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Earl Howe: My Lords, the Minister is very kind and I thank him for his reply. I should make clear that I have no quarrel with the concept of what one might call an indicative limit. We all agree that the lower value cases should fall within the ambit of this scheme. But the existence of a strictly enforced ceiling will prove a barrier to access to justice for many people. You can easily imagine that, at the start of an investigation, the NHSLA and indeed the patient will believe that the claim falls squarely within the financial ceiling laid down. As the investigation proceeds, however, it may become apparent that the claim is in fact worth rather more than £20,000. If it is going to be worth only a little bit more than £20,000, then it would
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seem perverse to abandon the process altogether when, without much extra work, an offer could quite easily be made.

I note what the Minister said about the clinical negligence scheme for trusts. That may prove a satisfactory safety valve for the type of cases that I have outlined. In the end, however, we come down to the "suck it and see" approach that the noble Lord outlined towards the end of his reply. It remains to be seen how this scheme will operate in practice. I have indicated that a bit of flexibility at the outset would not be amiss, but the Government have resisted that view. I can do no more than to sound a warning and, like the Minister, hope that I am wrong. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Warner moved Amendment No. 16:

"(5) A scheme that provides for financial compensation to be offered—
(a) may specify an upper limit on the amount of financial compensation that may be included in an offer under the scheme;
(b) if it does not specify a limit under paragraph (a), must specify an upper limit on the amount of financial compensation that may be included in such an offer in respect of pain and suffering;
(c) may not specify any other limit on what may be included in such an offer by way of financial compensation."

On Question, amendment agreed to.

[Amendment No. 17 not moved.]

Clause 4 [Commencement of proceedings under scheme]:

Baroness Barker moved Amendment No. 18:

"( ) The only relevant circumstance in which proceedings cannot be commenced is when an injury has been sustained and where an offer under the scheme in respect of the same injury has previously been rejected."

The noble Baroness said: My Lords, in this group of amendments—and, indeed, the next—we return to issues on which my noble friends Lady Neuberger and Lady Tonge and I probed the Government in Grand Committee. They all seek clarity about who may commence proceedings under the scheme, and how that might be done.

I return to these matters because, while the Minister set out his response in a letter with some clarity, he has not sought to make the Bill itself any clearer. Most of the people who, unfortunately for them, have to commence proceedings will not see the Minister's letter, but they will see the Bill. I am a great believer in having information in the right place, so that it is easily accessible.

Amendment No. 18 seeks to make clear that this is not an unending process, and that it should be known that redress can be only a one-time act—it is not something to which they can return on the same matter.
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Amendment No. 20 makes provision for commencement of a scheme by a member if asked to do so by an individual. In his letter of 20 December 2005 to me and the noble Earl, Lord Howe, the Minister said:

I would like to take the opportunity to invite the Minister to make that clear in the Bill, where his intentions will be paid a great deal more heed. In doing so, it would not—as the Minister goes on to suggest in his letter—give the impression that it is only an application-based scheme. That was one of his reasons for not doing so before.

The amendments that we discussed previously about openness and the need for reporting in no way undermined what the Minister spoke about at great length, with which we agree. That is that the measure should bring about a change of culture within the NHS. It should be something that NHS staff and organisations feel free to initiate for the benefit of patients. I do not believe that stating in the Bill that an individual may trigger the scheme in any way undermines that.

Finally, Amendment No. 21 seeks to deal with an issue that has been raised again by the Law Society. In his letter to me and the noble Earl, Lord Howe, the noble Lord said that he did not wish to have such a provision because he thought that limiting the power to bring proceedings under the scheme to the individual who had been harmed would be too narrowing. I understand why he wishes to do that, but this amendment is here to seek from the Government a response to a slightly different but related matter, which is how it would be possible to prevent an individual, who is not the individual who has directly been harmed, from deciding that a case should go through the redress scheme—rather than by any of the other avenues that may be open, such as litigation—and thereby making the individual take an easy and quick route that may not be most beneficial to them. That is the loophole that the amendment is seeking to probe. In the Minister's full letter to us he did not address that matter, which is why I tabled the amendment. I beg to move.

Lord Warner: My Lords, I listened carefully to the noble Baroness's advocacy of the three amendments. I am afraid that we oppose Amendment No. 18 on the grounds that it may be appropriate to provide for other circumstances in which proceedings under the scheme may not be commenced. The amendment would remove any flexibility. The only circumstances in which proceedings could not be commenced would be where an offer had previously been rejected. There may be other circumstances in which it may be appropriate that proceedings may not be commenced; for example, when it is obvious from the outset that a case would fall well over the financial limit for compensation under the scheme. Another example might be where an offer under the scheme in respect of the same injury had already been accepted.
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We intend to consult stakeholders further when drawing up the secondary legislation, and we will consult about the circumstances in which proceedings may not be commenced. We would wish to retain flexibility to make appropriate provision for other such circumstances following those discussions. When the scheme is first established, the regulation and scheme will be subject to affirmative resolution procedure and there will be an opportunity for full parliamentary scrutiny of the use of the power.

4.45 pm

Amendment No. 20, in contrast, seeks to place a provision in the Bill that proceedings must be commenced where the patient wishes to seek redress under the scheme. The Bill has powers which will enable the scheme to specify who can commence proceedings. It is our firm intention that individuals will be able to apply to the scheme directly. The details of who may make applications will be covered in the scheme itself, so will be part of the secondary legislation on which we shall again consult stakeholders.

However, we intend that patients will be able to apply directly to the scheme. Where an application is made, it is intended that the scheme will require the relevant scheme member to investigate and to send the case to the scheme authority for a decision on eligibility. Where a case is eligible under the scheme, the scheme member will then make an appropriate offer of redress, but it will be appropriate only where the case falls within the scheme. There may be a small number of cases in which it may be appropriate for proceedings not to be commenced. For example, where it is clear, again at the outset, that the case would far exceed the financial limit of the scheme, it may be appropriate for the case to be referred directly to the clinical negligence scheme for trusts to avoid delay.

The noble Baroness raised points on Amendment No. 21. In our opinion, this amendment overlooks an important aim of the scheme. Scheme members should identify cases that potentially fall within the scheme and activate the scheme without waiting for the patient to approach them. It is intended that the scheme will bring about an active approach with scheme members taking steps to identify qualifying cases. However, Clause 4(2)(f) has powers to enable the scheme to provide for the notification of the commencement of proceedings. It is intended that, if the scheme is activated by a scheme member rather than by a patient, the scheme will provide that the scheme member should notify the patient that proceedings have been commenced. Patients in those circumstances would not be kept in the dark.

If the patient does not want his case to proceed, the powers in Clause 6(2)(f) enable the scheme to make provision about the termination of the proceedings. If the patient stated that he did not want his case to proceed, we intend that the scheme member will be required to terminate the proceedings.
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The answer to the noble Baroness's question is that the issue will be covered in secondary legislation. Those are our grounds for objecting to these amendments.

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