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Baroness Hayman: My Lords, the noble Baroness asks exactly the questions to which we must work out the answers together with the professionals to ensure that the services that are offered--for example, general practice in the high street--are properly and effectively run. I believe that I made clear that initially the provision of direct services is more likely to take place in an existing NHS setting. That is one of a number of options that we are considering to improve access to high quality care. It is too early to provide the details. We have set out the direction of travel.
But we should not think only of GP services. We must build on the work that is done by community pharmacists. That is an issue about which we have spoken in your Lordships' House on many occasions. People place faith in pharmacists to provide well-informed advice, particularly on the treatment of minor ailments. We want to see the role of pharmacists generally and community pharmacists in particular extended. Not to make full and proper use of their skills and knowledge is a waste of a highly effective resource that can provide exactly the easy access to services in the high street about which we have been speaking.
Lord Hoyle: My Lords, I beg to move that the House do adjourn during pleasure until 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed.
[The Sitting was suspended from 7.52 to 8.35 p.m.]
Health Bill [H.L.]
Consideration of amendments on Report resumed on Clause 6.
Lord Hunt of Kings Heath moved Amendment No. 18:
The noble Lord said: My Lords, I wish to speak to a rather large group of amendments. However, I can assure the House that I shall be brief.
The amendments repair some typing and drafting errors which managed to creep into the Bill and were not spotted prior to its introduction. I beg to move.
On Question, amendment agreed to.
Lord Hunt of Kings Heath moved Amendment No. 19:
Page 6, leave out line 38 and insert--
("amount,
by an amount not exceeding that sum".").
After Clause 6, insert the following new clause--
(".--(1) Before section 44 of the 1977 Act there is inserted--
Indemnity cover.
43C.--(1) Regulations may make provision for the purpose of securing that, in prescribed circumstances, prescribed Part II practitioners hold approved indemnity cover.
(2) The regulations may, in particular, make provision as to the consequences of a failure to hold approved indemnity cover, including provision--
(a) for securing that a person is not to be added to any list unless he holds approved indemnity cover;
(b) for the removal from a list prepared by a Health Authority of a Part II practitioner who does not within a prescribed period after the making of a request by the Health Authority in the prescribed manner satisfy the Health Authority that he holds approved indemnity cover.
(3) For the purposes of this section--
"approved body" means a person or persons approved in relation to indemnity cover of any description, after such consultation as may be prescribed, by the Secretary of State or by such other person as may be prescribed;
"approved indemnity cover" means indemnity cover made--
(a) on prescribed terms; and
(b) with an approved body;
"indemnity cover", in relation to a Part II practitioner (or person who proposes to provide Part II services), means a contract of insurance or other arrangement made for the purpose of indemnifying him and any person prescribed in relation to him to any prescribed extent against any liability which--
(a) arises out of the provision of Part II services in accordance with arrangements made by him with a Health Authority under this Part of this Act; and
(b) is incurred by him or any such person in respect of the death or personal injury of a person;
"list" has the same meaning as in section 46 below;
"Part II practitioner" means a person whose name is on a list;
"Part II services" means general medical services, general dental services, general ophthalmic services or pharmaceutical services;
"personal injury" means any disease or impairment of a person's physical or mental condition and includes the prolongation of any disease or such impairment;
and a person holds approved indemnity cover if he has entered into a contract or arrangement which constitutes approved indemnity cover.
(5) The regulations may provide that a person of any description who has entered into a contract or arrangement which is--
(a) in a form identified in accordance with the regulations in relation to persons of that description; and
(b) made with a person or persons so identified,
is to be treated as holding approved indemnity cover for the purposes of the regulations."
(2) In section 29A of the 1977 Act (medical lists), at the beginning of subsection (3) there is inserted "Subject to any provision made under section 43C below,".
(3) In section 36 of that Act (regulations as to arrangements for general dental services), in subsection (1)(b), after "below" there is inserted "to any provision made under section 43C below".
(4) In section 39 of that Act (regulations as to arrangements for general ophthalmic services), in subsection (1)(b), after "subject" there is inserted "to any provision made under section 43C below".").
The noble Lord said: My Lords, I suspect that this amendment will take a little longer. The amendment makes an important contribution to help patients on the fortunately rare occasions when something goes wrong. It will ensure that GPs, dentists, pharmacists and optometrists practising in the family health services are able to meet any damages that might be awarded against them in cases of death or personal injury caused to their patients.
At the moment neither doctors nor dentists are required legally to maintain professional indemnity cover. Although those employed in the NHS, for example in an NHS trust, are covered by NHS indemnity for general medical practitioners and high street dentists, we rely on the guidance of the regulatory bodies and the professional organisations. We consider that to be unsatisfactory.
In September 1996 there was considerable interest in a case which involved a dentist in Lancashire who was continuing to practise without professional indemnity. A patient who suffered at his hands began legal proceedings to prove negligence, but at the assessment hearing the judge established that the dentist was not in benefit of professional indemnity cover at the material time. Since he had no assets, he was unable to meet the £23,000 damages awarded; and unfortunately there have been other similar cases. To suffer harm as a result of a visit to your doctor or dentist is bad enough; to then find that you are unable to receive the compensation you deserve is of great concern. I believe that in the interests of patients clinicians should not practise on the NHS without proper professional indemnity cover.
This amendment would allow the Secretary of State to require Part II family health service practitioners--those are the professions providing general medical services, general dental services, general ophthalmic services, or pharmaceutical services--to hold indemnity cover. I should say that the vast majority of those practitioners already act responsibly by arranging suitable indemnity cover for their work. By covering all, this amendment seeks to address the small minority who are not so responsible.
The Secretary of State would be able to enforce the requirement in either or both of two ways. Regulations could specify that having approved indemnity cover is a requirement to joining a health authority list for a Part II service. Noble Lords will be aware that practitioners must be on such a list in order to provide those services on the NHS. This requirement would also specify that practitioners on the list must hold approved indemnity in order to remain on the list.
The second way the requirement could be made is that the regulations under this amendment could allow the Secretary of State to specify that the holding of
The two approaches allow flexibility. The four different family health services are different from each other and also different in their relationships with the health authority under the 1977 Act. Both approaches give proper protection to patients, but would allow the Secretary of State to apply the appropriate mechanism to the circumstances.
The amendment states that the indemnity cover which must be held is to be approved indemnity cover. This is to ensure that cover is adequate to meet the anticipated level of claims and remains contemporaneous with the event giving rise to the claim. For example, we might want to ensure that adequate cover remained in place after a practitioner had ceased clinical practice to meet a claim should an adverse event come to light some years later. Approval would be given by the Secretary of State, although this could be delegated to, for example, a small representative group of interested parties set up under the regulations to carry out this function on behalf of the Secretary of State. In the interests of probity such a group would of course exclude any potential providers of indemnity cover. In forming decisions on approval of indemnity, we envisage there being consultation with the provider bodies concerned.
To provide full protection for patients, the amendment provides for the approved practitioners to hold indemnity cover which covers not just themselves--the practitioners on the health authority's list--but which also provides indemnity against claims for their assistants, deputies, employees and for any auxiliary whose work they may direct. We will also be able to ensure that health authorities review the indemnity cover held by Part II practitioners at regular intervals. Where the requirement was that indemnity must be held to remain on the health authority list, the result of failure to comply would mean removal from the list, subject to a short period of grace allowing practitioners time to put their house in order. The length of that period of grace could be specified in the regulations. As I said a moment ago, staff employed by NHS bodies, when providing services under the NHS, are covered by the present NHS indemnity scheme. The amendment does not alter or interfere with those arrangements.
We have consulted widely on these proposals among patient groups, professional bodies, and with the providers of indemnity cover. I am pleased to say that our proposals have been supported. This amendment will enable patients to be protected, and properly compensated on those rare occasions when something goes wrong. Where a patient is deserving of compensation, we believe that they should be able to receive it. I commend this amendment to the House. I beg to move.
8.45 p.m.
Lord Clement-Jones: My Lords, I thank the Minister for that very clear introduction to this amendment. In principle, we firmly support the terms of the amendment. It is clearly crucial that the practitioner is covered "at the material time"--the phrase used by the Minister in his introduction--because otherwise great unfairness and injustice ensues if, having had the trauma of an injury or a failure of treatment, the patient is subsequently unable to obtain compensation in the way described by the Minister.
The vast majority of Part II practitioners do hold indemnity insurance but it is important that there is this safety net. In some ways it is highly surprising that we have not had this on the statute book before. Speaking as a solicitor, I have to hold indemnity insurance and that is true also for other professions.
It would be helpful if the Minister could deal with some points of clarification. The definition of approved indemnity cover includes cover made on prescribed terms. The Minister referred to a body which might be delegated to discuss this question. Is the Secretary of State expecting to lay down requirements which would mean GPs having to increase or to change their current level of cover? Is that in prospect or is this simply a mechanism for future change? It would be important that the consultations described by the Minister included no change to the regime currently practised by those practitioners who do have insurance.
Secondly, will there be different levels of cover for different types of practitioners? It is difficult to give a blanket definition of the level of cover that GPs in particular may need. Some of them provide only core general medical services, while others will be undertaking obstetric or child surveillance work, for instance, both of which would cover much greater liability risks. Flexibility in that prescription, so to speak, would be important.
The amendment relates only to Part II practitioners. That of course is the vast majority of practitioners, dentists and so on who provide those services. But why does it relate only to them? For instance, there are GPs working in pilot schemes who are Part I practitioners. It would be important to make sure that they too were covered by this type of indemnity insurance.
I have referred throughout to the phrase "indemnity insurance". There is the feeling, particularly among members of the medical profession, that their type of cover is not described as indemnity insurance. The kind of mutual cover which is provided by their medical defence organisations technically is described as something else: it is membership rather than indemnity insurance. That may be a technical phrase. I do not know whether it has some significance, but perhaps the Minister will be able to answer that.
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