NHS Redress Bill [HL]

I do not want to repeat some of the comments I have made but I shall begin with a few remarks on the level playing field. We intend that all providers of hospital services in England, including NHS foundation trusts and independent providers, and, if they were providing the services in a hospital context and it were appropriate, the social enterprise sector and voluntary organisations, would be required to be members of the scheme. However, I reiterate that the scheme is based on hospitals, as defined in the 1977 Act. I shall not repeat the elegant reading of that definition which I made earlier in Committee. We envisage that all those providers under that definition eventually will be required to participate in the scheme. But the noble Earl, Lord Howe, has, with his customary thoroughness, put his finger on one or two points which we have tried to anticipate in the Bill. I would not go so far as to say that we have a cunning plan, but we have tried to anticipate that by some of the provisions that we have made. In that regard, I turn to Clause 10(3), because it provides that where the scheme applies to cases involving the liabilities of a person who is not a member of the scheme, a member of the scheme, for example the PCT that is responsible for commissioning hospital services from the non-member, can be required to deal with cases under that scheme. This is important in covering two scenarios that the noble Earl has already raised. Where an independent provider has an existing contract to provide hospital services as part of the English NHS, it is not possible unilaterally to renegotiate the contractual position of that provider. However, we intend that the commissioner of the services may run the scheme on behalf of the provider until the existing contract expired or was renegotiated. At that point the independent provider would itself be required to become a member of the scheme. In anticipation of what the noble Earl might say, I recognise that the commissioner would, in effect, be trying to ensure that the obligations of a scheme member were understood and adhered to by the contractor. It does not seem to me to be likely that any contractor, who was not reasonably co-operative in these matters with a commissioner, would do very well in getting his contract renewed. We have seen in the contracting out of, for example, cleaning and catering services, by mutual agreement, as circumstances change, that people do renegotiate their obligations and their contractual requirements. The second scenario that we anticipate is, indeed, our old friend, cross-border issues between England and Wales—which, as far as I can see, has come up in every piece of legislation that I have been engaged in with the noble Earl in this place. It is not intended that these providers will be members of the English scheme. It is envisaged that where hospital services are commissioned as part of the NHS from a healthcare provider in Wales, the commissioning body will run the scheme and co-ordinate the investigation and, where appropriate, make the offer of redress. This does not apply to providers outside England and Wales, because they will not have any liabilities under the scheme. The PCT will settle those cases on the basis of its own liability under a non-delegable duty of care, rather than on the basis of someone else’s liability. I hope that that makes the position clear. Without going over the ground again at great length, I turn briefly to the issue of a specified person raised by the noble Baroness, Lady Neuberger. I do not think that we want to be prescriptive about whether that specified person is an executive or non-executive director. I share some of her views that there have been good examples in the public service, including the NHS, where non-executives have been powerful influences for change and have carried through very effectively programmes of change through their influence and their attention to a particular subject. Where I would agree with both the noble Earl and the noble Baroness, Lady Neuberger, is that if it is not a senior person with influence at board level, it is difficult to see how they could discharge those obligations effectively; and there have been a number of areas where board members, executive or non-executive, have taken on responsibilities without setting up the kind of bureaucracy that the noble Baroness, Lady Tonge, alluded to. We are conscious of the need to stop bureaucracy growing. I shall not repeat all the wonderful things that we have done in that area, but I assure the noble Baroness that we are very much in the game of stopping bureaucratic development that is not productive for patient services. We have had a good go over the issue of primary care. We think it appropriate to start the scheme in hospital services. We have not ruled out extending it to primary care services later, especially when we are clearer about their future direction, following the White Paper, but we do not think it right at this stage to prescribe that in the Bill, given the issues that need to be discussed with the Medical Defence Union and the other medical protection societies about liabilities under those schemes for GPs.