Baroness Carnegy of Lour: My Lords, again, I thank the Minister very much. He has partly answered my question in advance in relation to why the word "indemnity" is used when the phrase "medical defence organisation membership" would be a better description. This point may also interest the noble Baroness, Lady Hayman. It has been pointed out to me that medical
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defence organisations have the discretion as to whether or not to assist in negligence claims in certain circumstances and that because they have that discretion, this is not really what is normally understood to be "indemnity". I think that this is an interesting point, which the Government may want to consider. I do not expect an answer now, but the Government may want to alter both parts of the Bill to meet that point if the provisions are not in order, although they may be.
Lord Macdonald of Tradeston: My Lords, I thank the noble Baroness for that point, which we shall certainly consider.
On Question, amendment agreed to.
Clause 46 [Disqualification of Part II practitioners]:
Lord Macdonald of Tradeston moved Amendment No. 78A:
Recovery of charges and payments
Page 35, line 29, leave out ("29E") and insert ("29C").
The noble Lord said: My Lords, this amendment simply corrects an inappropriate cross-reference in the Bill. I beg to move.
On Question, amendment agreed to.
Lord Astor of Hever moved Amendment No. 79:
Page 38, line 10, at end insert--
("( ) After section 30 of the 1978 Act (as substituted by subsection (2)) there is inserted--
"30A. The Tribunal shall make, and publish, an annual report to the Council on Tribunals."").
The noble Lord said: My Lords, this amendment brings the NHS tribunal into line with virtually all others in the tribunal system. The Council on Tribunals makes reports on the effectiveness of particular tribunals and may make recommendations as to improvements that can be made. Given the importance of the NHS tribunal, it would seem sensible for it to make an annual report to the Council on Tribunals in order that its workings may be exposed to expert scrutiny. That would also ensure that recommendations can be made to keep its work up to date. It would also ensure a measure of consistency between the manner in which it operates and that of other tribunals.
An annual report would be in the public interest. The NHS employs more people than any other public sector organisation and is the one part of the welfare state with which almost everyone comes into contact at some stage. That tribunal should not sit apart from the rest of the tribunal system and it should not be allowed to operate without being subject to a reasonable level of public and expert scrutiny. I beg to move.
Lord Macdonald of Tradeston: My Lords, the Council on Tribunals, through its Scottish committee, will be aware of any cases heard by the NHS tribunal as it has the right to attend any hearings before the NHS tribunal. Its own report contains appropriate information about the NHS tribunals. The Scottish committee has given us no indication that it would require an annual report. The proceedings before the tribunal must be held in private unless the practitioner has applied for the inquiry to be held in public. The Secretary of State
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already has a duty to publish any decisions of the tribunal, and such cases are likely to remain relatively rare, because it is only a very small minority of practitioners who commit fraud.
Given those arrangements, I do not believe there is a need for the tribunal in Scotland to make and publish an annual report to the Council on Tribunals. The value of such a report would be limited anyway, as I hope I have made clear, as it would be able to provide no more information than will be available through established means.
Lord Astor of Hever: My Lords, I thank the Minister for that helpful reply. Obviously, I shall read carefully what he said but, in the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Macdonald of Tradeston moved Amendment No. 79A:
After Clause 46, insert the following new clause--
(" .--(1) After section 99 of the 1978 Act there is inserted--
"Recovery of charges and payments.
99ZA.--(1) Where goods or services to which this section applies are provided and either--
(a) any charge payable by any person under this Act in respect of the provision of the goods or services is reduced, remitted or repaid, but that person is not entitled to the reduction, remission or repayment; or
(b) any payment under this Act is made to, or for the benefit of, any person in respect of the cost of obtaining the goods or services but that person is not entitled to, or to the benefit of, the payment,
the amount mentioned in subsection (2) is recoverable as a debt from the person in question by the responsible authority.
(2) That amount--
(a) in a case within subsection (1)(a), is the amount of the charge or (where it has been reduced) reduction;
(b) in a case within subsection (1)(b), is the amount of the payment.
(3) Where two or more persons are liable under section 99 or this section to pay an amount in respect of the same charge or payment, those persons shall be jointly and severally liable.
(4) For the purposes of this section, the circumstances in which a person is to be treated as not entitled to a reduction, remission or repayment of a charge, or to (or to the benefit of) a payment, include in particular those in which it is received (wholly or partly)--
(a) on the ground that he or another is a person of a particular description, where the person in question is not in fact of that description;
(b) on the ground that he or another holds a particular certificate, when the person in question does not in fact hold such a certificate or does hold such a certificate but is not entitled to it;
(c) on the ground that he or another has made a particular statement, when the person in question has not made such a statement or the statement made by him is false.
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(5) In this section and section 99ZB, "responsible authority" means--
(a) in relation to the recovery of any charge under section 99 in respect of the provision of goods or services to which this section applies, the person by whom the charge is recoverable;
(b) in relation to the recovery by virtue of this section of the whole or part of the amount of any such charge, the person by whom the charge would have been recoverable,
(c) in a case within subsection (1)(b), the person who made the payment.
(6) But the Secretary of State may by directions provide for--
(a) the functions of any responsible authority of recovering any charges under this Act in respect of the provision of goods or services to which this section applies;
(b) the functions of any responsible authority under this section and section 99ZB,
to be exercised on behalf of the authority by another health service body.
(7) This section applies to the following goods and services--
(a) dental treatment and appliances provided in pursuance of this Act;
(b) drugs and medicines provided in pursuance of this Act;
(c) the testing of sight;
(d) optical appliances;
(e) any other appliances provided in pursuance of this Act.
99ZB.--(1) Regulations may provide that, where a person fails to pay--
(a) any amount recoverable from him under section 99 in respect of the provision of goods or services to which section 99ZA applies; or
(b) any amount recoverable from him under section 99ZA,
a notice (referred to in this section as a penalty notice) may be served on the person, by or on behalf of the responsible authority, requiring him to pay to the authority, within a prescribed period, that amount together with a charge (referred to in this section as a penalty charge) of an amount determined in accordance with the regulations.
(2) The regulations may not provide for the amount of the penalty charge to exceed whichever is the smaller of--
(b) the amount referred to in subsection (1)(a) or (b) multiplied by 5.
(3) The Secretary of State may by order provide for subsection (2) to have effect as if, for the sum specified in paragraph (a) or the multiplier specified in paragraph (b) (including that sum or multiplier as substituted by a previous order), there were substituted a sum or (as the case may be) multiplier specified in the order.
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(4) Regulations may provide that, if a person fails to pay the amount he is required to pay under a penalty notice within the period in question, he must also pay to the responsible authority by way of penalty a further sum determined in accordance with the regulations.
(5) The further sum must not exceed 50 per cent. of the amount of the penalty charge.
(6) Any sum payable under the regulations (including the amount referred to in subsection (1)(a) or (b)) may be recovered by the responsible authority as a debt.
(7) But a person is not liable by virtue of a penalty notice--
(a) to pay at any time so much of any amount referred to in subsection (1)(a) or (b) for which he is jointly and severally liable with another as at that time has been paid, or ordered by a court to be paid, by that other; or
(b) to a penalty charge, or a further sum by way of penalty, if he shows that he did not act wrongfully, or with any lack of care, in respect of the charge or payment in question.
(8) Section 99ZA and this section apply to charges which may be made and recovered under section 20 of the National Health Service (Primary Care) Act 1997 as they apply to charges under this Act which may be recovered under section 99; and the reference to this Act in section 99ZA(7)(a) includes a reference to a pilot scheme (within the meaning of the 1997 Act).".
(2) In section 105(3) of the 1978 Act (Parliamentary procedure for certain regulations) after "endowments)" there is inserted "or orders under section 99ZB(3)".").
On Question, amendment agreed to.
Clause 47 [Regulation of health care and associated professions]: