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Earl Howe moved Amendment No. 28:
The noble Earl said: Again, this is a probing amendment. I would be grateful if the Minister could say more than he did at Second Reading about how the appeals procedure will work in practice and the sort of circumstances in which it may be invoked. Given the existence of the review procedure, am I right in supposing that the Government do not expect that the formal appeal mechanism will be used all that frequently?
On a different point, which I think it appropriate to raise under the amendment, can the Minister enlighten me on how the system of certification will be able to cope with cases where the medical treatment received in hospital relates to a condition that preceded the road accident but which was exacerbated by it? In the sort of case of which I am thinking, it would not be possible to say that the accident had caused the condition or that the hospital treatment was wholly as a result of injuries sustained in that accident. In such cases, how might the cost of hospital treatment be apportioned? I admit that such cases are likely to be relatively rare. Who would decide? Would it be for the appeals process, if necessary, to examine the matter and to decide each case on its merits? I beg to move.
Lord Hunt of Kings Heath: This clause deals with the arrangements governing appeals. Having for the first time introduced a method of appeal against NHS charges, we accept that detailed provisions must be made to govern how such appeals will be handled. There is no question of our not doing so. As far as that goes, the sentiment behind the amendment is fully appreciated.
This is fairly standard drafting and perhaps I may again refer the noble Earl to the delights of Section 11(5) of the Social Security (Recovery of Benefits) Act 1997. It might be as well to stress here that, having opted to run in parallel with the recovery of benefits system, we intend that the appeal procedures and regulations will follow those found in the benefits recovery system, where at all possible.
The noble Earl asked whether we felt that the formal appeal mechanism will be used frequently. Clearly, we hope not. We hope that system will prove to be administratively sound and that therefore it will not be necessary to use the appeal mechanism very often. Clearly, however, we need to provide for it and for the fact that appeals may still arise.
The noble Earl raised an interesting point on some of the technical issues involved when he referred to pre-existing conditions. That is not a new issue for the CRU. It already deals with that in relation to benefits recovery. I understand that it is not thought that this provision will raise an insurmountable problem.
Earl Howe: Once again, I am grateful to the Minister and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 9 [Appeal to the court on point of law]:
Earl Howe moved Amendment No. 31:
The noble Earl said: This amendment picks up a criticism of the Bill which was levelled at it by the Select Committee on Delegated Powers and Deregulation. It was not clear to the Select Committee--it is not clear to me--why it has to be left to regulations to establish an appeal to the High Court in England and Wales on a point of law whereas for Scotland there is to be an automatic right of appeal (under Clause 9(2)) to the Court of Session. Why is a set of regulations needed to confer a right of appeal south of the Border? I beg to move.
Lord Clement-Jones: I support the noble Earl in his amendment. Members of the Committee will see that Amendment No. 32, which stands in my name, is virtually identical to his amendment and would have exactly the same effect. Like the noble Earl, I cannot see why we cannot have the same certainty of an appeal from an appeal tribunal in these circumstances. As the noble Earl rightly pointed out, the Select Committee on Delegated Powers and Deregulation referred to that. That point should be borne in mind. As I understand it, it is intended in the regulations to give the Secretary of State and insurers a right of appeal against the decision of a tribunal. It seems to me that the place for such a provision is primary legislation, not regulations. We should not be in a worse position than Scotland.
Lord Hunt of Kings Heath: I hope that I shall be able to reassure both the noble Earl and the noble Lord on this point. The Committee will have appreciated that this Bill is designed to follow as closely as possible the format of the recovery of benefits legislation. Where, however, the avenue for further appeal in the benefits recovery scheme lies to the Social Security Commissioners, in the NHS scheme it lies to the courts. In England and Wales, it is necessary, as with appeals to the Social Security Commissioners, to have provisions governing what the court can do once it has heard the appeal. Is it, for example, being asked to replace a decision of the appeal tribunal with one of its own? Is it being asked to refer that decision back with directions to the same tribunal for reconsideration or, indeed, to another tribunal?
Our intention is that appeals in England and Wales should be dealt with under the general provisions found in rules of court. However, the rules of court are under review and we therefore need to ensure that, if the revised rules do not provide sufficiently for our purposes, we have in reserve the power to enable us to make the provisions specifying what the court is being asked to do when considering cases involving NHS charges. We shall also use that power to specify in
The power has not been replicated with regard to appeals to the Court of Session as the review of the rules of court which may affect procedures in England and Wales will not affect procedures in Scotland.
Lord Clement-Jones: Before the Minister sits down, is it not the case that those rules of court have already been published and that it would be perfectly possible to act upon those rules of court in these circumstances, so the right of appeal could be specified in the Bill? On the basis that those rules exist and are being acted on by members of the legal profession, can the noble Lord tell me what makes that situation different from the position in Scotland?
Lord Hunt of Kings Heath: As I have said, my understanding is that rules of court which may affect procedures in England and Wales will not affect procedures in Scotland. The rules of court are still under review. It would be difficult for us on the face of the Bill to anticipate a decision in relation to that review.
Lord Clement-Jones: I am sorry to press the point but, as I understand it, those rules of court are published and can be acted upon. They are not still in draft form. My question about Scotland was: why is it possible to enshrine that right of appeal for Scotland, but not for England and Wales? An assumption is being made that those rules are in place for England and Wales. Why should it be possible to be definite for Scotland, but not for England and Wales?
Lord Hunt of Kings Heath: I can only advise the noble Lord that it is my understanding that that matter is still under review. With regard to Scotland, I can only repeat that the power has not been replicated because the review of the rules of court which may affect procedures in England and Wales will not affect procedures in Scotland. My understanding is that the main rules of court have been published. However, certain existing rules are still being considered for re-enaction pending review of them. On that basis, I ask the noble Lord to withdraw his amendment.
Lord Clement-Jones: It is not up to me to withdraw the main amendment. However, I shall read carefully what the noble Lord has said about the rules. I am not clear in my mind as to the status of those rules. It seems to me as a matter of principle that if those rules are sufficiently certain and agreed as part of the Woolf reforms, a right of appeal should be set out in the primary legislation. We may wish to return to that matter at Report stage.
Earl Howe: I confess that I am similarly puzzled. I shall, of course, read carefully what the noble Lord has said. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 32 and 33 not moved.]
Clause 11 [Provision of information]:
Earl Howe moved Amendment No. 34:
The noble Earl said: The Government have said repeatedly that one of the reasons for introducing the Bill in the first place is to avoid the practice which doctors and nurses understandably find distasteful and difficult of interviewing accident victims to ascertain whether they intend to make a claim for compensation or, in the case of the emergency treatment fee, to ask for money. However, as we know, the Bill abolishes the emergency treatment fee.
My object with this amendment is, first, to ask the Government about the circumstances in which they would envisage the casualty being asked for information, as Clause 11 allows. The way in which road accident victims or their relatives are approached and asked to give information is--as I am sure the noble Lord will agree--most important. The questioning needs to be done with extreme sensitivity if it is not to cause distress. I seek the Minister's confirmation that accident victims will not generally be approached directly by the compensation recovery unit and that most claims and queries will be dealt with via the relevant insurers. What steps will the Government take to ensure that all the relevant authorities are sensitive to the potential traumas and stress that accident victims may experience in respect of their injuries?
My second point is rather different. Insurers generally do not advocate the interrogation of victims while in hospital or after treatment. Victims who make a claim will be asked the necessary questions by the insurer to establish what the liability may be, including whether NHS treatment was received. In the vast majority of cases this information will be volunteered perfectly readily. However, it is possible that a victim may refuse to supply information on a hospital stay. That leaves the insurer with a legal obligation to pass this information to the CRU but with no enforceable right to obtain it. I should be grateful for the Minister's comments on that point. I beg to move.
Page 6, line 5, leave out ("may") and insert ("shall").
5.30 p.m.
Page 6, line 36, leave out ("Regulations may provide that") and insert ("In England and Wales,").
Page 7, line 30, leave out ("the traffic casualty or,").
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