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Imagine our distress to discover this morning in a meeting with the Minister in another place, Andy Burnham, that independence was not to be brought in here and that, despite trying twice to send the Bill back to the Commons with the feelings of all sides of this House on the subject being made clear, we had not persuaded the Government that trust in the scheme was of the greatest importance and that independent oversight was therefore essential. Although I accept that we shall not press this further, I would be enormously grateful if the Minister could give us a clue as to the intentions behind Amendment No. 16A if it is not to include some element of independence in oversight of the fact-finding.
We are somewhat reassured by the fact that if someone is dissatisfied he can go to the ombudsman. That applies only in cases of maladministration. We are still left with two major concerns. The first, which we have all raised in debating this issue on several occasions and which was so ably expressed by the noble Baroness, Lady Murphy, when we last debated it, is that people just do not trust documents on the same writing paper as that of the organisation about which they have originally complained. We are delighted that the reports will be made available to the patients. We regard that as a major step forward. We had hoped to see more progress on some of the other issues and would love to know why the Government did not feel able to meet us at least halfway on the question of independent oversight.
There is one more area, about which I hope the Minister will give me permission to ask. As the Minister in another place stated this afternoon, there is to be a review of all this. He assured Members that the review would examine whether the way that the redress system works promotes that learning culture about which we are all concerned; whether it reduces costs to the National Health Service; and whether it deals properly with patient safety issues. It would be good to know from the Minister when—after how long—such a review of the redress system will take place. Indeed, it would be excellent if he could tell us whether there would be an independent element in such a review beyond the work that the Healthcare Commission will be carrying out regularly in assessing whether the scheme is operating properly.
With that, I thank the Minister for the concessions that he has made and for the way in which he has dealt with all the debates and discussions that we have had on this issue. I thank the noble Earl, Lord Howe, for all the work that he has done with colleagues in another place on the matter, all noble Lords who have taken part in the debates and the many outside bodies that have made representations to us all. I also thank the Bill team for all its work, up to and including this morning.
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We all welcome the Bill. I still believe that it could be a better piece of legislation, but we will have to wait to see how it works before we can judge. I look forward to taking a close interest in the coming months and years.
Baroness Murphy: My Lords, in adding my congratulations to the Minister on what is essentially a good piece of work, I would like to press him a little further on the meaning of Amendment No. 16A and whether in regulations it would be possible to provide for that independence that, when I first saw the amendment, I thought was being introduced as a response to our previous amendments. Will he clarify the extent of Amendment No. 16A? That would provide some reassurance.
Lord Warner: My Lords, I will do my best to respond to the points made by noble Lords. The amendment to which we are asking noble Lords to agree is Amendment No. 16B, not Amendment No. 16A. The amendment in lieu of the amendment made in this House, which was passed earlier today in the other place, specifically enables the scheme to provide for investigations to be overseen by a person of a specified description. This amendment will enable the scheme to specify the qualifications and experience that the person who oversees the investigation by the scheme member at the local level must have.
That will benefit patients, who will now know who has overall responsibility for the investigation into their case and who to contact about the investigation. That is the purpose here. I hope that that gives some reassurance to those on the Benches opposite and to the noble Baroness, Lady Murphy, who have shown great persistence on the issues that they have been pursuing. I commend them for their persistence, even if it has on occasion been slightly uncomfortable to be on the receiving end of it. I acknowledge that there were heartfelt views, and we have tried to clarify the issue of oversight and the specification of the person who might have it.
6.30 pm
The noble Baroness, Lady Neuberger, asked me why we did not accept some of the proposals that she and the noble Earl, Lord Howe, put forward. I do not want to go over all that ground again, but there were issues about putting proposals in the Bill when their workability could not be guaranteed. I asked some relevant questions that need to be answered before we put that kind of wording in the Bill. There would still be some issues to be teased out if that approach were to be adopted. Essentially, the problem was workability. We were also concerned that it could lead to dual bureaucracy, and there was a largely unanswered question about who would decide if the overseer and the investigator from two different entities disagreed about what should be in the report. We did not resolve that issue. The issues of the workability and credibility of the scheme meant that it could not go in the Bill.
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The noble Earl, Lord Howe, raised the issue of privilege. I shall have another go. This is a complicated area, and if I do not satisfy him, I am happy to have a discussion with him afterwards and to write to him at greater length. The advice I have been given is that a claim for privilege—which is, in effect, to prevent disclosure to another party—can be made if a document is a communication between a solicitor and a third party which arises after litigation is contemplated and the purpose of which is to obtain legal advice. Privilege cannot be claimed for an accident or investigation report unless the sole or dominant purpose for which it was prepared was for submission to a legal adviser for advice. If an investigation report is prepared as a matter of course to find out the cause of the accident and to avoid future occurrences, as is the case in this legislation, and is to be provided to individuals, as is envisaged under the redress scheme, it would not satisfy the test for privilege. That is the legal advice that I have been given. I hand it over to the noble Earl in a spirit of helpfulness.
The noble Earl asked whether the regulations could be looked at in draft. They will be subject to a public consultation of three months, so there will be ample time for the Benches opposite, and anybody else who wishes to, to examine them in detail and to raise issues about them. I remind the House that the regulations are subject to the affirmative procedure, so they will be debated in both Houses.
We indicated—I think it was in Committee—that there would be a review of the scheme after three years. The precise way in which that review will be conducted will be decided nearer the time. I think my colleague in the other place, Andy Burnham, confirmed earlier today that the review could cover areas that are troubling Members on the Benches opposite. There will be an opportunity to look at this again when reviewing the scheme at the end of that period.
That is my best shot at answering the points that were raised. I am happy to write in more depth if noble Lords wish.
On Question, Motion agreed to.
Education and Inspections Bill
The Bill was returned from the Commons with the amendments agreed to.
National Health Service Bill [HL]
The Bill was returned from the Commons agreed to.
National Health Service (Wales) Bill [HL]
The Bill was returned from the Commons agreed to.
National Health Service (Consequential Provisions) Bill [HL]
The Bill was returned from the Commons agreed to.
- House adjourned at twenty-five minutes to seven o’clock.
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