NHS Redress Bill [HL]

My Lords, I listened carefully to the noble Baroness’s advocacy of the three amendments. I am afraid that we oppose Amendment No. 18 on the grounds that it may be appropriate to provide for other circumstances in which proceedings under the scheme may not be commenced. The amendment would remove any flexibility. The only circumstances in which proceedings could not be commenced would be where an offer had previously been rejected. There may be other circumstances in which it may be appropriate that proceedings may not be commenced; for example, when it is obvious from the outset that a case would fall well over the financial limit for compensation under the scheme. Another example might be where an offer under the scheme in respect of the same injury had already been accepted. We intend to consult stakeholders further when drawing up the secondary legislation, and we will consult about the circumstances in which proceedings may not be commenced. We would wish to retain flexibility to make appropriate provision for other such circumstances following those discussions. When the scheme is first established, the regulation and scheme will be subject to affirmative resolution procedure and there will be an opportunity for full parliamentary scrutiny of the use of the power. Amendment No. 20, in contrast, seeks to place a provision in the Bill that proceedings must be commenced where the patient wishes to seek redress under the scheme. The Bill has powers which will enable the scheme to specify who can commence proceedings. It is our firm intention that individuals will be able to apply to the scheme directly. The details of who may make applications will be covered in the scheme itself, so will be part of the secondary legislation on which we shall again consult stakeholders. However, we intend that patients will be able to apply directly to the scheme. Where an application is made, it is intended that the scheme will require the relevant scheme member to investigate and to send the case to the scheme authority for a decision on eligibility. Where a case is eligible under the scheme, the scheme member will then make an appropriate offer of redress, but it will be appropriate only where the case falls within the scheme. There may be a small number of cases in which it may be appropriate for proceedings not to be commenced. For example, where it is clear, again at the outset, that the case would far exceed the financial limit of the scheme, it may be appropriate for the case to be referred directly to the clinical negligence scheme for trusts to avoid delay. The noble Baroness raised points on Amendment No. 21. In our opinion, this amendment overlooks an important aim of the scheme. Scheme members should identify cases that potentially fall within the scheme and activate the scheme without waiting for the patient to approach them. It is intended that the scheme will bring about an active approach with scheme members taking steps to identify qualifying cases. However, Clause 4(2)(f) has 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 rather than by a patient, the scheme will provide that the scheme member should notify the patient that proceedings have been commenced. Patients in those circumstances would not be kept in the dark. If the patient does not want his case to proceed, the powers in Clause 6(2)(f) enable the scheme to make provision about the termination of the proceedings. If the patient stated that he did not want his case to proceed, we intend that the scheme member will be required to terminate the proceedings. The answer to the noble Baroness’s question is that the issue will be covered in secondary legislation. Those are our grounds for objecting to these amendments.