Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Finlay of Llandaff Excerpts

Monday 23rd April 2012 Lords Chamber

[Lord Cormack]

My Lords, I will not detain your Lordships long. This is a simple, precise amendment. It does not cover the ground of Amendment 170, but it does repeat, almost exactly, the amendment which your Lordships’ House approved just before we rose for the Easter Recess. When I moved the amendment at that stage, I made it quite plain that I felt that it was very wrong to single out a specific group of children who had suffered as a result of clinical negligence, and to leave the others. I have heard, of course, what my noble friend has said, and I do not for a moment question his personal commitment to these issues. But we have not had any adequate response in the very brief debate in the House of Commons, and my noble friend merely repeated this evening the amendment that the Government introduced at an earlier stage, which of course we welcome, but which creates an anomaly and an unfairness.

When we debated this last time, my noble friend Lady Eaton—who signed the earlier amendment along with the late Lord Newton of Braintree—made a very moving speech in which she talked about a child who had not suffered from brain damage, but who had been paralysed. She talked about the needs of a child who would grow up to be able to walk, in spite of the brain damage, and a child that would remain paralysed for the rest of his life. It was a movingly made speech, which illustrated what this amendment is all about.

I have heard what my noble friend has said about other means of getting support. I would just repeat a point that I made in my last speech: the National Health Service—of which we are all proud, and which we have spent many months discussing in your Lordships’ House during the course of this parliamentary Session—is an agency of the state. If anyone suffers as a result of the negligence of an agency of the state, then the state should, automatically and properly, provide a means of redress. This amendment does not go so far as that, because it concerns itself wholly and exclusively with children. I believe that, in all fairness, it is an amendment that even at this late hour should commend itself once again to your Lordships’ House. I believe that it would be appropriate for us to ask the other place to think again. It did not think very much about this one, and it really should. In his brief intervention this afternoon, my noble friend Lord Higgins referred to the inadequacy of time given in another place to your Lordships’ considered amendments. As we look to the future of your Lordships’ House, we ought to consider, in the imbalance between the two Houses, whether it might not be appropriate to do a little more insisting, if what we have deliberated on is so summarily dismissed.

Given the present conventions, and the relationship between the two Houses as they exist, I do not believe that one should go on and on playing a game of ping-pong. However, in this instance we have every right to say to another place, “Please think about this. Think about the children who suffer as a result of clinical negligence. This is your opportunity to redress an imbalance”, because welcome as it is, and I repeat that it is welcome, what the Government have done does not go far enough. Let us send this back. Let the other place think, and because there are no large sums of public money involved in this—indeed it could be argued that we are probably in the long term saving public money—let them in their charity look to those who are most deserving of that charity. I beg to move.

[Baroness Finlay of Llandaff]

My Lords, I very strongly support the amendment. There is a very strong reason for looking at children separately from adults. Indeed the age of 16, as outlined in this amendment, makes sense because in the General Medical Council guidance 16 is the age at which a child can be assumed to have capacity to consent. When treating a child who is actively withholding consent to treatment and who is aged between 16 and 18, the doctor should and must think again. Those under 16, however, go into treatment at the consent of their parent or guardian, not of themselves. If they are then subject to error, whether that is unfortunate or negligent or almost wilfully neglectful, they have done so not with their own informed consent but with that of others.

The amendment that the Government have brought forward, which relates to neonates and birth-related trauma, is, I suggest, fraught with difficulties over the problem of premature babies and accurate estimation of the date on which they would had been born. Even in the very best of hands, estimates of their expected date of delivery have to have a plus or minus of four days around them. That would impose an eight-day error. I fear that there will be endless arguments. Should there be a small, very premature baby in a neonatal unit, and should somebody inadvertently inject the wrong drug or should their ventilator inadvertently be set incorrectly—switched off from oxygen levels, or whatever—I fear that there will be arguments around whether the expected date of delivery was really the one that had been written on the notes. Was it actually two days forward from that or two days back, depending on the date of the error?

This amendment avoids that kind of deeply traumatic argument and recognises the fact that a child undergoing treatment has not given their informed consent to it. That treatment has been at the consent of others acting on that child’s behalf. They must therefore be treated differently from adults because they are vulnerable on two counts: first, their age, and, secondly, because there was of course something wrong in the first place for them to be entrusted to the care of the service which then failed them.

[Lord Higgins]

My Lords, perhaps I may intervene for a moment to ask my noble friend a rather simple-minded question. The Reason given by the Commons set out in 170A states:

“Because it would alter the financial arrangements made by the Commons”.

Can my noble friend briefly tell us exactly what these financial arrangements are, to the extent that they affect the state of the economy in terms of public expenditure and so on?