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Lord Warner: My Lords, as I understand Amendment No. 27, it would place explicitly in the Bill the need for settlement agreements in respect of a child or incapacitated adult to be subject to the approval of a court of law. We believe that the amendments are unnecessary. Clause 6(2)(e) enables the scheme to make provision for settlement agreements under the scheme to be subject in cases of a specified description to approval by record. I reiterate what I said in Committee: it is our firm, stated intention that the scheme will specify that awards made to children and incapacitated adults will require approval by record to ensure that accepting the offer is in the patient's best interests.

We agree on that point with the noble Earl, but the amendment would remove the flexibility for the scheme to adapt to ensure that settlement agreements made in other circumstances could be made subject to court approval, should that be necessary in future, following further consultation with stakeholders. We do not object to the principle of cases relating to children and mentally incapacitated adults being subject to the approval of the court. We believe that the amendment would restrict the ability to send other types of cases to the courts, where that was deemed appropriate.

Earl Howe: My Lords, that was a helpful reply. I had not realised the unintended consequence of the amendment, which is an important one. I shall reflect further on the matter and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 [Suspension of limitation period]:

Lord Warner moved Amendment No. 28:


"(1) A scheme must make provision for the period during which a liability is the subject of proceedings under the scheme to be disregarded for the purposes of calculating whether any relevant limitation period has expired.
(1A) In subsection (1), the reference to any relevant limitation period is to any period of time for the bringing of civil proceedings in respect of the liability which is prescribed by or under the Limitation Act 1980 (c. 58) or any other enactment."

The noble Lord said: My Lords, in Committee, it was suggested that the drafting of Clause 7 was difficult to understand. Parliamentary counsel was invited to reconsider the drafting and a revised wording has been provided in the amendment. There is no policy change behind the amendment. It is simply intended to clarify the policy in the Bill. I hope that new subsection (1) now makes it clear that the clause requires the scheme to provide for the period of time during which a case is being dealt with under the scheme to be disregarded for the purposes of calculating whether any time limit for bringing court
 
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proceedings has expired. For limitation purposes, time ceases to run while a case is being considered under the redress scheme.

We accept that, when the redress scheme has been triggered, the processes will take time to complete. It is right, therefore, that patients' rights to pursue court proceedings are maintained while their case is being considered under the scheme. There should be no reduction in the time left available to them to bring court proceedings just because their case has been considered under the NHS redress scheme. Patients must not be put under pressure to complete proceedings under the scheme because of the existing time limits for bringing court proceedings.

Noble Lords may recall that Section 11 of the Limitation Act 1980 provides that court proceedings founded in tort for damages in respect of personal injury cannot generally be brought more than three years from the date on which the cause of action accrued—or, if later, the date on which the person became aware of the cause of action.

That provision will ensure that a patient is not prejudiced by or prevented from litigating as a result of waiting for the result of an investigation under the redress scheme—for example, where he or she is dissatisfied with an offer made under the scheme and therefore subsequently wants to bring court proceedings. It effectively stops the clock regarding any time limit for bringing court proceedings in respect of the same incident for as long as the case is being considered under the redress scheme.

It was also suggested that a specific amendment to the Limitation Act 1980 is required to ensure that the limitation period does not run while there are proceedings under the scheme. That has been considered, but we are satisfied that no such amendment is required. It is not necessary for the modification of the relevant time limits in the Limitation Act to appear in the Limitation Act itself. Although Part II of that Act contains a number of provisions extending or excluding the ordinary time limits, it is unnecessary for all such extensions and exclusions to appear there.

Clause 7 now clearly enables the scheme to affect the operation of the Limitation Act, enabling it to modify the limitation period in relation to liabilities that are the subject of proceedings under the redress scheme. New subsection (1A) makes explicit that the scheme can amend the Limitation Act, as there is now express reference to the Act. Under existing subsection (2), which remains unaltered by the amendment, the scheme may define when a case is considered to be the subject of proceedings under the scheme, so that it is absolutely clear when the clock stops running for the purposes of calculating the period of time to be disregarded. I beg to move.

Baroness Barker: My Lords, I believe that it was Members on these Benches who made the point about lack of clarity in the original wording of Clause 7. The government amendment makes the matter somewhat clearer, and I am grateful for the Minister's
 
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explanation of the Limitation Act 1980. It may not be quite as clear as one would have liked, but I imagine from what he has said that it will be made clearer in plain user language when the guidance is published. So I thank him for his clarification.

On Question, amendment agreed to.

Clause 8 [Legal advice etc.]:

Lord Warner moved Amendments Nos. 29 to 31:

On Question, amendments agreed to.

Lord Warner moved Amendment No. 32:


"(1A) A scheme must make such provision as the Secretary of State considers appropriate in order to secure that individuals to whom an offer under the scheme is made have access to legal advice without charge in relation to—
(a) the offer, and
(b) any settlement agreement."

On Question, amendment agreed to.

[Amendment No. 33, as an amendment to Amendment No. 32, not moved.]

Lord Warner moved Amendment No. 34:

On Question, amendment agreed to.

Earl Howe moved Amendment No. 35:

The noble Earl said: My Lords, my purpose in tabling this amendment is not to baffle the Minister but to flag up a matter which we debated briefly in Grand Committee; namely, who, or which body, will hold the list of solicitors authorised under the redress scheme to provide legal advice? In Grand Committee, the Minister indicated the Government's intention to entrust this role to the Legal Services Commission because this was the best way, in his view, of guaranteeing to patients that they would receive advice and services of an appropriate standard.

I feel that I must challenge that rationale. The LSC is, of course, a highly respectable non-departmental public body. However, its role is not to accredit solicitors who have experience in the clinical negligence field. In fact, it can hardly be said to accredit solicitors in any sense at all other than by reference to their employment and management procedures and to their experience in legal aid. The list held by the Legal Services Commission is in fact a list of practitioners who hold a legal aid franchise. That list is rather different from the list that I think most of us want, which is a list of clinical negligence specialists. Not all clinical negligence specialists have a franchise with the Legal Services Commission. If the Government follow through their intention to give the
 
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LSC this responsibility, they will be doing one thing—restricting unnecessarily the pool of available solicitors qualified in the field. That, I suggest, would be a retrograde step.

I mentioned in Grand Committee that currently there are two recognised lists of clinical negligence lawyers: one is held by the Law Society; the other by AvMA—Action against Medical Accidents. What is wrong with the idea of entrusting these two bodies with the joint responsibility of holding the list? I beg to move.


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