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Earl Howe moved Amendment No. 42:


"PATIENT REDRESS INVESTIGATORS
(1) The Secretary of State shall by order make provision for the appointment of suitably qualified patient redress investigators who shall have conduct of the investigation of the facts of cases in accordance with section 6(2)(a).
(2) A patient redress investigator shall—
(a) conduct the investigation of the facts of a case in accordance with the rules of natural justice; and
(b) produce a report on the principal findings of his investigation and on any lessons to be learnt in accordance with section 10(2)(h).
(3) A report produced under subsection (2) may provide the basis for the giving of any explanation in accordance with section 3(2)(b) and any assessment of liability in tort in accordance with section 6(2)(b).
(4) The Secretary of State shall by order set out the procedures for the investigation of cases in accordance with section 6(2)(a), prescribing such duties and conferring such powers on patient redress investigators as he may consider appropriate for the effective discharge of their functions.
(5) The Commission for Health Audit and Inspection shall maintain and publish a list of patient redress investigators, and shall have responsibility for overseeing the carrying out of the functions of such investigators."

The noble Earl said: My Lords, I spoke to this amendment earlier with Amendment No. 22, which the House agreed to. I mentioned then that there was a mistake in proposed subsection (5), which should refer to the Commission for Healthcare Audit and Inspection and not to what is printed. Subject to that small alteration, I beg to move.

On Question, amendment agreed to.

Clause 12 [Disclosure to scheme authority]:

Baroness Royall of Blaisdon moved Amendment No. 43:

Leave out Clause 12.

The noble Baroness said: My Lords, Clause 12(1) disapplies the common law duties of confidentiality in relation to the disclosure of information required by the scheme to the scheme authority. On further reflection, we now consider that unnecessary.
 
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Since Committee, officials have discussed disclosure in more detail with the NHSLA, which handles the clinical negligence scheme for trusts. We now consider that, under the redress scheme, it is right for patient consent to be sought before any information covered by the common law duties of confidentiality is disclosed to the scheme authority. Where a patient refuses to give consent, it may not be possible to proceed with the case. It is intended that that will be made clear to patients when the initial request to disclose information to the scheme authority is made. Subsection (1) of Clause 12, which Amendment No. 43 deletes, is therefore unnecessary.

Amendment No. 43 also deletes subsection (2). Following further discussions with the Department for Constitutional Affairs, we are now of the opinion that Clause 12(2) duplicates the provisions of the Data Protection Act 1998. Subsection (2) provides that a person may not be required to disclose information to the scheme authority in relation to which he is under a duty of non-disclosure under the Data Protection Act. We consider the clause unnecessary and believe it should be omitted. The duties of non-disclosure under the Data Protection Act will apply in any event. I beg to move.

On Question, amendment agreed to.

Clause 14 [Complaints]:

Baroness Royall of Blaisdon moved Amendment No. 44:

The noble Baroness said: My Lords, in Committee noble Lords raised concerns that no explicit provision was made for misdirected complaints to be appropriately redirected by either the scheme member or the scheme authority.

Many patients find the complaints processes relating to their NHS care difficult to understand and to navigate. Often, the complaint is initially directed to their healthcare provider. Patients and carers involved with the NHS redress scheme may, mistakenly, believe that all complaints, whether arising out of their care or out of the handling of their case under the redress scheme, should go to the scheme member or the scheme authority. However, that may not always be appropriate. We therefore understand that, through no fault of the complainant, confusion may arise.

7.00 pm

Amendment Nos. 44 to 47 together introduce a power to put in place arrangements to ensure that complaints made under the redress scheme complaints procedure, but raising matters that fall under another statutory complaints procedure, are referred directly to the appropriate body. To refer complaints in this manner is a matter of good practice. The amendments mean not only that patients using the scheme will not be responsible for finding the appropriate body to which to refer their complaint if it is misdirected through the redress scheme complaints procedure, but
 
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that their complaints will not be unnecessarily delayed. The possibility that some adjustment of the appropriate procedure may be necessary to allow complaints to be redirected, without the patient having to take action, has also been provided for.

The intention behind Amendment No. 48 is to ensure that personal data gathered under the redress scheme complaints procedure can be exempt from certain provisions of the Data Protection Act 1998—namely, the subject information provisions. This exemption will, in any case, apply only to the extent to which the application of those provisions would be likely to prejudice the proper discharge of the function of considering the complaint. The subject information provisions of the Data Protection Act allow for individuals, except in certain defined circumstances, to seek and obtain information held on them by others.

Section 31 of the Data Protection Act provides an exemption from these provisions by reference to a number of different categories of regulatory function. Section 31(6) exempts personal data processed for the purpose of considering a complaint, including complaints about healthcare under the Health and Social Care (Community Health and Standards) Act 2003. Amendment No. 48 therefore makes a scheme member or scheme authority considering a complaint under the redress scheme complaints procedure also exempt from the subject information provisions, to the extent to which applying those provisions would be likely to prejudice the proper discharge of their function of considering the complaint.

As already mentioned, under the existing NHS complaints procedure, personal data gathered for the purposes of considering a complaint may not be disclosed to the complainant to the extent to which this would prejudice the proper consideration of the complaint. For reasons of consistency, we believe that a similar exemption should apply to the redress scheme complaints procedure. I beg to move.

Baroness Barker: My Lords, I thank the noble Baroness, Lady Royall of Blaisdon, for her response on Amendments Nos. 44 and 45. I raised in Committee the point about complaints being directed from the redress scheme towards complaints schemes and about ensuring that the process by which that was done was fair to individuals. The noble Baroness gave a very technical presentation of the subject information provisions of the Data Protection Act. It would be grossly unfair to ask her, without notice, to explain exactly what she means, but subject information provisions are extremely important, particularly in relation to health and social care information. I would therefore very much welcome it if she would write to me to explain precisely what the provisions are. I believe that the noble Baroness is talking about information on a person that may refer to other individuals. I ask her to write to me in some detail about that before the Bill reaches the next stage.

Baroness Royall of Blaisdon: My Lords, I will write in detail, with pleasure.
 
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On Question, amendment agreed to.

Baroness Royall of Blaisdon moved Amendments Nos. 45 to 48:


"(8) The regulations may, in relation to complaints in connection with a scheme which are made or purport to be made under the regulations, make provision for securing—
(a) that any matters raised in such complaints which fall to be considered under other statutory complaints procedures are referred to the body or other person operating the appropriate procedures;
(b) that any such matters are treated as if they had been raised in a complaint made under the appropriate procedures.
(9) In subsections (7) and (8), "statutory complaints procedures" means complaints procedures established by or under any enactment."
Page 7, line 18, at end insert—
"(10) In section 31(6) of the Data Protection Act 1998 (c. 29) (exemption from subject information provisions for personal data processed for purposes of certain complaints procedures), after "complaint under" insert "section 14 of the NHS Redress Act 2006,"."

On Question, amendments agreed to.


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