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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Patient redress investigators
(1)
The Secretary of State shall by order make provision for the appointment of
suitably qualified patient redress investigators who shall have conduct of the
investigation of the facts of cases in accordance with section 6(2)(a).
(2)
A patient redress investigator shall—
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(a)
conduct the investigation of the facts of a case in accordance with the
rules of natural justice; and
(b)
produce a report on the principal findings of his investigation and on
any lessons to be learnt in accordance with section 10(2)(h).
(3)
A report produced under subsection (2) may provide the basis for the giving of
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any explanation in accordance with section 3(2)(b) and any assessment of
liability in tort in accordance with section 6(2)(c).
(4)
The Secretary of State shall by order set out the procedures for the investigation
of cases in accordance with section 6(2)(a), prescribing such duties and
conferring such powers on patient redress investigators as he may consider
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appropriate for the effective discharge of their functions.
(5)
The Commission for Healthcare Audit and Inspection shall maintain and
publish a list of patient redress investigators, and shall have responsibility for
overseeing the carrying out of the functions of such investigators.
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Duties of co-operation
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(1)
The scheme authority under a scheme and the Commission for Healthcare
Audit and Inspection must co-operate with each other where it appears to
them that it is appropriate to do so for the efficient and effective discharge of
their respective functions.
(2)
The scheme authority under a scheme and the National Patient Safety Agency
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must co-operate with each other where it appears to them that it is appropriate
to do so for the efficient and effective discharge of their respective functions.
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Complaints
(1)
The Secretary of State may by regulations make provision about the handling
and consideration of complaints made under the regulations about
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maladministration by any body or other person—
(a)
in the exercise of functions under a scheme,
(b)
in the exercise of other functions relating to proceedings under a
scheme, or
(c)
in connection with a settlement agreement entered into under a
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scheme.
(2)
Regulations under subsection (1) must provide for complaints to be considered
by—
(a)
the scheme authority, or
(b)
a member of the scheme.
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(3)
Without prejudice to the generality of subsection (1), regulations under that
subsection may make the following provision.
(4)
The regulations may make provision about—

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(a)
the persons who may make a complaint;
(b)
the complaints which may, or may not, be made under the regulations;
(c)
the persons to whom complaints may be made;
(d)
complaints which need not be considered;
(e)
the period within which complaints must be made;
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(f)
the procedures to be followed in making, handling and considering a
complaint;
(g)
matters which are excluded from consideration;
(h)
the making of a report or recommendations about a complaint;
(i)
the action to be taken as a result of a complaint.
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(5)
The regulations may impose on the scheme authority, or a member of the
scheme, obligations with respect to producing, or making available to the
public, information about the procedures to be followed under the regulations.
(6)
The regulations may also—
(a)
provide for different parts or aspects of a complaint to be treated
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differently;
(b)
require the production of information or documents in order to enable
a complaint to be properly considered;
(c)
authorise the disclosure of information or documents relevant to a
complaint to a person who is considering a complaint under the
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regulations, notwithstanding any rule of common law that would
otherwise prohibit or restrict the disclosure.
(7)
The regulations may make provision about complaints which raise both
matters falling to be considered under the regulations and matters falling to be
considered under other statutory complaints procedures, including in
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particular provision for enabling such a complaint to be made under the
regulations.
(8)
The regulations may, in relation to complaints in connection with a scheme
which are made or purport to be made under the regulations, make provision
for securing—
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(a)
that any matters raised in such complaints which fall to be considered
under other statutory complaints procedures are referred to the body
or other person operating the appropriate procedures;
(b)
that any such matters are treated as if they had been raised in a
complaint made under the appropriate procedures.
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(9)
In subsections (7) and (8), “statutory complaints procedures” means
complaints procedures established by or under any enactment.
(10)
In section 31(6) of the Data Protection Act 1998 (c. 29) (exemption from subject
information provisions for personal data processed for purposes of certain
complaints procedures), after “complaint under” insert “section 14 of the NHS
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Redress Act 2006,”.
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Remit of Health Service Commissioner for England
(1)
The Health Service Commissioners Act 1993 (c. 46) is amended as follows.

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(2)
In section 3 (general remit of Commissioner), after subsection (1E) insert—
“(1F)
Where a complaint is duly made to the Commissioner by or on behalf
of a person that the person has sustained injustice or hardship in
consequence of maladministration by any person or body—
(a)
in the exercise of any functions under a scheme established
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under section 1 of the NHS Redress Act 2006,
(b)
in connection with a settlement agreement entered into under
such a scheme, or
(c)
in the exercise of any functions under regulations made under
section 14 of that Act (complaints about maladministration in
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connection with redress scheme),

the Commissioner may, subject to the provisions of this Act, investigate
the alleged maladministration.”
(3)
In section 4 (availability of other remedy), in subsection (4)(a)—
(a)
for “or (1C)” substitute “, (1C) or (1F)(a) or (b)”, and
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(b)
after “Act 2003” insert “, under section 14 of the NHS Redress Act 2006”.
(4)
In section 7(2) (which excludes contracts from the remit of the
Commissioner)—
(a)
the word “and” at the end of paragraph (b) is repealed, and
(b)
at the end insert “, and
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“(d)
matters arising from settlement agreements entered into
under a scheme established under section 1 of the NHS
Redress Act 2006.”
(5)
In section 11 (procedure in respect of investigations), in subsection (1C), after
“section 3(1E)” insert “or (1F)”.
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(6)
In section 12 (evidence), in subsection (1A) for “or (1E)” substitute “, (1E) or
(1F)”.
(7)
In section 14 (reports by the Commissioner) after subsection (2F) insert—
“(2G)
In any case where the Commissioner conducts an investigation
pursuant to a complaint under section 3(1F) he shall send a report of the
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results of the investigation—
(a)
to the person who made the complaint,
(b)
to any member of the House of Commons who to the
Commissioner’s knowledge assisted in the making of the
complaint (or if he is no longer a member to such other member
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as the Commissioner thinks appropriate),
(c)
to the person or body whose maladministration is complained
of,
(d)
in the case of a complaint under section 3(1F)(c), to any person
or body whose action was complained of in the complaint made
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to the person or body whose maladministration is complained
of, and
(e)
to the Secretary of State.
(2H)
In any case where the Commissioner decides not to conduct an
investigation pursuant to a complaint under section 3(1F) he shall send
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a statement of his reasons—
(a)
to the person who made the complaint, and

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(b)
to any such member of the House of Commons as is mentioned
in subsection (2G)(b).”
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Regulations
(1)
The provisions of this Act about what a scheme may do are without prejudice
to the generality of the power under section 1(1).
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(2)
Any power of the Secretary of State to make regulations under this Act
includes—
(a)
power to make provision conferring or imposing functions which
involve the exercise of a discretion,
(b)
power to make different provision for different cases, and
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(c)
power to make incidental, supplementary, consequential or
transitional provision or savings.
(3)
The power under subsection (2)(c) to make consequential amendments
includes power to make provision amending or revoking any instrument made
under an enactment.
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(4)
Any power of the Secretary of State to make regulations under this Act (as well
as being exercisable in relation to all cases to which it extends) may be
exercised in relation to all those cases subject to exceptions or in relation to any
particular case or class of case.
(5)
Any power of the Secretary of State to make regulations under this Act is
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exercisable by statutory instrument.
(6)
No regulations establishing a scheme shall be made unless a draft of the
statutory instrument containing them has been laid before and approved by a
resolution of each House of Parliament.
(7)
A statutory instrument that—
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(a)
contains regulations under this Act made by the Secretary of State, and
(b)
is not subject to any requirement that a draft of the instrument be laid
before, and approved by a resolution of, each House of Parliament,

shall be subject to annulment in pursuance of a resolution of either House of
Parliament.
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Wales
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Framework power
(1)
The National Assembly for Wales may by regulations made by statutory
instrument make provision—
(a)
for the purpose of enabling redress to be provided without recourse to
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civil proceedings in circumstances in which, under the law of England
and Wales, qualifying liability in tort arises in connection with the
provision of services (in Wales or elsewhere) as part of the health
service in Wales;
(b)
for any purpose connected with provision under paragraph (a).
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(2)
The reference in subsection (1)(a) to qualifying liability in tort is to liability in
tort owed in respect of or consequent upon personal injury or loss arising out

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of or in connection with breach of a duty of care owed to any person in
connection with the diagnosis of illness, or the care or treatment of any patient.
(3)
Subject to subsection (4), the provision that may be made under subsection (1)
includes any provision that could be made by an Act of Parliament.
(4)
The power conferred by subsection (1) shall not include power—
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(a)
to make any provision imposing or increasing taxation;
(b)
to make provision taking effect from a date earlier than that of the
making of the instrument containing the provision;
(c)
to confer any power to legislate by means of orders, rules, regulations
or other subordinate instrument, other than rules of procedure for any
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court or tribunal;
(d)
to create any new criminal offence;
(e)
to make provision extending otherwise than to England and Wales;
(f)
to make provision applying in relation to England, without the consent
of the Secretary of State.
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(5)
Subsection (4)(c) does not preclude the modification of a power to legislate
conferred otherwise than under subsection (1), or the extension of any such
power to purposes of a like nature as those for which it was conferred.
(6)
A power to give directions as to matters of administration is not to be regarded
as a power to legislate within the meaning of subsection (4)(c).
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(7)
The power under subsection (1)(a) (as well as being exercisable in relation to
all cases to which it extends) may be exercised in relation to all those cases
subject to exceptions or in relation to any particular case or class of case.
Supplementary
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Interpretation
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(1)
In this Act—
“designated Strategic Health Authority” means a Strategic Health
Authority designated for the purposes of this Act by regulations made
by the Secretary of State;
“health service” has the same meaning as in the National Health Service
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Act 1977 (c. 49);
“illness” has the same meaning as in the National Health Service Act 1977;
“patient” has the same meaning as in the National Health Service Act
1977;
“personal injury” includes any disease and any impairment of a person’s
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physical or mental health;
“scheme”, except in section 1, means a scheme established under that
section;
“scheme authority” has the meaning given by section 11(1);
“specified”, in relation to a scheme, means specified in the scheme.
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(2)
In this Act, references to functions in connection with a scheme include
functions in relation to settlement agreements under the scheme.