.

Andy Burnham (Labour/Co-operative, Leigh)

My hon. Friend is absolutely right to make that point. The whole purpose of the scheme that we have in mind is to provide resolutions quickly and for the nature of the problem to be quickly understood. Regardless of the issue of independence versus local people taking ownership, a quality investigation is far more likely to be done quickly by people who understand, or were involved in, the case, because they will clearly understand the facts and will be able to establish them quickly.

I do not accept for a moment that it will simply be a case of handing the facts down to patients and saying, “Accept them.” As I said at our previous sitting, I often find that patients who go through the current process enter into a dialogue with the trust. The letter will come back, and they will say, “Oh, no, that didn’t happen. I went to ward X, not ward Y. I was waiting there. This is what they said to my husband.” They go through a process of challenging the facts, and I see no reason why the same will not happen under the scheme before us—indeed, I am sure that it will. As my hon. Friend rightly said, those who do not have confidence in the facts at the end of the process—this comes back to the trust point that I made in response to my hon. Friend the Member for Birmingham, Erdington—will seek another route by which to gain redress.

One thing we must not lose sight of is that the scheme is about giving those who are, let us say, less articulate, less wealthy and less likely to go to an MP access to the justice that they do not currently get—that is the crux of the scheme. The hon. Member for Beverley and Holderness asked what was new in the scheme. What is new is that it puts a duty on scheme members to take an active approach to identifying cases that might be eligible, triggering investigations into them and making redress where appropriate. The hon. Member for Romsey (Sandra Gidley) was right to ask whether patient consent should not play an important part, and of course it should, but what is new and different about the scheme is the duty that I described. That is what we think makes it extremely attractive for patients and the NHS.

Graham Stuart (Conservative, Beverley and Holderness)

Would the Minister take us carefully through how the investigation under the Government’s proposals would differ from that under the Opposition’s proposals? He suggests that the investigation would be more expensive, bureaucratic and adversarial under our proposals. We have dealt with the adversarial point, but would the investigation be more expensive because an independent investigator would be more thorough? Would it be more expensive, fundamentally, because somebody independent came in, as opposed to someone inside? I am unclear why the Minister believes that, fundamentally, it would be a more expensive process. If the investigation were of the same thoroughness, regardless of who carried it out, exactly the same quantum of work would be involved, as my hon. Friend the Member for Billericay said. The person establishing the facts would simply be independent.

The Minister said that his scheme—he makes this sound like a strength of his argument, but it is the opposite—would help those who are less articulate and who might be put off by a legal process. He also said that things would happen more quickly if the investigation were carried out by people involved in the case. He has said on the record, therefore, that people involved in the case might do the investigation and then present the facts as they saw them to somebody who was not articulate and who had nobody else to help them establish the facts because no independence was involved in establishing them. How can that be an improvement? Would the Minister explain?

Andy Burnham (Labour/Co-operative, Leigh)

I shall begin with the hon. Gentleman’s last remark and perhaps clarify it. Perhaps I gave a misleading impression, but I am not saying that the individual who led the procedure should be asked to inquire into what went wrong. I am saying that it makes sense for somebody in the trust who has a working relationship with that person to talk to them and to get to the bottom of what went wrong. It is much better for a colleague who works in the trust, whom the person knows and with whom he or she has had a long working relationship, to establish the facts of the case than it is for some unknown person to arrive and be the investigator. I am not saying that the individual who led the procedure should be the judge and jury and say, “This is it, like it or not,” because there would be a conflict of interest. I did not say that.

Graham Stuart (Conservative, Beverley and Holderness)

You did, but I accept that.

Andy Burnham (Labour/Co-operative, Leigh)

Okay. I am happy to have the chance to clarify the matter. It is important that those who know and work with people can work with them to get to the facts.

Laura Moffatt (Labour, Crawley)

Does my hon. Friend the Minister agree that while, initially, it seems attractive to have a second team that is able to do the investigation, that would not address what the Bill is attempting to do, namely change the culture within the NHS so that it can grow up and understand that things go wrong and people want proper redress, quickly? If we go back to business as usual, and a team comes in to do investigations, we will be back to square one and will not have tackled the basic problem of responsibility.

Andy Burnham (Labour/Co-operative, Leigh)

My hon. Friend speaks far more authoritatively on these matters than ever I could. I agree entirely that the scheme is an attempt to change the way in which things are done. In direct response to the hon. Member for Beverley and Holderness, I would argue that if we are to achieve that which all members of the Committee profess to want—more learning and more openness at local level—it is vital that scheme members play a fundamental role in identifying and investigating possible mistakes. The two are indivisible. The point about the hon. Gentleman’s scheme is that we can still have the other scheme, the independent process that ends in the courts; nobody signs away his right to that process should he not get redress under this scheme.

Charles Walker (Conservative, Broxbourne)

The Minister makes a good point. Let us focus for a second on the patient, who is very upset. He has just lost somebody, or something has gone badly wrong. Who will advise him on the processes and opportunities open to him to bring a complaint? How will the trust conduct the process, and who will be responsible for making the first contact with the patient?

Andy Burnham (Labour/Co-operative, Leigh)

The hon. Gentleman raises a good point. As I just said to his hon. Friend the Member for Beverley and Holderness, the Bill creates a new duty to get the process under way without waiting for a complaint to be made. That is part of the new culture, to which my hon. Friend the Member for Crawley rightly draws attention. It is not a case of getting away with it if nothing comes in, and hoping that a complaint is not made. The point is that the system will trigger an investigation when it is known that things have not been satisfactory. It will require patient consent for a matter to go fully through the redress process, but this is an attempt to create a different system.

I make no apology whatsoever for saying that this scheme will help those who do not feel inclined to take legal action or to go to their MPs but who, nevertheless, feel that they have been on the receiving end of poor care and are deeply dissatisfied about their experience. One of the main justifications for a scheme of this kind is that it broadens the access to justice of people in that position.

John Baron (Conservative, Billericay)

The Minister said that one aspect of independence is that patients will still have a right to go to court if they are not happy. Is not the point of the redress scheme to provide an alternative to going to court? It would be absurd if the key to the success or fairness of the alternative were a right to appeal to the original.

Andy Burnham (Labour/Co-operative, Leigh)

Earlier today, the hon. Gentleman said—I agreed with him—that most people will come forward because they do not want the thing that happened to them to happen to somebody else. Let me put it to him that procedures and practices are more likely to be changed if an organisation has carried out its own investigation into what went wrong. I would argue that our route is more likely to achieve the principal aim of the scheme, on which he and I agree, than is the system that he envisages.

John Baron (Conservative, Billericay)

I take the Minister’s point about the need for change in the NHS. We agree on that. However, we are saying that there is a better chance of encouraging change if we take out the adversarial aspect of the investigation and leave it to the fact-finding stage.

Returning to credibility, I think that the Minister underestimates the importance of independence to credibility. Lessons must be learned, but the most important thing is that patients place credibility on the scheme. If we allow an organisation to investigate its own affairs, there is the risk that patients cannot be sure that it is fair. That would hurt the credibility of the scheme.

Will the Minister accept that if we want credibility, if we want the scheme to work and the nature and culture of the NHS to change, above all else it must have the credibility of independence, otherwise many other questions fall from it?

Andy Burnham (Labour/Co-operative, Leigh)

I do not take that point. On Second Reading, the hon. Gentleman and his colleagues talked about a system along the lines of the coroner system for the patient redress role. I think that they envisage a fundamentally different scheme. Effectively, he is asking us to endorse the principle that we have the adversarial scheme currently provided under the legal system, but at an earlier stage, under an organised NHS scheme. So I think that he is asking us to embrace something different, and to endorse an adversarial investigation as part of the NHS redress scheme.

John Baron (Conservative, Billericay)

Will the Minister give way?

Andy Burnham (Labour/Co-operative, Leigh)

No, let me answer in full.

That would create defensiveness, and would not aid the full establishment of the facts. The independence comes when people are offered legal advice at the end of the redress process. Only they will know whether they feel that the explanation given to them, as required by the legislation, meets with the experience that they suffered. If it does not, they can carry on with the process, and seek redress via the legal route. If they are able to, they will qualify for legal aid to do so.

Siôn Simon (Labour, Birmingham, Erdington)

I shall make my point again because Opposition Members are in effect repeating their same point—I am conscious that the Minister keeps hearing it and is obliged to keep replying to it.

Under the Bill and the proposed scheme, it will be perfectly possible to introduce an element of constructive independence into the system. When those of us who would have supported amendment No. 19, which we are discussing in this group, and who disagree profoundly with clause 12, talk about independence, we mean within the context of the scheme proposed in the Bill, in which the NHS will investigate itself. However, at a certain point in that process, if certain ideal situations are not reached, some element of independent arbitration, presumably commissioned jointly by both parties, would be the most constructive way forward. When we talk about independence, we are talking about writing that possibility more strongly into the Bill, as amended in the other place, in order to make such independence a right for people who reach that stage in the proposed scheme, within the NHS culture, as explained by the Minister.

I do not want the Minister to get the impression that Opposition Members have a monopoly on the argument for independence; they do not. Independence means something more constructive when used on the Government side, than when it is used on the Opposition side.

Graham Stuart (Conservative, Beverley and Holderness)

What is this partisan nonsense?

Andy Burnham (Labour/Co-operative, Leigh)

I hear the shouts from Opposition Members, but I agree with my hon. Friend. In making our decisions on the scheme, we need to create sufficient confidence in the process that happens under it. Let us be clear that no two cases will be the same. Some cases will be more deserving of the kind of extra scrutiny to which he refers than others. There will be some cases where it would not be appropriate. In such cases, the facts can be readily established, the explanation can be given and an apology can be made. Cases will differ.

It is right that we come on to amendment No. 19, because it raises important points. I shall happily move on in a moment, once we can move off these other issues. My hon. Friend is correct that we are not setting our face against independence. The crux comes when the person is asked to accept the offer. If they decide that they cannot do so and it is at the point before they sign any waiver with regard to their further legal rights, they will be offered the independent legal advice. We believe that such a provision crucially gives a measure of independence.

I am aware that my hon. Friend would probably want us to go further, but in considering this matter we must be careful that we are not replicating the process on the other side of the line. We should not create a system where unnecessary legal advice is given or where advice is commissioned to create a veneer of independence. The point is that we are trying to do something different. We are trying to get quickly to the point where redress can be offered rather than there being obfuscation and delay by the NHS as it seeks to investigate a complaint against it. The crucial point is when the independent advice is offered to the patient. My hon. Friend has hit the nail on the head in many ways. It is how we reconcile that balance within the scheme proper so that when we reach the point of redress being offered, patients are confident that things have been done fairly and properly.

John Pugh (Liberal Democrat, Southport)

I should like the Minister to move on, because I think that we are making heavy weather of this. A distinction between facts and liability seems to be at play. I have certain philosophical difficulties, as one can always be established independently of the other. I do not know whether negligence is a fact or a judgment on responsibility, but I suspect that it will probably be described as both. If those philosophical difficulties are set aside for a moment, if there are facts and liability and they are separate things, is not the fundamental discussion that we are having at the moment about whether things should be done by one agency or by two different ones.

The one agency is the agency being complained about. I do not think that there is disagreement on either side that if we were to opt for two agencies rather than one in-house agency, we would change and denature the scheme. The hon. Member for Ruislip-Northwood asked what the difference is between what is proposed by Opposition Members and what is supported by the Minister. If there is no difference, or if we cannot find any, he certainly should not be supporting an amendment on the subject.

The Minister is offering a scheme that everyone agrees is different from what is proposed by the Opposition. The Minister is robustly sticking to it. He regards what he has as a good thing but Opposition Members regard it as a bad thing. Unless the Minister has a change of heart and wishes the NHS to make a different offer, we are, in a sense, stuck repeating the same arguments.

Andy Burnham (Labour/Co-operative, Leigh)

The hon. Gentleman in the nicest possible way is helping me to move on, and I am grateful for his invitation to do so. I shall do so by picking up the important point about bureaucracy. Were we to go down the path that the Bill as it stands lays out, the scheme would create unnecessary bureaucracy and cost. The Healthcare Commission would be responsible for overseeing the investigation stage. The scheme authority would be responsible for the second stage, which is determining liability and appropriate level of compensation. No single body would have overall responsibility for the oversight of the operation of the redress scheme as a whole.

In our view, the scheme authority would be compromised and would have no power to ensure that the overall scheme operates effectively. The crucial point to which we keep returning is that we would weaken the vital link between investigation and learning, which was provided by the Bill before it was amended. I agree with the hon. Gentleman.

The Opposition have a further problem, in that the Healthcare Commission says clearly that it is neither qualified nor inclined to take up the role envisaged for it by clause 12. Opposition Members should give careful thought to that.

John Baron (Conservative, Billericay)

We and the Liberal Democrats in the other place met the chief executive of the Healthcare Commission. The commission is happy to take on the supervisory role, but the Minister is right that it did not want the secretarial role, so I would ask him to double check his facts in that regard.

On the Minister’s point on costs, he still has not explained how or why they would be substantially increased under our proposal. The cost of an investigation is fixed and inevitable. I repeat the point because he seems somewhat unwilling to address it. If the cost of an investigation is fixed and inevitable, the only issue is who carries it out. If we are simplifying the role of the scheme to one of fact-finding, it cannot be claimed that we are adding to the bureaucracy.

Andy Burnham (Labour/Co-operative, Leigh)

Let me pick up on the hon. Gentleman’s first point. If he is saying that the Healthcare Commission is ready to take on the role, but has caveats about the scope of that role, why has he not taken the time or trouble to try to amend the Bill to give the Healthcare Commission a role that it feels it can carry out? Clause 12 (5) requires it to

“maintain and publish a list of patient redress investigators”—

the maintenance of such a list seems to me to be a duty that requires proper safeguards and checks to ensure that people are appropriate to be an investigator—and to

“have responsibility for overseeing the carrying out of the functions of such investigators.”

If the hon. Gentleman is saying that the Healthcare Commission does not accept the full role that the Opposition envisage, why has he not tabled amendments to curtail that? The role envisaged is broad and would involve supervision of the operation of the scheme. The Healthcare Commission would be responsible for all the redress investigators and the work that they carried out. That is the guts of the scheme. I return to the point that I have no confidence that that amendment has been properly thought through, or that there is any detail to support the proposals.

Opposition Members might express surprise, but I have yet to find out how many patient redress investigators they envisage, although I heard on Second Reading that they would be akin to coroners. We are left in the dark on all kinds of things. If the commission does not accept the role as it stands, why on earth have the Opposition not tabled amendments to change it?

Judy Mallaber (Labour, Amber Valley)

Has my hon. Friend heard Opposition Members give any description of the patient redress investigators other than, “It’s the person at the top.”? That fills me with horror about the pay involved and so on. Until we know how many there will be, what they will be and whether—as I asked earlier—they will be lawyers, medically qualified people or maybe like coroners, we can have no sense of whether the proposals are bureaucratic or costly and whether they make any sense.

We know that a separate tier will be created. As my hon. Friend the Member for Crawley said, it will stop the NHS taking responsibility for its own mistakes by accepting that responsibility, which is what the scheme that was previously proposed did.

Andy Burnham (Labour/Co-operative, Leigh)

I agree. There is such a lack of detail about the proposals and a wooliness of thinking that it makes one despair that such stuff should be brought forward and we could be asked to consider it seriously.

Siôn Simon (Labour, Birmingham, Erdington)

I have resisted making the point, but it leaps out at me. I invite the Minister to agree that the proposal from the Tories—and I think the Liberals too—seems extraordinarily Napoleonic. It is an incredibly inquisitorial, Napoleonic, continental, un-British and foreign way of going about things. One wonders what the Tory party has come to when it can recommend something so profoundly continental and foreign as a good idea.

Stephen O'Brien (Conservative, Eddisbury)

You were right first time: you should not have made the point.

Andy Burnham (Labour/Co-operative, Leigh)

At moments such as this, I am glad that the hon. Member for Stone (Mr. Cash) is not on the Committee, because the mere mention of a continental-style scheme could have had him out of his seat. It feels to me distinctly un-Conservative to propose the creation an army of bureaucrats who are empowered to go round the country snooping, investigating and looking into the affairs of NHS trusts. It seems unusual for the Opposition to propose such a scheme. If they are wedded to that proposal, I would be grateful if they made available the supporting detail. My hon. Friend the Member for Birmingham, Erdington is right to draw attention to that sheer lack of detail.

Concerns have been raised about the cost ofclause 12. Modelling work undertaken by the Department projects a possible cost of independently investigating all redress cases of as much as £41 million in the first year. That is the estimated additional cost of the scheme envisaged by the Opposition.

Charles Walker (Conservative, Broxbourne)

My Lib Dem friends have been rumbling away on opportunity costs, but I am slightly confused. Why would it cost any less for the NHS to investigate its mistakes than for someone who was not part of the NHS hospital management structure to do exactly the same job? The Minister’s mathematics—or, dare I say, the mathematics of his civil servants—is intriguing and a little confusing on that point.

Andy Burnham (Labour/Co-operative, Leigh)

I shall go through the detail for the hon. Gentleman. Opposition Members might find it uncomfortable, but the figure that I quoted is the figure that has been arrived at. The hon. Member for Billericay called our figures spurious on Second Reading, so I hope that he will have cause to reflect on that when I give him some of the detail.

The other point that the Opposition might not like to accept is that they envisage a new function that is different from what is done now, so how can they dismiss the notion of additional cost? They propose that the function be performed by an independent investigator, not by somebody employed by the trust and working within it on patient safety, clinical governance and the complaints system.

The Opposition tell us that they envisage a number of people working at the regional level, which is additional to what is provided. Our modelling, based on the information, shows that the average cost of independently investigating a complex complaint, such as one that might be made in a clinical negligence case, is £2,500. The number of claims settled for less than £20,000 represents approximately 75 per cent. of settled claims. We expect a similar proportion to be covered by the new scheme, although exact numbers are hard to predict.

The intention behind the scheme, however, is to make seeking redress more straightforward. We therefore expect more people to come forward. Modelling work based on patient safety data suggests that improved access to justice under the scheme could cause claims to rise by anything from 2,200 to 19,000 a year. We expect the number of cases falling within the scheme to range between 5,800 and 16,600 in year one.

Making each case subject to independent investigation would result in a total cost of £41 million, based on the figures that departmental stakeholders have provided to us through independent investigations. On the lowest estimate of 5,800 cases, the additional cost to the NHS would be some£14 million, but we expect significantly more cases to be identified under the scheme.

John Baron (Conservative, Billericay)

Those figures are completely spurious and I sincerely ask the Minister to check them with his civil servants. The bottom line is that the cost of investigation is fixed and inevitable; the issue is who carries out the investigation.

If we are simply deciding on the change regarding who will carry it out to ensure that there is independence, how does the Minister get the figure of £41 million when all we are saying is that the person at the top should be independent and should replace the person whom the Minister no doubt envisages?

I ask hon. Members to bear it in mind that fact finding is essential to fault finding, and that under the Government’s proposals the fact-finding stage will have to be gone through anyway before the point of determining liability is reached. All we are saying is simplify the scheme by restricting it to fact finding, but ensure its independence by having redress investigators. How can that add £41 million?

Andy Burnham (Labour/Co-operative, Leigh)

Let us take the lowest estimate, and suppose that there are 5,800 cases in year one. We are confident that the figures are not spurious. The scheme has been created carefully, with an eye to how many cases will come forward based on historical trends in clinical negligence cases under the limit that we are setting and on the fact that the scheme is likely to encourage more people to come forward who may not otherwise pursue a case. The figures are not plucked out of the air, but are grounded in fact.

If the hon. Member for Billericay is saying that there is no additional cost to investigating all those cases independently, I strongly disagree. I do not accept that it is exactly the same and that it requires simply that people be reallocated to different duties.

If investigators are to be independent of thescheme members, as the hon. Gentleman envisages, and medically qualified—the point that he and the hon. Member for South Cambridgeshire (Mr. Lansley) made on Second Reading—it is inconceivable that there would not be significant extra costs to the scheme.

Furthermore, there would be significant extra administration involved in setting up such a group of people, which would be accredited and maintained on a database, as outlined in the proposal made by the hon. Member for Billericay. When I mentioned the figures, Opposition Members fell about laughing, but I ask the hon. Gentleman to tell me what the figure should be. If Opposition Members are saying that they have it absolutely proven that there would be no additional cost, will they give me the details? As it is, they want it both ways: they are not providing any detail, but they are rubbishing our figures.

Judy Mallaber (Labour, Amber Valley)

Is my hon. Friend becoming as confused as I am by the hon. Member for Billericay? Did he not just say that only the person at the top would be independent? If so, does my hon. Friend now understand the hon. Gentleman to be saying that the person at the top—the independent investigator—would simply supervise all the staff doing the fact chasing, or would that person have their own staff? The hon. Gentleman has referred to that person only as the person at the top. Who would be the staff under him, those doing the investigations?

Andy Burnham (Labour/Co-operative, Leigh)

I do not mind admitting that I am deeply confused, but I am not the only person in this room who is deeply confused about the nature of the scheme that the hon. Member for Billericay proposes. He said that the independence would come from the person at the top, but the Bill creates something entirely different. Indeed, on Second Reading, the Opposition talked about something entirely different in introducing these changes, but it is for them to answer those points.

As it is, we have no clarity whatever. As I understand it, under the scheme proposed by the Opposition, the investigators must be new people from outside NHS organisations—that is, not employed by the scheme members. Higher salaries would have to be paid if those people were to be medically qualified, because many of those who currently carry out the work at trust level are not medically qualified. People might not want to be reminded of that, but it is true. If those staff had to be relocated in order to carry out their functions, there would be further extra costs.

Sandra Gidley (Liberal Democrat, Romsey)

I find it difficult to follow the Minister’s logic. He seems to be saying that the cost of an independent investigation is something like £2,500, but it is not clear whether he thinks that that is the extra cost. Clearly, within that figure, which he seems to have extrapolated according to the predicted number of cases, there is an amount that an investigation would cost anyway. We believe that the Department’s maths might be at fault, but I shall give the Minister the benefit of the doubt at this point.

Andy Burnham (Labour/Co-operative, Leigh)

If an independent organisation carries out an investigation, the costs fall to the structure that is supporting that investigator in carrying out that particular function. We have heard a lot of noise from Opposition Members, but nobody has said who is to employ the investigators. If Opposition Members can tell us who is to be the employer of this army of investigators that is to set out to do the work, we might be able to bear down on the precise additional costs of the scheme. However, we have not had that level of detail, and at the moment we are simply considering a requirement that each case will be independently investigated by a patient redress investigator. Going by departmental figures, the average cost of an investigation into a complex clinical negligence claim is £2,500. People at trust level will continue to work on clinical governance. Those people should play that role, and they will do so once we delete the clause. However, it is right that we should have this discussion and, in the absence of anything else from the Opposition, demolish this ridiculous proposal.

John Pugh (Liberal Democrat, Southport)

There is a paradox in what the Minister says. He claims that his civil servants have carefully and meticulously modelled the proposal almost to the last penny, but that he barely understands the scheme. He cannot claim both things. Can I test his understanding of the modelling? Is there a presumption behind it that providing for independent investigators is in some way mirroring what is done by hospital managers who might, in a more adversarial climate, follow cases in some detail themselves? One could argue, prima facie, that hospital managers, freed from the chore of having to investigate a number of really complex cases, could do something such as getting their deficits down. However, if they are still consumed with issues of clinical negligence, the Minister has a better point.

Andy Burnham (Labour/Co-operative, Leigh)

On the hon. Gentleman’s first point, in the absence of any detail it is difficult for anybody to support the clause, or for us to begin to have a proper discussion. As I have said, we know that the people should be independent. We were told on Second Reading that they must be medically qualified. A parallel has been drawn with the coroners system, and we have heard different suggestions.

I have been told from the Chair that this is not a new clause; it is part of the Bill. In the absence of any detail, I hope that the Committee will agree that it is right that, in considering whether it should remain part of the Bill, we should rigorously test whether the costs are justified. Our figures, properly put together by the Department, suggest that those costs are likely to be close to £41 million.

Stephen O'Brien (Conservative, Eddisbury)

I have been listening carefully to the Minister, and he rests his case on a distinction in the understanding of independence, but above all on a comparison of costs and the introduction of new costs under the clause that he thinks are not supportable. If he is genuine in believing that he has a truly comparative set of figures—apples with apples, whether medically or non-medically qualified, because neither in the clause nor in his scheme do the people have to be medically qualified—and putting to one side the underlying suspicion that using an organisation that has to generate profit is bound to cost more than using those employed in the public services, because I am sure that he would not want to be so tendentious as to argue that, is he right to expect us to debate the subject without putting his calculations in the Library so that we can examine them? It strikes me—perhaps he will confirm it—that he is comparing the full employed costs in the Opposition’s proposals with the marginal costs used for the purposes of his own calculations. That is not comparing apples with apples.

Andy Burnham (Labour/Co-operative, Leigh)

I would draw a distinction between the discipline of today’s Conservative party and the discipline that we showed when we were in opposition. We would not have made such spending commitments without costings to support them. In fact, I would have been sacked as a health researcher had the then Opposition supported such a thing.

The hon. Gentleman challenges me about my figures, but he should give us clarity on the detail of what he proposes—how many staff, who will employ them, what will they do, how many cases will they investigate in a year? He should clarify the matter so that we can consider the costings that he seeks to impose on us under the clause. In the absence of that detail, we cannot be categorical about saying that it will be that much. I am confident that the independent investigation would place additional costs on the service, but we would lose the benefits—the local ownership of the problems, people facing up to the problems, the positive learning culture at the local level. I argue directly that the hon. Gentleman’s proposal would give us extra costs but take away the benefits of the scheme. On that basis, I think that we should reject it out of hand.

Siôn Simon (Labour, Birmingham, Erdington)

I do not want to detain the Minister on the clause—surely we have done it to death by now—but I ask him to confirm my understanding, which is that opposition to the proposal does not rest on the cost. It is anything but that; the argument rests on the fundamental flaws of a silly add-on to a sensible Bill. The Minister cannot be expected to take a completely vague set of proposals with no detail and assume that they will not have a cost. It seems to me that the Opposition have come up with a wide range of numbers. They completely refuse to put any detailon their proposals. The hon. Member for Southport (Dr. Pugh) says that the Minister cannot have it both ways; by the same token, nor can the Opposition. They cannot give us a half-hearted half clause with half a set of proposals and then damn the Government for not costing them exactly.

Andy Burnham (Labour/Co-operative, Leigh)

Absolutely; I could not agree more with my hon. Friend. I do not object to the proposal on grounds of cost. The question is whether what is proposed is worth paying for, and I say that it is not. Indeed, it is worse than that. It damages a consensual partnership-based scheme, replacing it with something that has the costs but not the benefits. I doubt whether the Opposition want to hear this, given the way in which they are flannelling around, but they have failed to hit the nail on the head.

If I may, I shall move on to amendment No. 19, which has rightly been mentioned. The amendment enables the scheme to make provision for the independent assessment of the eligibility of cases for redress under the scheme in specified circumstances. Clause 11 requires the Secretary of State to make provision in the scheme for the scheme authority to have functions in connection with the scheme. It is intended that the scheme authority will be an existing special health authority—the National Health Service Litigation Authority—which will be able to build on its existing experience and expertise in handling clinical negligence cases to support local organisations in delivering redress. The NHSLA has the resources, expertise, experience and skills mix to oversee delivery of the redress scheme. It has the systems to administer claims for clinical negligence against NHS bodies and an existing relationship with every trust in England as a result of its work on the clinical negligence scheme for trusts. That unique relationship means that it is in a strong position to be the scheme authority.

Amendment No. 19 would, in effect, provide for powers to enable decisions about eligibility to be made by a person or body other than the scheme authority. It would seem to be intended to allow an appeal against the scheme authority’s assessment of eligibility in specified circumstances, and I shall resist it because we have put in place sufficient safeguards, as I shall explain.

We recognise that there are real concerns that there should be independent oversight of the investigation so that it is not a purely in-house investigation. We have provided sufficient safeguards to address those concerns, but I shall continue to listen to what my hon. Friend the Member for Birmingham, Erdington has to say on the issue. The Bill puts in place a complaints mechanism for the redress scheme and provides for independent oversight of the investigation. In cases of maladministration, the health service ombudsman will ultimately determine whether cases have been dealt with appropriately. Maladministration has been interpreted to cover a wide range of bureaucratic bad practice, and that will enable the ombudsman to investigate allegations that individual cases have been poorly investigated. That is a lever to ensure proper consideration at local level.

John Baron (Conservative, Billericay)

I thank the Minister for giving way, because the issue of how we guarantee independence is important. Does he not accept, however, that the ombudsman can look only at the administrative and procedural, not the substantive aspects of the process? How can he claim that the ombudsman will guarantee independence when she will investigate only administrative and procedural matters?

Andy Burnham (Labour/Co-operative, Leigh)

The hon. Gentleman is correct that the ombudsman has no formal power to enforce her recommendations, but as he will know, those recommendations are almost always followed. The ombudsman will have a particular duty to report, not on whether the right conclusion was reached with regard to liability, but on the process and on the way in which the scheme is handled. That is only one of the measures that we are putting in place to ensure that there is independent oversight of the scheme. If I may make a point that was made on Second Reading, the current health service commissioner has welcomed the fact that the operation of the scheme will fall clearly within her jurisdiction, subject to the conditions set out in the Health Service Commissioners Act 1993. She says:

“I hope that the fact that an independent review...will be available will give reassurance to both complainants and the NHS bodies involved”.

I mentioned the intention that the Secretary ofState will devise a new national NHS standard relating to redress and that the Healthcare Commission will devise assessment criteria against which the operation of the scheme will be reviewed. That approach willalso provide an independent overview of the redress scheme at local level. Putting in place further provision for independent assessment would duplicate the ombudsman’s role and add unnecessarily to the bureaucracy and cost of the scheme.

Furthermore, as we have made clear throughout, the redress scheme will not remove a patient’s right to go to court. That right will remain throughout the process, up to the point where an offer is accepted. The scheme aims to fast-track deserving cases through the system and to make savings on unnecessary legal costs. It is to no one’s advantage to reject deserving claims and to force them into the courts. Doing so would work against the aim of the Bill and the scheme that we hope to create.

We have had a long debate on the point of these amendments. I hope that I can soon bring my remarks to a conclusion. One claim made by the Opposition in The Times today, no less, is that the NHS would be acting as “judge and jury”, as the quote would have it. We have had a long discussion about whether there should be more independence and whether the NHSis capable of coming up with a fair conclusion. I fundamentally believe that it is.

While it is true that there is a judicial authority requiring separation between fact finding and fault finding, that applies only where rights are being determined. It is crucial for Members to understand that no rights are determined under our scheme. Neither the NHS nor the NHS Litigation Authority is acting as a judge; the NHS may merely make offers that may satisfy a patient’s rights. There is no determination of whether they have the rights; it is simply that an offer may be made to prevent a legal process from taking place.

Overall, I firmly believe that the difficulties inherent in the proposed scheme structure currently laid out in clause 12 create confusion and will lessen the effectiveness of the redress scheme. The Government amendments that I propose would work to reverse the amendments made in another place: they would put back in place the strong links between scheme members and the scheme authority, reduce unnecessary bureaucracy and associated cost, and enable the scheme to fulfil its aims of better meeting the needs of patients harmed in the course of their health care and of enabling scheme members to learn from mistakes and improve service delivery.

Anne Begg (Labour, Aberdeen South)

Before I call speakers in the debate, may I just clarify a procedural point in the light of something that the Minister said at the beginning of his speech? Government amendment No. 6, which proposes to “leave out Clause 12”, has not been selected. Instead, should clause 12 stand part be pressed to a Division, at that stage it would be up to individuals who want it to be left out to vote against the clause standing part of the Bill.

Stephen O'Brien (Conservative, Eddisbury)

On a point of order, Miss Begg. Will you clarify that the clause 12 stand part debate will therefore be taken when clause 12 is reached in the course of our deliberations, despite its being grouped at this point for the convenience of discussion?

Anne Begg (Labour, Aberdeen South)

It is open for discussion under this group, but the vote will be taken as we proceed through the Bill in the correct order.

Stephen O'Brien (Conservative, Eddisbury)

I am grateful to you, Miss Begg.

John Baron (Conservative, Billericay)

I do not doubt that the Government’s proposals are well intentioned, but other Conservative Members and I believe that they will not be beneficial to patients. They will create confusion. The Bill, in its original form, made a number of errors that I shall, I hope, highlight during the debate on this clause. I welcome interventions from the Minister on the cases that I am sure that he and others—

Graham Stuart (Conservative, Beverley and Holderness)

Even if no one else will.

John Baron (Conservative, Billericay)

Yes.

Siôn Simon (Labour, Birmingham, Erdington)

Will the hon. Gentleman give way?

John Baron (Conservative, Billericay)

No, I would like to make some progress first.

We all know that reform is needed. The Conservative party approves of the spirit and intentions of the NHS Redress Bill. As we know, the state of clinical negligence is largely fuelled by legal aid. We also know that it is in a mess, and is protracted, costly, complex and wasteful. I do not think that any disagreement exists between us on those issues. A claim can typically take several years, with legal administrative costs often exceeding the money paid to the claimant.

The present system also does not reflect patient priorities. As we have discussed in this Committee, what is often required by the aggrieved patient is an explanation and apology, where due, and a reassurance that whoever committed the clinical error acknowledge his or her wrongs, that lessons are learned and that they have not been lost for the benefit of other patients. However, the system as it operates is not achieving that goal.

The system is also widely viewed as unfair. Most clinical negligence cases are legal-aid funded but most people are not eligible for legal aid. Of the vast majority who cannot access legal aid, many are put off pursuing a negligence claim because of the cost involved regardless of whether the grievance is legitimate.

The NHS is often in a no-win situation, as we know. Even the costs of winning a case are irrecoverable if the claimant is funded through legal aid, which might result in cases being settled out of court regardless of their merits because it is cheaper to do so that to contest them. Last year, some 6,200 legally aided clinical negligence cases concluded and it is not surprising to learn that 2,754 of those went beyond the investigation stage, with a substantive benefit in 56 per cent. of cases—roughly 1,400—and an overall success rate of 23 per cent. The hope is that the scheme will deal with that unfairness.

The issue is important because it partly explains the chequered history of the Bill, the origins of which go back to June 2003 when Sir Liam Donaldson published “Making Amends”, which considered the problems of the clinical negligence system and the options for change. As an aside, “Making Amends” was highly critical of the concept of tort, but its trouble was that it blamed the law for the ills of clinical negligence litigation when the real trouble was with the lawyers, or rather with their abuse of the legal aid system.

We have come full circle because tort-based liability is what the Bill will be about if the Government have their way. There is nothing inherently bad about tort law. It is part of the law of this country and applies generally. There is no reason why clinical practice in this country should not be subject to its scrutiny, but the redress scheme is not the place to do it. It is not a court and therefore it is not appropriate to determine civil liability. Determinations might not, therefore, be legally binding and it will replicate a court system without bringing closure, certainty or finality.

“Making Amends” contained 19 recommendations, but the Bill gives effect only to recommendation 1; the other 18 are not addressed. As we know, the Bill’s objective is to create a scheme for efficient and speedy redress for NHS patients who have suffered through negligence while receiving treatment. It is a laudable aim which we can all support.

The intended scheme provides investigation when things go wrong, remedial treatment, rehabilitation and care when needed, explanations and apologies, and financial compensation in certain circumstances. Its scope is ambitious and the Bill proposes a package of remedies—a one-stop shop, if I can put it that way—but it is the underlying policy that gives rise to our concerns.

The NHS redress scheme seems mainly to be concerned with compensation, since it can apply only where there is a qualifying liability in tort. It appears to be conceived as an in-house settlement-making process, rather than an independent judicial investigative process. In contrast to what the Minister has said, I would argue that it is adversarial rather than inquisitorial, because the Bill in its original form aims to involve determining liability.

Liability is to be assessed by the NHSLA rather than being determined by an independent tribunal, and compensation is to be offered by the NHSLA rather than awarded by an independent tribunal. Any offers, according to the Government, will be made without prejudice and neither offers nor settlements are to be regarded as an admission of liability for the purpose of any subsequent litigation. There can be no appeal as the process is not judicial. Offers are to be accepted or rejected on a take-it-or-leave-it basis.

The concept of a one-stop shop is superficially attractive, but on closer inspection the Bill was found to be fraught with problems. It was over-ambitious, attempting to combine conflicting functions. It confused fact finding with fault finding, inquisitorial with adversarial and open proceedings with without prejudice proceedings. The Bill was fundamentally flawed as it did not provide what was needed, which was an open, independent fact-finding investigation that reflected the interests and priorities of patients. That is why we combined forces in another place with the Liberal Democrats and Cross Benchers to force amendments on the Government that ensure that the Bill provided for an independent investigation. Indeed, our amendments ensured not only that the investigation would be independent, but that it would be confined to establishing the facts, and not concerned with fault finding. We believe that our amendments are good for patients and the NHS.

The Bill, as amended, now addresses one of our key concerns: the need for an independent investigation. Otherwise, the Government’s proposals would have had the NHS investigating itself as judge and jury in its own court—a modern star chamber. That would have represented a clear conflict of interest, with the NHSLA being asked to take responsibility for running the scheme, determining liability and awarding compensation.

I take issue with the Minister’s suggestion that, by various measures, independence is guaranteed. During his introduction, he suggested that there will be independent legal advice at the time that an offer is made. That will not guarantee independence in the process itself. Having a lawyer—an additional cost, by the way—advising on an offer does not guarantee that the process itself is independent.

The Minister went on to say that patients will still have the right to go to court if they are not happy. That is bizarre; I put it to the Minister that the point of the redress scheme is to provide an alternative to going to court. It would be absurd if the key to the success of the alternative were a right to appeal to the original.

Graham Stuart (Conservative, Beverley and Holderness)

Further to my hon. Friend’s point about the need for independence in the fact-finding stage, I draw his attention to the parliamentary brief on the Bill, supplied by the Law Society, which states:

“It will be difficult for solicitors to advise applicants on the fairness of an offer unless such queries”—

this is about fact finding—

“are resolved at the Investigation stage and prior to the issue of an offer”.

That makes my hon. Friend’s point entirely. The Law Society supports the view of the need for an independent understanding of the facts.

John Baron (Conservative, Billericay)

My hon. Friend makes a valuable point. Having lawyers advising at the end of an offer does not guarantee independence of the process itself.

The Minister went on to say, however, that there could be an appeal to a health ombudsman, while the Healthcare Commission oversees the scheme’s implementation.

Siôn Simon (Labour, Birmingham, Erdington)

I agree with the hon. Member for Beverley and Holderness that independent legal advice needs to come earlier in the process, in order for the scheme to work, be more meaningfully independent, and be perceived as such. I do not think that having legal advice at the end empowers sufficiently potentially wronged patients to make decisions during the process of interlocution with the trust.

Does the hon. Gentleman agree with me that were such a change to be made and the Government to move slightly in that direction, the scheme would have a measure of independence that would provide the credibility that the scheme needs? Would that not obviate the need for the kind of huge apparatus involving examining magistrates crawling the country that Opposition Members have joined together to dream up?

John Baron (Conservative, Billericay)

I shall follow convention and thank the hon. Gentleman for his intervention.

Let us start with the hon. Gentleman’s last point. He has totally misunderstood the concept of NHS redress investigators, and if he would like to discuss it in another place outside, I would be happy to do so.

On lawyers, our point is that if we want a more open structure and to encourage a culture change in the NHS, we need open and transparent proceedings. That is best provided by separating the fact finding from the fault finding because involving lawyers in the scheme to determine liability does not make for an open, transparent and honest investigation—[Interruption.] Let me finish.

It does not make for an open, transparent and honest investigation into what went wrong and what should be done to put it right. I am pleased that the hon. Gentleman agrees that simply having lawyers at the end of the process advising on an offer can hardly be described as guaranteeing the independence of the process as a whole.

Andy Burnham (Labour/Co-operative, Leigh)

I think that there is still a misunderstanding here, which I hope to clear up. 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. In our scheme, there is a separation. The difference is that the hon. Gentleman envisages a scheme in which—this point was made by the hon. Member for Southport—two different authorities control the first and second parts. It would not be a unified scheme with a link between investigation and conclusion. That is the point that we are dancing around.

John Baron (Conservative, Billericay)

I am pleased that the Minister made that intervention, because that is the point that I made to him earlier. The Government’s scheme is already a two-stage process. If Conservative Members are suggesting that the redress scheme should confine itself to the fact finding, it is difficult to argue that our scheme would cost a lot more than the Government scheme, because the Government’s suggestion would have the NHS also trying to determine liability, and there are many costs involved with that. If we are saying that it should be confined to fact finding, the whole concept of that £41 million, to which I shall return, is thrown into the melting pot. I am pleased, however, that the Minister clarified the point about the Government’s scheme being a two-stage process.

Judy Mallaber (Labour, Amber Valley)

Is the hon. Gentleman nowsaying that the “suitably qualified” patient redress investigators will not be lawyers? What does “suitably qualified” mean, and what qualifications would such lawyers be required to have? Is he talking only about the person at the top? If so, who will do the bulk of the detailed work in investigating cases, who will employ them and what qualifications will they have? We really need some clarity on these points to understand whatis discussed.

John Baron (Conservative, Billericay)

We will come to some of those details later, and I shall address them then, but it is important to remember that we are dealing with enabling legislation. That is why there was little detail in the Government’s original proposals. Can the hon. Lady find the extent of detail that she is asking of our proposals in the Government’s original Bill? If so, I would be interested to see it. We are talking about principles and how best we can ensure independence.

It might not be obvious to the Government, but it is obvious to us that if one restricts the functions of the scheme as we would envisage it, without adding, and simply confines it to fact finding, and does not involve it in the second-stage process, it is difficult to argue that it will cost more. The system is in place; a system of fact finding has to be in place. The Minister has just accepted that we have to have a fact-finding stage before we can get to the fault finding. All we are saying is: restrict the system to fact finding. The question is who should run it. I shall return to the point about costs in a while. [Interruption.] I think that I shall regret this but I will give way.

Siôn Simon (Labour, Birmingham, Erdington)

I am grateful to the hon. Gentlemanfor giving way. He told me that I completely misunderstood the Conservative provisions, and suggested—slightly unconventionally, I thought—that he should explain them to me outside. I am happy to talk to him outside any time he likes, but sticking with the convention that we should talk about these things inside, I must say that, having read the clause that he has written, I think that I understand perfectly well what it means. It does not make great sense to me but, in a spirit of constructive consensus, I take the point that this is an enabling Bill that does not contain a lot of legislation. It would, therefore, be reasonable for the Opposition to table a clause that was similarly enabling and not packed with detail. However, this clause does not sit happily and comfortably within the framework of the rest of the Bill, and no reasonable person could claim that it does. It does not go with the grain of the Bill, but sets up a completely different structure that virtually negates the thrust of the Bill. In that case, it is not unreasonable to say that I do not understand. The hon. Gentleman should explain to us—here, inside, rather than outside—how he can sincerely say that the clause goes with the grain of the Bill and sits comfortably with what it is trying to do. Many of us would like to see it improved.

John Baron (Conservative, Billericay)

I shall come to a number of the hon. Gentleman’s points. First, let me make just one point to him. It is going with the grain because it is simply focusing on fact finding. The Minister has, rightly, acknowledged that, as was said on Second Reading, the Government’s suggested Bill contains a two-stage process: a fact-finding stage undertaken by the trust, and a fault-finding stage undertaken by the NHSLA. All that we are saying is that we should restrict the Bill to the fact-finding stage and then, by having the redress investigators, guarantee independence in order to give that fact-finding stage credibility in the eyes of patients. That suggestion is not going against the grain of the Bill at all; if anything, it is going with the intentions of the Bill. It is just beefing up the independence side of things, which is terribly important if we want the scheme to have credibility in the eyes of patients.

The other issue on which I take issue with the Minister is that of independence, and the Government’s claims about it. There would be an appeal to the health ombudsman and the Healthcare Commission, but they, as the Minister acknowledged, would be concerned with the administrative and procedural aspects of cases, not with their substance. It is important to understand that, because that does not itself guarantee independence. Here we have promises about lawyers at the end of the system advising on the offer; patients having the right to go to court; and appeals to the health ombudsman and the Healthcare Commission. However, if we look at them in detail they are all leaky buckets. They do not hold water. They do not, individually or collectively, guarantee independence. The best way to guarantee independence is to have somebody independent sitting at the top to examine the facts.

Let me make a little more progress. I refer the Minister to the Constitutional Affairs Committee report, “Compensation Culture”, published on 1 March, which states, in paragraph 93:

“We are concerned that if the organisation which is responsible for defending trusts and hospitals is also charged with running the scheme, there may be a perception (whatever the reality) of a conflict of interest.”

However diligent the NHSLA is, the patient will never have absolute certainty that he or she has been dealt with fairly, so the process will lack credibility. That is a key point. I know that we have kicked it around a bit, but it is terribly important. If the scheme has little or no credibility, we really are pushing uphill in trying to change the culture of the NHS. Justice must not only be done, it must be seen to be done. Independence is a basic principle of natural justice, enshrined in the rule against bias that no man may be judge in his own cause. However, that is exactly what the Bill did in its original form. I must tell the Minister that we consulted widely on the issue, and there was widespread concern about the lack of independence in the Government’s original proposal. That was the view of the Law Society, the Association of Personal Injury Lawyers, the Bar Council, AVMA and various senior practitioners in law and medicine. The Minister himself referred to the article in the law section of today’s edition of The Times, which made that very point.

As amended, the Bill provides for a robust, independent investigation that is limited to fact finding. As we have discussed many times, fact finding is the first stage, which must precede any consideration of fault. The investigation should be conducted by independent NHS redress investigators as an inquisitorial process, and the coroner’s inquest provides a model.

Moreover, the investigation that we envisage complies with the spirit of the Inquiries Act 2005, which provides that inquires may be wide ranging, although limited to fact finding, and that they may not consider legal liability. That should not, however, prevent fault from being inferred from the determination of fact. Those provisions are in operation up and down the country, having undergone parliamentary scrutiny and been passed.

Let me read out a couple of sentences from the explanatory notes to the Act to help the Committee. The explanatory notes to section 2 state:

“The purpose of this section is to make clear that inquiries under this Act have no power to determine civil or criminal liability and must not purport to do so. There is often a strong feeling, particularly following high profile, controversial events, that an inquiry should determine who is to blame for what has occurred. However, inquiries are not courts and their findings cannot and do not have legal effect. The aim of inquiries is to help to restore public confidence in systems or services by investigating the facts and making recommendations to prevent recurrence, not to establish liability or to punish anyone.”

Basically, we are arguing that the Act’s provisions operate up and down the country, and the investigation process that we envisage might provide the basis for any explanation, apology, recommendations and assessment of civil liability.

Our vision for the redress scheme is based on principled policy and actual practice. The separation of powers is a fundamental principle of our constitution. The judiciary and the Executive are separated, and the separation of functions that we envisage derives from that basic principle. In other words, we suggest that there should be an independent, inquisitorial fact-finding process, in which no legal rights are asserted or defended, and which is therefore not adversarial. That is the key point of difference between the Minister and Opposition Members. For some reason, the Minister claims that our scheme, in which the investigation would be limited simply to fact finding, is more adversarial, but it is not. We aim to separate fact finding and fault finding and to keep the determination of liability out of the scheme. That is not adversarial.

Andy Burnham (Labour/Co-operative, Leigh)

Will the hon. Gentleman give way?

John Baron (Conservative, Billericay)

I hope that we are not going to rehearse the previous arguments.

Andy Burnham (Labour/Co-operative, Leigh)

I have listened carefully to the argument that the hon. Gentleman is developing. Can he tell us in clear terms how his scheme could be inquisitorial but not adversarial?

John Baron (Conservative, Billericay)

I have just read out how such a scheme operates under the Inquiries Act. One can have a scheme that examines the facts and tries to determine what may have gone wrong and what should have happened, but without determining liability. Such a scheme is in operation under the Inquiries Act.

Andy Burnham (Labour/Co-operative, Leigh)

The hon. Gentleman will know that the Act deals with grave and enormous matters of public interest, but we are dealing with cases of redress that might involve a narrow set of issues. It is highly spurious to draw a comparison with the Act—this is an entirely different process. I fail to see how he can argue that there is a parallel between the individual complaint brought by an individual citizen about an adverse incident and an inquiry into a major public disaster or major failing such as the situation at Alder Hey or at the Bristol Royal. It is a different matter entirely.

John Baron (Conservative, Billericay)

With respect, the Minister is trying to set up Aunt Sallies. Those things are not mutually exclusive; we are talking about the principle of finding the facts. If the Minister has trouble with the Inquiries Act 2005, he could perhaps examine how a coroner’s court operates. He must not forget that some cases could be serious and attract the kind of headlines to which he referred in some of his examples.

I am referring to the 2005 Act because it has been enacted, undergone parliamentary scrutiny and is in effect up and down the country. It clearly established the principle that one can try to establish the facts and go all the way through the process, including trying to determine what should have happened, without going the extra step of determining liability. Will the Minister examine that Act, because it may help him better to understand what we are trying to suggest with regard to the concept of limiting the redress scheme simply to fact finding. I say that genuinely.

If there is no legal issue to be investigated, it is difficult to see the need for lawyers to be involved. We are dealing with medical facts, not with legal liabilities. The question of independent assessment for eligibility for compensation under the scheme therefore does not arise, since such eligibility is an internal matter for the NHS Litigation Authority.

The Secretary of State characterised our proposal as a two-stage scheme—the Minister has confirmed that in some of his interventions—involving two administrative bodies. That is misconceived. The investigation that we envisage does not require another bureaucracy; it requires the same administration, only operating under the direction of an independent person for the purpose of the fact-finding investigation. The key concept is the separation of function. I politely suggest that the Minister’s suggestion that our proposed scheme involves duplication of effort is misconceived. There are essentially two different functions: fact finding and fault finding. We simply suggest that we separate them so that they are performed by different persons.

Amendment No. 19 has been tabled by the Liberal Democrats. If we accept that splitting fact finding and fault finding is appropriate, that amendment is not necessary because it replicates the courts system within the redress scheme. I thought that we had agreement in the House of Lords. I am a little disappointed that the amendment was tabled, given the co-operation between the Conservatives and the Liberal Democrats in the other place on the importance of separating those two different functions. The determination of liability by an independent body confuses the issue. If we accept that fact finding and fault finding are separate, such an amendment is superfluous to requirements, and I again refer hon. Members to the wording of the 2005 Act.

I shall briefly mention amendment No. 8 because that is all that is required. It is consistent with the 2005 Act. We want a purely fact-finding investigation, and the fact-finding exercise must therefore not exclude just tort but any legal liability.

There are other advantages to the Bill as it stands. I say that in defending clauses 6 and 12. Under our proposals, the investigation of the facts will be open; it will be with prejudice, which means that the findings of fact will be robust and might have evidential value outside the scheme. By contrast, the Government propose that any offer or settlement should be without prejudice and not considered as evidence or admission of civil liability. That must mean that the proceedings leading up to the offer are either without prejudice or privileged. An investigative process can hardly be described as transparent if its findings are not open, but that will be the consequence of the Government’s proposal to mix up fact finding with fault finding.

If an offer is rejected, under the Government’s proposals the findings of the investigation cannot be used for any compensation claim outside the redress scheme. Separating fact finding from fault finding would make the findings of fact by independent investigators open. Thereafter, patients would have a range of options available to them for settling disputes in appropriate cases. In addition, the NHSLA may offer compensation on the basis of its own privileged assessment of its liability.

We stand a better chance of changing the NHS and making its culture more open if proceedings are transparent and confined to fact finding. Introducing the lawyers complicates the issue, and we will stand less chance of succeeding—I mention them, because the Government’s proposed scheme would try to determine liability as well as establish the facts. Introducing the lawyers does not make for an open, transparent investigation for the benefit of patients and the NHS.

Compensation under the amended redress scheme is as in the original Bill. However, our proposal would provide patients with a range of options at the end of the fact-finding stage, should they wish to seek compensation. They may accept an offer under our proposed redress scheme, seek to negotiate or mediate a settlement, or enter into a scheme. The courts are available as a last resort. Different cases may require different approaches and procedures.

Andy Burnham (Labour/Co-operative, Leigh)

The hon. Gentleman has just mentioned a further scheme—a resolve-type scheme. I am in danger of believing that the arrangements that he is proposing would be deeply confusing to the public. He seems to envisage people being able to go down all kinds of avenues and for the scheme to be administered by two different bodies. I fail to follow why the scheme would be anything other than deeply confusing. Can he give us more detail on the further resolve-type scheme that he has in mind?

John Baron (Conservative, Billericay)

I ask the Minister to consider the proposals more carefully. It is simple: at the end of the fact-finding stage, the patients would have a choice of options open to them. There is no confusion about that. If they felt that they wanted to accept the offer proposed under the redress scheme through the NHSLA, they would be at liberty to do so. Alternatively, they may seek to negotiate a mediated settlement, or enter into a resolve-type scheme. That would be up to them. The point is that different cases might require different approaches and procedures. Choice and flexibility should be available.

Moreover, the fact-finding investigation that we propose could provide the basis for settlement and assessment of liability for any proposed claim. We propose that a Mackenzie-type friend should be available to provide support and guidance for any intending claimant.

The Bill as currently drafted, particularly clauses 6 and 12, more accurately reflects patients’ priorities. As we all know, research has shown that when something has gone wrong, patients often want only an explanation, an apology and an assurance that lessons have been learnt for the benefit of others. That point has been made a number of times. Compensation does not rank very high, and the open, independent fact-finding investigation that we propose reflects those priorities. Patient safety is promoted by ensuring that lessons learnt are not lost, which is terribly important. The Government’s focus on compensation does not reflect patient priorities, however, and could subvert the purpose of the investigation. It also means that the importance of the explanation and of any lessons learnt risks being relegated.

On spurious claims, I would argue that the original Bill would have provided a demand-led, open-ended, cost-free and risk-free scheme for claiming compensation. That would have proved unnecessarily costly—there is no downside in someone having a go under the Government’s proposals—and it would have been unnecessarily wasteful. The money would be better spent on patient care.

In addition, the Government state in the regulatory impact assessment that

“the vast majority of opportunistic claims will be easily rejected”.

The Government will struggle to provide evidence for that. The success rates in clinical negligence litigation are modest, and experience shows that spurious claims are not easily rejected. Indeed, claims without merit may be compensated because it can be cheaper to settle a claim than contest it.

Likewise, the Government’s original redress scheme, under which the claimant would have been entitled to free legal assistance to help him pursue his claim against the NHS, provided every incentive for people to pursue opportunistic cases. I mentioned to the Minister on Second Reading that the Government are concerned about the matter; he will no doubt be aware that last year another Minister talked of introducing conditional fee arrangements as a way of ensuring that only claims with merit were taken forward. However, that idea was shelved.

The Government say that their costings suggestthat our scheme would cost the taxpayer a maximum of £41 million more than if the Bill was left in its original form. That figure is totally spurious. There are all sorts of holes in that claim. For example, their estimate of additional cases has a ten-fold range from 2,200 to 19,000. I would argue that the cost is not additional but inevitable, as there would have to be an investigation, whether by the NHSLA or by independent investigators. Indeed, it could be argued that our scheme, as presently envisaged, could result in cost savings. For example, there would be no need to pay a lawyer to oversee and give advice on an offer. It would not be required under our scheme.

I return to the point that if we simplify the scheme and confine it to fact finding, and not have that additional stage and the expense of determining liability, it would be difficult for the Government to argue that our scheme would somehow be more expensive than what they originally proposed.

Diana Johnson (Labour, Kingston upon Hull North)

On Second Reading, I asked the hon. Member for South Cambridgeshire, the shadow Secretary of State for Health, the same question as that raised by my hon. Friend the Member for Amber Valley (Judy Mallaber). I asked what qualifications would be needed by those who held the title of patient redress investigators, and whether they would be clinicians or lawyers. If I recall it correctly, he said that he thought that they might be lawyers, but might be clinicians. We have heard a lot this afternoon about lawyers being expensive; if we are going to have clinicians and lawyers, the costs of the redress system envisaged by the hon. Gentleman will increase automatically, and might reach the figure given by my hon. Friend the Minister.

John Baron (Conservative, Billericay)

There is every likelihood that medically qualified individuals will sit as NHS redress investigators. Indeed, that point was made on Second Reading. The bottom line is that we are pushing hard on the concept of redress investigators because we think it the best way of ensuring independence. I have tried to make the point to the Minister that the other guarantees of independence proposed by the Government—whether a lawyer advises on the offer at the end of the scheme or it is done on the take-it-or-leave it basis envisaged under the NHSLA scheme, or if a referral or appeal is made to the ombudsman or the Healthcare Commission—do not, even in their entirety, guarantee independence. The best way to do that is to have someone independent of the trust determining the facts of the case.

The hon. Lady makes an interesting point because we must not forget that the NHS has always had the power to settle claims without resorting to litigation. To characterise the redress scheme as providing a sort of novel, genuine alternative to litigation is misleading because the alternative has existed, and will continue to do so, regardless of the redress scheme. Patients are entitled to treatment by the health service if it is clinically indicated. Remedial treatment is thus a matter of entitlement, and it is difficult to see why that should form part of any redress package; it is there by right and should not form part of a redress package. There is nothing novel about the Government’s proposals.

We do not oppose parts of the Bill dealing with those items, but it is only right that we place on the record our recognition that they are fallacies. Indeed, ideally we would have removed compensation from the Bill entirely because that will be dealt with outside the scope of the Bill by established mechanisms.

I shall return to the issue of cost and address some fallacies. We must not forget that the cost of the scheme itself and of the investigation is fixed and inevitable. Our investigation would be limited to fact finding, whereas the Government’s figure includes the assessment of legal liability, which would be an additional cost.

In conclusion, we believe that our proposals, and the Bill as currently constituted, put patients, not the health service, at the centre of the redress scheme. By confining the investigation of a case to fact finding by an independent process and by separating fault finding, we largely avoid the problems of the Government’s original Bill. Patients’ interests are safeguarded by independence, and there would be a greater chance that patients would have confidence in the system.

Our proposals reflect patient expectations and priorities, and comply with the principles of natural justice. They are prudent, yet fair. They will simplify an over-complicated and over-ambitious Bill. We believe that they will allow patients access to a fairer, and perhaps better result.

As I said on Second Reading, no scheme will be perfect when dealing with such a complex subject, but we believe that our proposals are a substantial improvement on the original Bill presented to the House of Lords last October. It goes without saying therefore that we will oppose Government amendments Nos. 1, 2 and 5 and amendment No. 19, and I ask the Committee to consider supporting our amendmentNo. 8. Otherwise, we ask the Committee to leave the Bill alone.

Siôn Simon (Labour, Birmingham, Erdington)

I start by apologising for not having previously declared to the Committee my interest as a trustee of Action Against Medical Accidents—AVMA—the country’s leading patient safety charity. The Minister mentioned it at the top of his opening remarks, which perhaps put me off, and I did declare it on Second Reading. I hope that no one has been under any illusions about why I said some of the things that I said. Once again, I apologise.

The line that has come into my head most often in the past hour or so is one from Aeschylus that I read recently: “The Gods so hard to wrestle down obliterate us all”. That is not particularly related to patient safety, but it is how I feel as we approach the sixth hour of the debate. With that in mind, I shall try not to detain the Committee too long.

I am glad that we have had a lot of time to debate such important issues. We have said often, although it was said more often on Second Reading—the Minister repeated it several times—that all of us as Members of Parliament get letters about patient redress through our doors all the time. It is important stuff and has an impact on more than 100,000 people a year.

We have had a generally constructive and fairly consensual debate about the Bill, today and on Second Reading, but clause 12 and the debate on it stand outside that consensus and spirit of constructive co-operation. The clause is not a serious effort to improve the Bill, and the fact that it springs from an unholy alliance of the Tories and the Liberals in the House of Lords bespeaks politically motivated efforts to make a point for political consumption, rather than constructive efforts to improve things. I do not decry Opposition Members’ wish to make such points, because that is their job, and all credit to those in the other place for doing it so successfully. Nevertheless, we should call a spade a spade and be clear what we are dealing with. The Bill is important, and there is a lot of agreement about taking constructive measures to improve it. It can be improved, of course, but clause 12 is not a serious attempt to do so. It goes completely against the grain of what the Bill tries to do and does not sit comfortably within its provisions. However, I do not propose to say more about it than that.

I want to talk about amendment No. 19, on which we have a serious problem of understanding and nomenclature. It was tabled by the hon. Members for Romsey and for Southport, and I obviously cannot speak for them. However, many outside organisations, including AVMA, the patient safety charity, of which I am a trustee, would have tabled a similar amendment. What they would have meant by it, and the way in which I choose to read amendment No. 19, is completely different from the interpretation of the Government and the official Opposition. The amendment talks about the independent assessment of eligibility, and the Government take that to mean some sort of additional apparatus or extraneous add-on to the mechanisms envisaged in the Bill. Understandably, that is also how the hon. Member for Billericay read it, but that is not how I read it.

I should have liked the amendment to be read as providing some guarantee that somewhere in the process, under certain circumstances, there would be some element of independent assessment of eligibility for redress. The kind of things that I want to see are those that the Government introduced in their amendments in the House of Lords, which provided for what we generally call joint instruction. The amendment refers to independent assessment, and I would like to make a recommendation to the Government. Under the Bill, there is already a stage at which the redress procedure as envisioned has been gone through, albeit unsuccessfully, and the Government allow for the joint instruction of independent medical experts by the claimant and the trust. At that quite late stage in the process, I would like to see strengthened in the Bill the possibility, already envisaged, of the patient having a right to require some kind of joint instruction arrangement. That would be a safety net, should the procedures in the mainstream, which the Minister talked about in reasonable detail, fail. That is within the spirit of what the Government have stated as their intention. The emphasis is still on the NHS trying to recognise its own errors and to provide redress where appropriate. The safety net is needed only where there is disagreement between the patient and the NHS about eligibility.

The Government have previously resisted amendments on the issue because they were frightened of them being too prescriptive and detailed. They did not want that level of detail in the Bill. That is why, as I conceived it, the amendment was relatively open but it seems to me that it has ended up being drafted in too open a way and has been misinterpreted as a call for an entirely separate apparatus, which I do not think it is.

I do not expect the Minister to accept the amendment or to change the Government’s position but I wanted to explain that that is how I would choose to read it. The independence that we need is not based on entirely new apparatus but is, as the hon. Member for Billericay said, more along the lines of the resolve pilot. That was a Government pilot. It was positively evaluated. The speedy resolution pilot now ongoing in Wales is, by all accounts, being positively evaluated. Part of the positive evaluation includes a considerable saving to everyone concerned. I think that the saving is, on average, £7,000 a case.

The point of the resolve pilot is that, conceptually and initially, it comes from within the Department. It sits entirely within the spirit of what the Government are trying to do in the rest of the Bill. Indeed, the Bill allows for such arrangements. What I am asking for in amendment No. 19—I will meet the Minister tomorrow to talk about this—is for the Government to reflect on the issue and come back on Report with a strengthened version of what is in the Bill to introduce some independence in a way that gives more of a right for an appellant at a late stage in proceedings than is the case now.

I reiterate that the Bill is a good one. It has an opportunity to do a lot. Many of us who take an interest in such matters are reasonably relaxed about the Government’s desire not to have an over-prescriptive Bill or to drown the NHS in bureaucracy. As constituency MPs, we all see how easily bureaucratic masses can weigh us down. If we could have a little—I genuinely mean a little—more prescription in the Bill, it would do an awful lot to reassure external organisations; there is a big coalition of patient, medical and legal organisations.

John Baron (Conservative, Billericay)

I can help the hon. Gentleman out. He says that he does not want to be too prescriptive and add to the administration, but resolve-type schemes can exist outside the scheme as envisaged if the Bill and the redress scheme is restricted to fact finding. Resolve-type schemes can exist outside that. They have done so in the past and, no doubt, they will do so in the future. We do not have to bring the resolve-type scheme within the redress scheme.

Siôn Simon (Labour, Birmingham, Erdington)

My point is that the Bill allows for resolve-type schemes but does not create a situation in which a resolve-type scheme is a legal right for a claimant who has not received the redress that they want through the scheme as envisaged in the rest of the Bill. The hon. Gentleman has had frequent interchanges with the Minister on whether final recourse to legal proceedings is a satisfactory answer. I say that it is not.

To bridge the gap between final recourse to legal proceedings and the mechanisms as they stand, there should be a legal right in the Bill, for claimants who have not managed to resolve their claims through the mainstream processes, to some kind of what I have been calling independent schemes, but which we are now calling resolve-type schemes. I believe that such schemes are generally called joint instruction. It would be better to have such a right in the Bill than to leave it to regulation. I am relaxed about the Government covering most matters in secondary legislation, but having a little more in the Bill, particularly on this issue, would go an awfully long way toward reassuring many organisations outside the House that take a strong interest in this on behalf of a lot of sadly injured people.

Sandra Gidley (Liberal Democrat, Romsey)

We have probably done to death the arguments about which scheme is better. I simply want to reiterate that there is a substantial point of difference between both sides. The Opposition believe that it is important that there is a greater element of independence in the process. I know that the Minister did not like the phrase “judge and jury”, but the public’s perception will be of an in-house cover up. As we have had such a long debate with many interventions on the Minister, in which points were put very carefully by the Conservative spokesman, I do not propose to go over those points yet again for the sake of stating them on the record.

I shall speak briefly to Liberal Democrat amendments Nos. 19 and 20.

Anne Begg (Labour, Aberdeen South)

Order. I remind the hon. Lady that we will debate amendment No. 20 next, so she should speak only to amendment No. 19.

Sandra Gidley (Liberal Democrat, Romsey)

Thank you for clarifying that,Miss Begg. That means that my remarks will be even shorter. The hon. Member for Billericay is right to say that there is no need for an amendment to this part of the Bill because we are happy with it, but I took the rather pragmatic approach that the Government would try to delete clause 12. I thought that it might be useful to table a probing amendment to allow a debate on the issues raised by the hon. Member for Birmingham, Erdington.

The amendment would provide a guarantee that in specified circumstances there would be an independent assessment of eligibility for redress. In the other place, the Government introduced an amendment making it possible that independent medical experts might be jointly instructed to report on cases. The word “might” is important. It is also possible that patients will be provided with legal advice or representation. Although that is a welcome move, there is no assurance that that will be a right, in any circumstance, and that is a problem. Neither is there any guarantee that the findings in a medical expert’s report will be a determining factor in establishing eligibility. That differs substantially from what happens in the resolve pilots, or the speedy resolution pilots in Wales. The point that intrigued me was that those schemes seem to be widely regarded as having been successful, so I was interested in the Government’s thinking behind their apparent different approach to this Bill. Some clarification on that would be very useful.

As has been pointed out by the hon. Member for Birmingham, Erdington, the amendment would provide a safety net for those cases that are not proactively settled by the NHS. That safety net will be needed only where there is disagreement between the NHS and the patient over eligibility.

The Minister has suggested that there is no problem because such matters can be dealt with easily by the NHSLA, but it is worth bearing it in mind that the authority’s current job is to defend the NHS against clinical negligence claims, and it is effective in that. It is difficult to see how it can suddenly and effectively take on a new role, change tack and be on the side of the patient, too. How can the NHSLA perform that role with impartiality? That goes to the heart of the debate that we have had throughout this sitting about justice being done and being seen to be done. I hesitate to use the point about “judge and jury” yet again, but the NHSLA is not used to such work and will probably have to expand in some way, with extra costs. Have those been factored in? That point needs to be addressed by the Minister.

Graham Stuart (Conservative, Beverley and Holderness)

I shall try to keep my contribution fairly short, and to be better at honouring that promise than some other spokesmen have been today.

It has become increasingly clear as the debate goes on that the Government’s proposal will create a system in its own little cul-de-sac. The initial fact-finding is to be shared with wronged patients on a without-prejudice basis, so it cannot go forward. The Minister is right to suggest that the Opposition’s inclusion of Liberal Democrat proposals splits the scheme, but that ensures a thorough, independent investigation of the facts that will give public confidence. With respect to the hon. Member for Birmingham, Erdington and others on the Labour Benches, that is why so many organisations outside this place have emphasised the need for independence. I shall quote the Law Society again. Its parliamentary brief states:

“The Society...considers that both the reality and perception of independence and impartiality throughout any procedures under the scheme are paramount to its success.”

Like the hon. Member for Birmingham, Erdington, the Minister might want to dismiss the Opposition’s opportunism or other low motives, a dismissal which is completely unwarranted, but as he struggles to take the message from the Opposition, the message from the Law Society is that the reality and perception of independence and impartiality are paramount to the success of the scheme.

Siôn Simon (Labour, Birmingham, Erdington)

Will the hon. Gentleman give way?

Graham Stuart (Conservative, Beverley and Holderness)

I hope that the hon. Member for Birmingham, Erdington will recant his earlier hostilities and come over to a more balanced view of the situation.

The rest of the debate is in Hansard.