NHS Redress Bill [HL]

House of Commons

Session 2005 - 06
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Other Bills before Parliament

NHS Redress Bill [HL]

NHS Redress Bill [HL]
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[NOTE: The words marked in bold type were inserted by the Lords to avoid
questions of privilege.]
A
Bill
To
Make provision about arrangements for redress in relation to liability in tort in
connection with services provided as part of the health service in England or
Wales; and for connected purposes.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
England
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Power to establish redress scheme
(1)
The Secretary of State may by regulations establish a scheme for the purpose of
enabling redress to be provided without recourse to civil proceedings in
circumstances in which this section applies.
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(2)
This section applies where under the law of England and Wales qualifying
liability in tort on the part of a body or other person mentioned in subsection
(3) arises in connection with the provision, as part of the health service in
England, of qualifying services.
(3)
The bodies and other persons referred to are—
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(a)
the Secretary of State,
(b)
a Primary Care Trust,
(c)
a designated Strategic Health Authority, and
(d)
a body or other person providing, or arranging for the provision of,
services whose provision is the subject of arrangements with a body or
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other person mentioned in paragraph (a), (b) or (c).
(4)
The reference in subsection (2) to qualifying liability in tort is to liability in tort
owed—
(a)
in respect of or consequent upon personal injury or loss arising out of
or in connection with breach of a duty of care owed to any person in
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connection with the diagnosis of illness, or the care or treatment of any
patient, and
(b)
in consequence of any act or omission by a health care professional.

Bill 137 54/1

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(5)
For the purposes of subsection (2), services are qualifying services if—
(a)
they are provided in a hospital (in England or elsewhere), or
(b)
they are of such other description (including a description involving
provision outside England) as the Secretary of State may specify by
regulations.
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(6)
Regulations under subsection (5)(b) may not specify services of any of the
following descriptions—
(a)
primary dental services,
(b)
primary medical services,
(c)
services provided under section 38 of the National Health Service Act
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1977 (c. 49) (general ophthalmic services),
(d)
services provided under section 41 of that Act (arrangements for
pharmaceutical services) or by virtue of section 41A of that Act
(arrangements for additional pharmaceutical services), and
(e)
services of a kind which may be provided under section 41 of that Act,
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or by virtue of section 41A of that Act, which are provided under
Schedule 8A to that Act (local pharmaceutical services schemes) or
section 28 of the Health and Social Care Act 2001 (c. 15) (local
pharmaceutical services pilot schemes).
(7)
The references in subsection (6) to primary dental services and primary
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medical services are to primary dental services and primary medical services
under Part 1 of the National Health Service Act 1977, except that the Secretary
of State may by regulations provide that services of a description specified in
the regulations are not to be regarded as primary dental services or primary
medical services for the purposes of that subsection.
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(8)
Regulations under subsection (5)(b) or (7) may, in particular, describe services
by reference to the manner or circumstances in which they are provided.
(9)
In subsection (3)(d), the reference to a person providing services does not
include a person providing services under a contract of employment.
(10)
In subsection (4), the reference to a health care professional is to a member of a
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profession (whether or not regulated by, or by virtue of, any enactment) which
is concerned (wholly or partly) with the physical or mental health of
individuals.
(11)
In this section, “hospital” has the same meaning as in the National Health
Service Act 1977.
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2
Application of scheme
(1)
Subject to subsection (2), a scheme may make such provision defining its
application as the Secretary of State thinks fit.
(2)
A scheme must provide that it does not apply in relation to a liability that is or
has been the subject of civil proceedings.
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Redress under scheme
(1)
Subject to subsections (2) and (5), a scheme may make such provision as the
Secretary of State thinks fit about redress under the scheme.
(2)
A scheme must provide for redress ordinarily to comprise—

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(a)
the making of an offer of compensation in satisfaction of any right to
bring civil proceedings in respect of the liability concerned,
(b)
the giving of an explanation, and
(c)
the giving of an apology,

but may specify circumstances in which one or more of those forms of redress
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is not required.
(3)
A scheme may, in particular—
(a)
make provision for the compensation that may be offered to take the
form of entry into a contract to provide care or treatment or of financial
compensation, or both;
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(b)
make provision about the circumstances in which different forms of
compensation may be offered.
(4)
A scheme that provides for financial compensation to be offered may, in
particular—
(a)
make provision about the matters in respect of which financial
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compensation may be offered;
(b)
make provision with respect to the assessment of the amount of any
financial compensation.
(5)
A scheme that provides for financial compensation to be offered—
(a)
may specify an upper limit on the amount of financial compensation
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that may be included in an offer under the scheme;
(b)
if it does not specify a limit under paragraph (a), must specify an upper
limit on the amount of financial compensation that may be included in
such an offer in respect of pain and suffering;
(c)
may not specify any other limit on what may be included in such an
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offer by way of financial compensation.
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Commencement of proceedings under scheme
(1)
A scheme may make such provision as the Secretary of State thinks fit about
the commencement of proceedings under the scheme.
(2)
A scheme may, in particular, make provision—
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(a)
about who may commence proceedings under the scheme;
(b)
about how proceedings under the scheme may be commenced;
(c)
for time limits in relation to the commencement of proceedings under
the scheme;
(d)
about circumstances in which proceedings under the scheme may not
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be commenced;
(e)
requiring proceedings under the scheme to be commenced in specified
circumstances;
(f)
for notification of the commencement of proceedings under the scheme
in specified circumstances.
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Duty to consider potential application of scheme
(1)
The Secretary of State may by regulations make provision requiring any body
or other person mentioned in subsection (2)—

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(a)
to consider, in such circumstances as the regulations may provide,
whether a case that the body or other person is investigating or
reviewing involves liability to which a scheme applies, and
(b)
if it appears that it does, to take such steps as the regulations may
provide.
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(2)
The bodies and other persons referred to are—
(a)
any body or other person to whose liability a scheme applies, and
(b)
the Commission for Healthcare Audit and Inspection.
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Proceedings under scheme
(1)
Subject to subsections (3) and (4), a scheme may make such provision as the
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Secretary of State thinks fit about proceedings under the scheme.
(2)
A scheme may, in particular, make provision—
(a)
about the investigation of cases under the scheme (such investigation to
be confined to investigation of the facts of cases and not to consider
issues of liability in tort);
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(b)
about the making of decisions about the application of the scheme;
(c)
about the assessment of liability in tort under the scheme;
(d)
for time limits in relation to acceptance of an offer of compensation
under the scheme;
(e)
about the form and content of settlement agreements under the scheme;
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(f)
for settlement agreements under the scheme to be subject in cases of a
specified description to approval by a court;
(g)
about the termination of proceedings under the scheme.
(3)
A scheme must provide for a settlement agreement under the scheme to
include a waiver of the right to bring civil proceedings in respect of the liability
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to which the settlement relates.
(4)
A scheme must provide for the termination of proceedings under the scheme
if the liability to which the proceedings relate becomes the subject of civil
proceedings.
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Suspension of limitation period
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(1)
A scheme must make provision for the period during which a liability is the
subject of proceedings under the scheme to be disregarded for the purposes of
calculating whether any relevant limitation period has expired.
(2)
In subsection (1), the reference to any relevant limitation period is to any
period of time for the bringing of civil proceedings in respect of the liability
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which is prescribed by or under the Limitation Act 1980 (c. 58) or any other
enactment.
(3)
A scheme may define for the purposes of provision in pursuance of subsection
(1) when liability is the subject of proceedings under the scheme.
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Legal advice etc.
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(1)
Subject to subsection (2), a scheme may make such provision as the Secretary
of State thinks fit—

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(a)
for the provision in connection with proceedings under the scheme of
legal advice without charge;
(b)
for the provision in connection with proceedings under the scheme of
other services, including the services of medical experts.
(2)
A scheme must make such provision as the Secretary of State considers
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appropriate in order to secure that individuals to whom an offer under the
scheme is made have access to legal advice without charge in relation to—
(a)
the offer, and
(b)
any settlement agreement.
(3)
Provision under subsection (1)(a) or (2) about who may provide the legal
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advice may operate by reference to whether a potential provider is included in
a list prepared by a specified person.
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Assistance for individuals seeking redress under scheme
(1)
It is the duty of the Secretary of State to arrange, to such extent as he considers
necessary to meet all reasonable requirements, for the provision of assistance
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(by way of representation or otherwise) to individuals seeking, or intending to
seek, redress under a scheme.
(2)
The Secretary of State may make such other arrangements as he thinks fit for
the provision of assistance to individuals in connection with cases which are
the subject of proceedings under a scheme.
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(3)
The Secretary of State may make payments to any person in pursuance of
arrangements under this section.
(4)
In making arrangements under this section, the Secretary of State must have
regard to the principle that the provision of services under the arrangements in
connection with a particular case should, so far as practicable, be independent
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of any person to whose conduct the case relates or who is involved in dealing
with the case.
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Scheme members
(1)
A scheme may make such provision as the Secretary of State thinks fit—
(a)
about membership of the scheme on the part of any body or other
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person to whose liability the scheme applies, and
(b)
about the functions of members in connection with the scheme.
(2)
A scheme may, in particular—
(a)
require or permit a specified body or other person to be a member of
the scheme;
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(b)
require a member of the scheme to carry out specified functions in
relation to specified proceedings under the scheme;
(c)
authorise members of the scheme to make arrangements under which
functions under the scheme are carried out by one member on behalf of
another;
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(d)
require members of the scheme to have regard, in relation to the
carrying out of functions under the scheme, to any relevant advice or
other guidance issued by the scheme authority;

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(e)
require, or enable the scheme authority to require, members of the
scheme to keep specified records in relation to the carrying out of
functions under the scheme;
(f)
require, or enable the scheme authority to require, members of the
scheme to provide the authority with information or documents
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relevant to its functions;
(g)
require members of the scheme to make payments in accordance with
the scheme by way of contribution to specified costs of its operation;
(h)
require a member of the scheme to charge a specified person with
responsibility for overseeing the carrying out of specified functions
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conferred on the member under this Act and advising the member
about lessons to be learnt from cases involving the member that are
dealt with under the scheme;
(i)
require a member of the scheme to prepare and publish an annual
report about such cases and the lessons to be learnt from them.
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(3)
The provision that may be made under this section includes provision which
has the effect that a member of a scheme who has arranged for the provision of
services has functions under the scheme which relate to someone else’s liability
in connection with the provision of the services.
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Scheme authority
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(1)
A scheme must make provision for a specified Special Health Authority (in this
Act referred to as “the scheme authority”) to have such functions in connection
with the scheme as the Secretary of State thinks fit.
(2)
A scheme may, in particular, provide for the scheme authority to have
functions in relation to—
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(a)
proceedings under the scheme save for the investigation of the facts of
cases in accordance with section 6(2)(a);
(b)
payments under settlement agreements under the scheme;
(c)
the provision in connection with the scheme of advice or other
guidance about specified matters;
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(d)
the provision in connection with the scheme of legal advice without
charge;
(e)
the assessment and payment of contributions by members of the
scheme;
(f)
the monitoring of the carrying out by members of the scheme of their
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functions under it;
(g)
the provision to the Independent Regulator of Foundation Trusts of
reports with respect to failure by NHS foundation trusts to carry out
functions under the scheme;
(h)
the publication of annual data about the scheme.
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(3)
Section 11(1) of the National Health Service Act 1977 (c. 49) (power to establish
special bodies for the purpose of exercising any functions which may be
conferred on them by or under that Act) shall have effect as if the provisions of
this Act were contained in that Act.