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The Minister of State, Department of Health (Lord Warner): My Lords, I understand the strength of feeling and the rationale, although I do not necessarily accept the rationale behind the new clause, as I will explain. We have had a good rehearsal of the issues in and around independent investigation, and I will set out our views on that when we come to the amendments that are more relevant to that issue.

I want to explain why we believe that there are no good reasons for including this new clause in the Bill. The purpose of a Bill of this kind should, of course, be explained, but it should be explained alongside the legislation, not in it. Explanatory Notes have been published alongside the Bill, which make it clear that the scheme is a mechanism for enabling redress to be provided without the need to go to court. We have also published a statement of policy. Again, this makes it clear that the scheme will provide an alternative to litigation. Paragraph 14 states:

We therefore believe that the purpose of the Bill—that the redress scheme is another way of seeking redress—is fully explained.

3.45 pm

The problem with "explanatory text" such as that set out in the amendment is that it is not clear whether it is explanatory or has new substantive effect. Such clauses can, paradoxically, easily cause more confusion than they were intended to solve. For that reason they should be avoided. If there is no doubt or uncertainty, extra words should not be added to
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legislation, even when the words are intended to be helpful. The amendment would include an express reference to the right to bring civil proceedings; but that may lead to doubt about whether there is a similar right to bring civil proceedings in other contexts and under other enactments when there is no such stated right.

Overall, as I have said, such a clause would not assist people, but cause confusion. The clause would not provide patients with any additional certainty about how redress could be sought in their particular circumstances. Redress may be sought via the redress scheme or by issuing civil proceedings. I believe that it causes confusion to suggest that redress may be sought through the NHS Litigation Authority or through a specified independent disputes resolution service.

The NHS Litigation Authority manages claims against the NHS by administering the clinical negligence scheme for trusts; it manages claims where civil proceedings have been initiated; if there is no right to bring civil proceedings, the NHS Litigation Authority will not administer the claim. The amendment seems to suggest that redress via the NHS Litigation Authority or via a dispute resolution service are two alternative routes for seeking redress, even though those routes depend on the right to bring civil proceedings. There are a number of other such reasons why we think the amendment causes confusion. I am very happy to set those out in more detail in writing to noble Lords rather than detain the House further.

I am not clear, for example, whether the amendment is intended to create a new specified disputes resolution procedure independent of the health service in England and Wales. It could be interpreted in that way. Setting up a new independent specified dispute resolution service would require wide consultation; it again raises questions in terms of costs and administration, none of which has been addressed. The inclusion of this allegedly explanatory clause at the beginning of the Bill would therefore add complication and confusion.

I suggest that we do not proceed with this proposed new clause. We will have our debate about investigation and independent investigation later, but in the mean time I have to say that we consider the amendment highly inappropriate.

Baroness Barker: My Lords, I welcome the supportive comments of the noble Earl, Lord Howe. He rightly characterised our amendment as an attempt to put patients back into the middle of the process.

I listened carefully to the Minister and his caution about including explanatory text in legislation. The more this Government come up with Bills that are set—almost entirely sometimes—in terms of regulatory powers, the more this side of the House will seek clearer explanations in legislation. However, I take on board what he said about some elements where there is a lack of clarity. I would very much welcome a letter from him setting out in detail his criticism of the proposed text.
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At this stage, therefore, I am happy to take the amendment away. However, I do not resile for one moment from the general point of the amendment: the fact-finding process should be independent, and a person who feels they have a case should have a number of alternative routes that are clearly set out and made known to them. We have sought to address those deficiencies in the Bill, perhaps not perfectly in this text. We will return to them in some detail on later amendments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 [Power to establish redress scheme]:

Lord Warner moved Amendment No. 2:

The noble Lord said: My Lords, during Committee a number of noble Lords raised concerns that the scheme was incapable of adapting to the increasing diversity of NHS healthcare provision. In particular, concerns were raised that the scheme should be able to cover services falling within the grey areas between primary and secondary care, especially as the NHS moves towards greater provision of what have traditionally been secondary care services in primary care environments. Since that debate, the Government have published a White Paper addressing some of the items on the health agenda.

I have taken on board noble Lords' concerns that the scheme should be able to adapt to increasing diversity of service provision and the move towards providing hospital services in the community setting. This group of amendments enables the scheme to list, in secondary legislation, services over and above hospital services that will be covered by the scheme. This will allow flexibility to bring those services falling in the grey areas between primary and secondary care within the scope of the scheme. It will also allow flexibility to adapt the scope of the scheme in the future, in light of changing methods of service provision and delivery.

We consider it appropriate to set out in secondary legislation the details of which services, over and above hospital services, should be designated as qualifying services for the purposes of the scheme. The intention is that the power will be used to cover, for example, services of a kind usually provided in a hospital, which happen not to be so provided, such as pathology laboratory services. These can be provided in hospital or free-standing units. Another example would be services that are currently normally provided in a hospital, but which may in future be more frequently provided outside the hospital setting; an example would be palliative care. A third example would be those services that fall in the grey areas between primary and secondary care. This might describe, for example, ambulance services, which increasingly take on a wider role in the services they provide.

It is appropriate that these services be set out in secondary legislation, due to the changing nature of service provision in the NHS and the potential for further services to be moved out of the hospital setting in the future, which is certainly the aspiration reflected
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in the White Paper. Flexibility is desired to ensure that the scope of the NHS redress scheme can be more easily adjusted in the light of changes to NHS service provision. A supplementary memorandum was submitted to the Delegated Powers and Regulatory Reform Committee on 19 January, outlining the new powers proposed in these amendments. The committee has considered the government amendments and has not identified any matters that it wishes to draw to the attention of the House. The report is available to all Members in the Printed Paper Office.

I remain convinced that primary care should remain excluded from the scope of the scheme; that is why we object to Amendments Nos. 5 to 7. To put our objections on the record once more, it may be helpful if I deal with that now, by explaining why we did not include it in this amendment. As discussed in Committee, extending the Bill to include primary care wholesale would be problematic for a number of reasons. Primary care professionals cover their liability through private insurance arrangements, rather than NHS indemnity arrangements. Further consultation would be needed to develop a scheme that would effectively in primary care have the confidence of primary care professionals and insurers. The redress scheme has been costed only for NHS clinical work covered by the Clinical Negligence Scheme for Trusts. Following Committee, the cost of including primary care within the Bill has been modelled by departmental economists. Their modelling suggests that it would be up to an extra £56 million per year.

Amendment No. 4 therefore provides for primary medical services, primary dental services and general ophthalmic services to be specifically excluded from the new powers in Clause 1. That avoids the problems involved in extending the scheme to cover primary care wholesale. Because "primary medical services" and "primary dental services" are not defined terms for the purposes of the National Health Service Act 1977, Amendment No. 4 provides for the possibility of prescribing in regulations particular services that are or are not primary medical services or primary dental services for the purposes of Clause 1. The intention is to ensure a consistent approach when specifying services to be covered by the scheme. Where a certain service is generally provided in a hospital, but may on occasion be provided in an alternative setting—for example, a primary care facility—it is intended that this power could be used to enable the service to be covered by the scheme regardless of where it is provided. It remains our intention that the scheme will be reviewed three years after implementation with a view to considering whether to expand its scope to cover primary care, which would require further primary legislation.

Because "hospital" appears only in Clause 1, Amendment No. 9 takes the definition from Clause 18 and places it in Clause 1. It has no policy implications. Amendment No. 51 is a purely technical amendment, which prevents duplication of the interpretation by removing the reference to "hospital" from Clause 18. I beg to move.
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