NHS Redress Bill [HL]

I will respond briefly about the overall purpose of Clause 2. The clause sets out that a scheme may make provision defining the cases to which it applies. Such provision will need to be within the scope of the broad parameters for a scheme set out in Clause 1. It is envisaged that in some circumstances it may be appropriate to exclude cases which fall within the broad parameters in Clause 1 from the application of the scheme. The power is to enable ““grey areas””—some of which we have already discussed—to be excluded if that is necessary. For example, under the parameters set out in Clause l, the scheme will cover only qualifying liabilities arising out of hospital services. For the purposes of the scheme, ““hospital”” has the same meaning, as we have already discussed, as in the National Health Service Act 1977. If primary care services were delivered in a hospital, those services would be excluded from the scheme. Therefore, if a walk-in centre delivering primary care services were to be attached to a hospital, cases arising from such services would be excluded—they would be primary care services. Some GPs practise at hospitals, but they are providing primary care rather than hospital services. The intention behind subsection (2) is to ensure that the approach taken by the scheme is in line with established legal practice. The scheme must provide that it does not apply in relation to a liability that is or has been the subject of civil proceeding. We certainly do not intend patients to be compensated twice, so cases that are successful through the courts will be excluded. That is the thinking behind Clause 2. The noble Earl, Lord Howe, asked, ““Why tort?””. There has to be some basis for a scheme. When we returned to Making Amends in developing the redress policy underpinning this scheme, we had a number of meetings with key stakeholders to discuss the practicality and desirability of an alternative test to the existing legal test of liability. Among those tests examined was one based more on whether harm caused to a patient could or should have been avoided rather than making reference to the act or omission of an individual clinician. However, it became clear that changing the whole basis of clinical negligence law was likely to be extremely difficult and time-consuming. We reached the conclusion that—given that many of the problems of the current system relate to its adversarial nature, the time it takes and the high administrative and legal costs involved—reform of the test itself was not necessary or desirable. We therefore concentrated on delivering a better system and better redress for cases that meet the existing legal test for liability. We are saying that there will always be a group of cases in which the damage and negligence are so serious that they are way outside the scope of this kind of redress scheme. We have found it difficult to provide a legal definition that groups those cases outside the normal arrangements around clinical negligence. We have fallen back on a financial ceiling, in effect, that enables you to take them out of the system that goes through the court proceedings, so that we can deal with them more effectively. As we have discussed already, we want to get the NHS to change its cultural attitude to many of the cases and produce redress for patients much more quickly. In a nutshell I am saying to the noble Earl, Lord Howe, that no one could think of an alternative basis for running a low-value scheme—if I may put it that way—that would enable us to get speedier redress to patients. Certainly, unpicking the whole basis of clinical negligence law was not unreasonably deemed a rather forbidding task for the Department of Health to start on. We were trying to make a response, following Making Amends, which was practical in all the circumstances.