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Baroness Barker: My Lords, I shall speak to Amendments Nos. 5 to 7. In Grand Committee, my noble friend Lady Neuberger and I listened very carefully to what the Minister had to say on which services would or would not be covered by this legislation. I have also studied with great care the Minister's letter dated 18 January, in which he sets out in detail the arguments that he has just put on why "hospital" is not narrowly defined. However, as the Minister said, it is right that in the mean time we have had the White Paper—all 267 pages of it—which sets out how and when services will be transferred from their hospital settings into community settings.

Noble Lords have listened to various Ministers talking about all sorts of proposals, including the suggestion that consultants be placed in GP practices and the development of practices with special interests. They may even know that there is a unit within the Department of Health which is working specifically on the transfer of NHS staff into other settings and, I believe, is attending to matters such as what happens to staff who are TUPE-ed from the NHS to other organisations.

All that suggests the rapid transfer of services which are currently provided within general hospital settings to other places. Therefore, during the next three years, or however long it will be before this scheme is implemented and reviewed, how will people know whether the services which they have received in a primary care setting which have been adverse are within the scope of this redress scheme or not?

Why is the scheme such a threat to primary care services? We are talking now not just about GPs, who have their own insurance schemes to which they have to subscribe. Why is it not in their interests as primary care employees and practitioners to have this scheme, the basis of which is to avoid costly and lengthy litigation? It is a phrase that we have not heard for a very long time from the Benches opposite, but the Government were once committed to joined-up government. This seems to be its very opposite. Nothing that the Minister said, either in his explanation of the government amendment or in his letter, has shed any light on which services will or will not be covered by the scheme. He talked about services which are normally provided in a hospital setting but may occasionally be transferred to a community setting. Where, for example, will podiatry services for people with diabetes be—a service which is at the moment carried out within a general hospital setting but which is very rapidly likely to be transferred to community services? Will it be covered or not? I do not think that the Minister has come up with a convincing answer yet as to why there should be such a widespread exemption.

4 pm

Lord Warner: My Lords, I take that as an invitation to have another go. As I said in my letter and in my opening remarks, I acknowledged that we could not be absolutely certain precisely which and at what time services would be taken out of a normal hospital setting and made available in a community setting. A
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good example of this is emergency care practitioners in ambulance services. Different ambulance services at the moment have different ranges of emergency care practitioners doing different duties. The location from which forms of healthcare are delivered is changing quite rapidly, not just in this country but in all countries. In the White Paper, for example, there are six projects in particular specialties—urology is one, ENT is another—where we will look for new clinical pathways for people. We will work with the professions to gauge the safety and feasibility of taking more of the work in these specialties traditionally done in a hospital into a community setting.

Given that we know the direction of travel, we think it sensible in this Bill to take provisions to put in secondary legislation, and to communicate to patients which services are to be covered by the scheme. I tried to explain clearly—both in Committee and today—why we did not extend this scheme to primary care. At the moment this scheme is intended to cover hospital-type care only. Primary care would be excluded from the scope of the scheme. Costing of the scheme was made on that basis. I gave in my speech the extra costing of extending this Bill to primary care, even if we could speedily do it. On the estimates available to me, they are of the order of £56 million. However, we have the complexity caused by the fact that GPs and other primary care practitioners have a totally different professional indemnity system from the NHS hospital indemnity system. We cannot simply translate that system into the terms of this Bill. To do that, it would need to be looked at again and there would need to be wide consultations with the primary care interests.

In the mean time, we do not want to hold up the Bill until all those consultations in the primary care field have been completed. We do not know where they will take us, so in our view it is better to get on with the redress scheme being provided by the Bill, but to make it flexible enough to deal with a range of services that we know are likely to end up being provided outside the hospital setting in the coming years.

On Question, amendment agreed to.

Lord Warner moved Amendment No. 3:

On Question, amendment agreed to.

Lord Warner moved Amendment No. 4:

"(4A) For the purposes of subsection (2), services are qualifying services if—
(a) they are provided in a hospital (in England or elsewhere), or
(b) they are of such other description (including a description involving provision outside England) as the Secretary of State may specify by regulations.
(4B) Regulations under subsection (4A)(b) may not specify services of any of the following descriptions—
(a) primary dental services,
(b) primary medical services,
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(c) services provided under section 38 of the National Health Service Act 1977 (c. 49) (general ophthalmic services),
(d) services provided under section 41 of that Act (arrangements for pharmaceutical services) or by virtue of section 41A of that Act (arrangements for additional pharmaceutical services), and
(e) services of a kind which may be provided under section 41 of that Act, or by virtue of section 41A of that Act, which are provided under Schedule 8A to that Act (local pharmaceutical services schemes) or section 28 of the Health and Social Care Act 2001 (c. 15) (local pharmaceutical services pilot schemes).
(4C) The references in subsection (4B) to primary dental services and primary medical services are to primary dental services and primary medical services under Part 1 of the National Health Service Act 1977 (c. 49), except that the Secretary of State may by regulations provide that services of a description specified in the regulations are not to be regarded as primary dental services or primary medical services for the purposes of that subsection.
(4D) Regulations under subsection (4A)(b) or (4C) may, in particular, describe services by reference to the manner or circumstances in which they are provided."

[Amendments Nos. 5 to 7, as amendments to Amendment No. 4, not moved.]

On Question, Amendment No. 4 agreed to.

Lord Warner moved Amendments Nos. 8 and 9:

"( ) In this section, "hospital" has the same meaning as in the National Health Service Act 1977 (c. 49)."

On Question, amendments agreed to.

Clause 3 [Redress under scheme]:

Lord Warner moved Amendment No. 10:

The noble Lord said: My Lords, concerns were raised in Committee that the Bill does not mention explicitly the making of an apology as obligatory under the scheme. In Clause 3(2), it currently provides that the scheme must provide for,

I offered to reconsider the drafting here.

A 2002 MORI survey commissioned for Making Amends found that the main response wanted by 34 per cent of people affected by medical injury was an apology or explanation. In that light and from the points made by noble Lords in Committee, I consider it appropriate to provide in the Bill that in cases to which the scheme applies, it must provide for the giving of an apology in addition to the giving of an explanation and the making of an offer of compensation. Amendments Nos. 11 and 13 bring this into effect.

Amendment No. 10 inserts the words "redress ordinarily to comprise" into Clause 3(2), while Amendment No. 14 removes the words "except in specified circumstances" and replaces them with,

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I hope that this makes what we intend clear: that all three forms of redress will usually be required to be offered. This is the expectation. There may be exceptions, but ordinarily an apology, an explanation and compensation will be provided. I hope that this meets the previously expressed concerns of noble Lords over how often exceptions would occur.

It is intended that the power provided by Amendment No. 14 to specify circumstances in which one or more forms of redress are not required will be used sparingly. However, there will be cases in which it may be appropriate to make use of the power. It is intended that the cases in which exceptions may be appropriate will be set out in secondary legislation on the scheme following full consultation with stakeholders. For example, there may be cases in which the patient makes it clear that they do not wish to receive financial compensation. As the noble Earl, Lord Howe, pointed out in Committee, it may be inappropriate to make offers of compensation in such circumstances. On other occasions it may be wrong to offer an explanation—for example, in cases where someone is going through the redress scheme following the death of a relative. There may be issues of clinical confidentiality about which the patient's relative is unaware and which it may be inappropriate to divulge. There are a number of these possible exceptional circumstances for which we have tried to provide and which we will specify in secondary legislation. I beg to move.

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