Health Bill

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Clause 71

Transfer of criminal liabilities of certain

NHS bodies

Dr. Murrison: I beg to move amendment No. 23, in clause 71, page 54, line 17, leave out 'which may be' and insert 'that will be'.

The Chairman: With this it will be convenient to discuss the following amendments:

No. 24, in clause 71, page 54, line 28, leave out 'which may be' and insert 'that will be'.

No. 25, in clause 71, page 55, line 2, leave out 'which may be' and insert 'that will be'.

No. 26, in clause 71, page 55, line 9, leave out 'which may be' and insert 'that will be'.

No. 27, in clause 71, page 55, line 14, leave out 'which may be' and insert 'that will be'.

No. 28, in clause 71, page 55, line 19, leave out 'which may be' and insert 'that will be'.

Dr. Murrison: We now enter the final furlong of the Committee stage. The clause is particularly welcome; the amendments simply beef up the wording, which places obligations on organisations to have their liabilities transferred. The wording seems to me to be permissive rather than obligatory. The amendments would beef up the wording so that the liabilities were transferred.

We are discussing criminal liabilities in the context of NHS bodies, but it is worth pointing out that the Government establish, disestablish and merge NHS bodies at a phenomenal rate and it is particularly welcome that they should ensure that when they do so, the bodies' liabilities are transferred to successor organisations.

Many of us who have witnessed the demise of various health authorities in the past few years will bear witness to the fact that once the bodies are dissolved, their sins of omission and commission often dissolve with them. I have had a five-year quest to find out why certain things have gone wrong with my own local health care economy. The common factor appears to be a health authority that has long since dissolved and the persons associated with it dispersed. To be perfectly honest, trying to pin anything on the authority is a bit like trying to nail jelly to the wall. Any measure that helps us to transfer liabilities of any sort from one NHS body to another is to be warmly
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welcomed. The case in question is clearly a criminal matter.

It would be nice to hear the Minister say that liabilities in general should be properly transferred when bodies disestablish, merge or close down. Given the rate at which such bodies appear to be doing just that, it is important to retain the audit trail so that we can attribute things when they go wrong. That goes for bodies and, in the context of proper management, individuals. Since I have been a Member of Parliament, dealing with my local health care economy has been a source of great frustration. I welcome the clause to the extent that it helps us attribute things properly. I hope that in that spirit, the Minister will accept our amendments.

Caroline Flint: The need for clause 71 arose following a Court of Appeal ruling in the case of R v. The Pennine Acute Hospitals NHS Trust, formerly Rochdale Health Care NHS Trust. In that case, the Court held that the general power in paragraph 30 of schedule 2 to the NHS and Community Care Act 1990 to transfer property rights and liabilities on the dissolution of an NHS trust did not include the power to transfer criminal liabilities. The Court stated that if it was the intention to transfer criminal liability, the legislation should explicitly say so.

There were clearly issues surrounding the perception that the powers transferred criminal liabilities. In a test case the judge decided that they did not, and that is why we have brought forward this clause. I have had discussions with officials about its wording, and when we were considering the issue and addressing the problem highlighted by the Court of Appeal, we thought that it might be necessary to provide a power to transfer criminal liabilities only for those NHS bodies that deliver front-line services—those bodies that could realistically face criminal prosecution in connection with the front-line services that they deliver to patients.

In the case of a strategic health authority, for example, it was difficult to envisage a case in which it might face criminal proceedings about patient care. However, as our thinking developed, we thought that it might be necessary to transfer the criminal liabilities of a front-line body to a strategic health authority when there was no logical or obvious successor to which the powers could be transferred. It means that in the course of natural justice for individuals, any such liabilities that might be transferred to a strategic health authority are similarly transferred onwards in case of its own abolition or dissolution, thereby ensuring that the liabilities are always retained in the NHS.

If the Committee has managed to follow me, it would not normally be necessary to transfer a strategic health authority's criminal liabilities on its abolition, hence it is right to make the provision a power rather than a duty. When an SHA has inherited criminal liabilities from another NHS body delivering front-line services, the power can be used to transfer them onwards in the event of the SHA's abolition.
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It has always been the Department's intention to transfer the criminal liabilities of NHS bodies on their abolition or dissolution, because we want to ensure that public accountability for any criminal offence is retained in the NHS. I hope that the hon. Member for Westbury agrees that the very fact that we have brought forward the clause shows our intention to transfer such liabilities. That is the Department's intention.

The second reason why the provision should be framed as a power rather than a duty is that it falls in line with various pieces of health legislation that provide the Secretary of State or the National Assembly for Wales with a power to transfer the property rights and liabilities of an NHS body to another NHS body on the former's dissolution or abolition.

The slightly unusual nature of the liability in question means that it is sensible to have a power rather than a duty. The Court of Appeal made it clear in its ruling that criminal liabilities were somewhat different in nature to other, general liabilities. However, I think that we are all agreed that we certainly do not want to create a situation in which people who are the victims of criminal offences lose out on justice just because an organisation is dissolved or reorganised into a different body.

Dr. Murrison: I thank the Minister for that. Of course, I accept that criminal liabilities are very different from general liabilities. I have no doubt that that is the case. I accept the explanation that she has given and I hope that she will accept my more general point about the transfer of general liabilities, because it is important. With her reassurance, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 71 ordered to stand part of the Bill.

New Clause 8

Amendments relating to Local Health Boards and abolition of Welsh health authorities

    (a) in order to reflect the fact that (by virtue of relevant directions) transferred functions may be exercised by Local Health Boards, or

    (b) otherwise in consequence of, or in connection with, the abolition of Welsh health authorities effected under section 27(5) of the Government of Wales Act 1998 (c.38).

    (2) Where a transferred function which became exercisable by a Local Health Board by virtue of relevant directions ceases to be so exercisable, the Secretary of State or the Assembly may by order—

    (a) substitute for any reference to a Local Health Board in any enactment relating to the function a reference to the Assembly, and

    (b) make such amendments of any enactment as he or it considers appropriate in consequence of any such substitution.

    (3) No order may be made under subsection (1)(a) in relation to a transferred function on or after the date on which subsection (4) applies to the function.

    (4) This subsection applies to a transferred function on the date when either of the following comes into force in relation to the function—

    (a) an order made under subsection (1)(b) which amends an enactment so as to provide for the function to be exercisable only by the Assembly, or

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      (b) an order made under subsection (2).

      (5) In this section—

      ''amendments'' includes repeals, revocations and modifications;

      ''the Assembly'' means the National Assembly for Wales;

      ''relevant directions'' means directions given in regulations made under section 16BB of the National Health Service Act 1977 (c.49);

      ''transferred function'' means a function transferred to the Assembly by the Health Authorities (Transfer of Functions, Staff, Property, Rights and Liabilities and Abolition) (Wales) Order 2003 (S.I. 2003/813 (W. 98));

      ''Welsh health authority'' means a Health Authority for an area in, or consisting of, Wales.'.—[Caroline Flint.]

    Brought up, and read the First time.

    Caroline Flint: I beg to move, That the clause be read a Second time formally.

    The Chairman: With this it will be convenient to discuss Government amendments Nos. 138 to 140.

    Dr. Murrison: I am slightly surprised that the Minister did not speak to the new clause because these are Government changes and I thought that the Minister might like to explain why she is introducing them at this stage. I would have liked her to do so.

    Caroline Flint: New clause 8 and related minor amendments Nos. 138, 139 and 140 allow the Secretary of State or the National Assembly for Wales to make orders by statutory instrument to deal with out-of-date references to health authorities in legislation. Since the establishment of PCTs in England and local health boards in Wales, there are no longer any health service bodies called health authorities. The order-making power will enable statutory references to be updated. Such an order could be used to reflect the fact that, since the abolition of health authorities in Wales, most of their former functions have been delegated to local health boards. If the Assembly were to decide to withdraw that delegation in future, the order could substitute a reference to the Assembly in place of a reference to a local health board. These are technical changes to update the language used.

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