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The noble and learned Lord said: I have already outlined the circumstances in which the exemption provided by Clause 6 is extended to non-NHS providers of ambulance and transport services when responding to emergency circumstances. In brief, where a relevant trust has arranged for another body to carry out an emergency response on its behalf, we do not think that criminal liability should attach to one body but not the other. To allow that might risk reducing the availability of such alternative forms of transport to NHS trusts, which would not ultimately be in the public interest.

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The three technical government amendments in the group will ensure that the range of potential commissioners of ambulance and transport services to act in lieu of NHS providers is complete.

Amendment No. 62 adds the Secretary of State and the Welsh Ministers to the range of potential commissioners of these services. Under Section 23(1) of the National Health Service Act 1977, the Secretary of State can arrange with any person or body for them to provide, or assist in providing, any service in that Act. A similar provision is made for Welsh Ministers under Section 10 of the National Health Service (Wales) Act 2006. It would be rare for ambulance or transport services to be commissioned in this way, but if they were, they would be in a position comparable with the services provided or commissioned directly by an NHS body and so should be covered by the same exemption.

Amendment No. 70 corrects the omission of strategic health authorities from the definition of a “relevant NHS body”. These authorities, established under Section 8 of the National Health Service Act 1977, do not provide ambulance services directly, but they have the power to commission ambulance and transport services. They should therefore be treated in the same way as the other relevant NHS bodies. The amendment also restructures the paragraphs so that bodies in England and Wales are treated separately, and makes some alterations to the order in which bodies are listed.

I regret the errors in earlier drafts of Amendments Nos. 62 and 70, which did not list Welsh bodies correctly. In particular, we omitted a reference to Welsh Ministers and included a reference to health authorities in Wales that have now been abolished. I do hope this did not cause noble Lords any confusion. I beg to move.

Lord Henley: I start by offering my congratulations to the noble and learned Lord, who is speaking on behalf of the Home Office, on revising the government amendments tabled to correct the references to Welsh Ministers and Welsh health authorities that have been abolished. After all those

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years of devolution, it is a matter for congratulation that the department should have caught up with those points.

As I understand it, the amendments are consistent with the Bill and seem to make some sense. However, they still give rise to the question whether a complete exemption, applying to the grossest negligence imaginable, is really acceptable. Is it simply that the noble and learned Lord and his officials have spotted yet another loophole in their drafting, and that that is what they are trying to put right?

The Earl of Mar and Kellie: This is a United Kingdom Bill and, as we have heard, the amendments talk about England and Wales. Why do they not extend to Scotland or Northern Ireland?

Lord Davidson of Glen Clova: We have no amendments concerning Scotland and Northern Ireland because the Bill as it stands is correct in relation to those jurisdictions.

With leave, I shall respond to the points raised by the noble Lord, Lord Henley. It is simply a matter of having identified the omission of a reference to the Welsh Ministers and a reference to health authorities in Wales. There is nothing particular beyond that error having been identified, an error which, as I say, is regretted.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendment No. 63:

On Question, amendment agreed to.

Lord Henley moved Amendment No. 64:

The noble Lord said: In moving Amendment No. 64 I shall speak also to Amendment No. 69. Yet again, these are amendments tabled to discover what the Government intended in bringing forward amendments on Report in another place. I understand that those amendments were added after the debate in Committee on the emergency services provisions in the Bill and it is unfortunate that again the Government did not give themselves enough time to explain the considerable redrafting of the clause.

The amendments have, I believe, improved the clause by identifying where exemptions do and do not apply and I am pleased that the Government have taken on board the comments of my honourable friend in another place, the shadow Attorney-General, Mr Dominic Grieve, who pointed out the potential for confusion within hospitals in both accident and emergency departments and treatment departments. All I seek in moving the amendment is to have an assurance from the Minister that there will not now be such confusion. I beg to move.

Lord Davidson of Glen Clova: The amendments in this group seek to undo changes made by the Government to Clause 6 in response to concerns expressed in another place about the potential width

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of the emergency services exemption. Once again I welcome the opportunity to explain why those changes were made.

During debate in the other place, we were persuaded that there was a risk that the exemption as initially drafted could be interpreted to extend to NHS bodies in a very wide range of circumstances, such as when treating a patient with a life-threatening illness. That is not what we intended. Hospitals can be prosecuted for corporate manslaughter under existing law and we see no reason to remove that liability. We therefore amended Clause 6 so that it places tight restrictions on the sorts of treatment decisions that can be covered by the exemption.

The first limb of Clause 6(3) makes it clear that the emergency services exemption does not extend to medical treatment. So, for example, if a paramedic fatally administered the wrong drug to a patient at the scene of an accident and this error was attributable to gross management failures within the NHS trust in the training of paramedics, that situation would be covered by the offence. In fact, that was always our intention. We did not think that the management of an emergency included fatal errors in treatment, but we were persuaded that there was some doubt about that and that there was a potential loophole which could bring in a wide range of treatment decisions.

The second limb of Clause 6(3) makes clear that decisions about carrying out medical treatment, with the sole exception of prioritisation decisions in an emergency, are also covered by the exemption. That seems to us to have the right effect. One of the key ways in which NHS personnel respond to an emergency is by prioritising their responses to patients according to many factors, including the number of casualties, the nature and degree of each patient’s injury, the likelihood of survival and the number of personnel available on the scene. Those decisions should be exempt, but treatment decisions would not otherwise be covered by the exemption.

We have already debated the noble Lord’s approach to solving this problem. The reason that I think our approach is preferable is that it is much clearer where the limits of the exemption lie. It avoids the need to apply the exemption according to the location of the treatment, which could lead to some arbitrary results, and instead makes it clear that prioritisation decisions made in an emergency should be exempt, but that all other medical treatment decisions should be covered by the offence wherever they take place. I hope that, in the light of that explanation, the noble Lord may be inclined to withdraw his amendment.

Lord Henley: I am grateful to the noble and learned Lord for that explanation and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 65 to 69 not moved.]

Lord Bassam of Brighton moved Amendment No. 70:



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“( ) a Strategic Health Authority, Primary Care Trust, NHS trust, Special Health Authority or NHS foundation trust in England; ( ) a Local Health Board, NHS trust or Special Health Authority in Wales;”

On Question, amendment agreed to.

[Amendment No. 71 not moved.]

Clause 6, as amended, agreed to.

Clause 7 [Child-protection and probation functions]:

Lord Cotter moved Amendment No. 72:

(a) it is established that a local authority or other public authority owed a relevant duty of care to a person, (b) the duty of care does not fall within section 2(1)(a) or (b) and is owed in respect of the exercise by it of functions conferred by or under— (i) the Children Act 1989 (c. 41), (ii) Part 2 of the Children (Scotland) Act 1995 (c. 36), or (iii) the Children (Northern Ireland) Order 1995 (S.I. 1995/775 (N.I. 2)), so far as relating to the protection of children from harm, and (c) it falls to the jury to decide whether there was a gross breach of the duty of care. (a) other relevant duties to which the organisation was subject, including statutory duties and duties of care under the law of negligence, (b) resource constraints, and (c) public interest considerations.”

The noble Lord said: In moving Amendment No. 72, I should like to speak also to Amendment No. 76. Amendment No. 72 would remove the blanket exemption for local authorities and other public authorities whose gross negligence in the care of children leads to a child’s death. The intention of the amendment is to replace the exemption with a requirement for a jury to consider the conflicting considerations which an organisation has to consider if it is under resource constraints. The reason that these amendments are so important is because we are addressing real concerns that are felt strongly by the public, based as they are on some distressing events. I feel that we are speaking up for the public here, as we must.

Specifically, the immunity for child protection afforded in Clause 7 covers deaths arising from gross negligence in the performance of functions to protect children from harm. In particular, the case of Victoria Climbié, which was mentioned at Second Reading, illustrates the kind of situation in which a prosecution would be appropriate, but which would be prevented by Clause 7 as drafted. In the year 2000, Victoria Climbié was tortured to death by her great aunt. When Victoria died, she had 128 separate injuries on her body, which included cigarette burns, scars where she had been hit with a bike chain and hammer blows

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to her toes. She was also forced to sleep in a bin-liner in the bath at the home in Tottenham. Victoria was seen by dozens of social workers, nurses, doctors and police officers before she died, but all failed to spot and stop the abuse as she was slowly tortured to death.

The public inquiry into the case headed by the noble Lord, Lord Laming, concluded that the failings by the agencies involved were a disgrace. As I read the results at the time, one social worker had the blame very much apportioned to her, but five senior managers either kept their jobs, were promoted or went on to other positions. Our amendment acknowledges that those charged with responsibility for the care of children are often faced with very difficult situations, so it is not intended to prosecute individuals who, with the benefit of hindsight, may have reached the wrong conclusion with the result that a child dies. It would, however, make it possible for a jury to convict an organisation where it has been shown that its conduct has fallen far below what could reasonably be expected in the particular context.

Making that determination will require the jury to take account of the specific circumstances, issues and dilemmas faced by the organisation. There are many other examples. We have a grave duty to respond to tremendous public dismay, distress and disbelief that such events as I have described and others could occur in our society. Referring to that particular incident, although there are many others, I beg to move.

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Lord Henley: I do not intend to say much on the amendment, other than to offer my congratulations to the noble Lord, Lord Cotter, on moving it so well and setting out the arguments for it, especially following the Victoria Climbié case and what happened afterwards in the local authority concerned. At this stage, I do not know what arguments the noble Lord, Lord Bassam, will put forward. I have a sneaking suspicion that at the top of his briefing note—we all remember how they used to be drafted—is the word “resist” to remind him that that is what he must do. I will certainly be fascinated to hear what arguments he put forward in response to the noble Lord and it may be best if we heard from him at this stage.

Lord Bassam of Brighton: I am grateful to the noble Lord, Lord Cotter, for his comments, which I am sure were heartfelt. They take us back to the difficult question of when government and public bodies should be accountable in the criminal courts for the way in which they carry out their activities.

Perhaps I should declare a sort of past interest. I trained as a social worker and worked as a social worker for a short while. During my time working for the local authority, we had to deal with cases that were not as appalling as the Climbié case, but we had to make difficult choices and faced dilemmas with which social workers struggle at all times to try to

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reconcile in order to fulfil their duty of care to those entrusted to the care of the local authority. So I have some appreciation of the difficulties involved in that case and in caring for children in the local authority context.

Clause 7 deals with the exercise of two challenging public functions: child protection and probation. Those functions are clearly different but they are linked in so far as they relate to the protection of the public from harm. The noble Lords, Lord Lee and Lord Razzall, tabled an amendment to which the noble Lord, Lord Cotter, spoke, which seeks to remove the limited exemption given to organisations carrying out those functions and bring them within the offence, subject to a number of considerations. Before turning to that amendment, I would first like to say something about why we think that the exemptions are required.

Clause 7 makes it clear that the exercise of a limited range of statutory functions is not covered by the offence. That does not affect the liability of local authorities or probation boards to provide safe systems of work for their employees; nor does it affect their responsibilities as occupiers of premises. Rather, the exemption is tightly drawn to focus specifically on the arrangements for discharging a limited range of particular public functions.

Let us first consider those relating to child protection. I understand that in another place, the limb of the clause dealing with child protection was considered in some detail. It was suggested by honourable Members in the Opposition that a distinction might be drawn between decisions about taking a child into care, which ought to be exempt, and the provision of services to children, which ought to be covered by the offence.

We thought that there was merit in that suggestion and so tightened the child protection limb of the exemption so that it is now limited to a small number of statutory functions relating to decisions made to safeguard the welfare of children, carried out under Parts 4 and 5 of the Children Act 1989.

Part 4 of the 1989 Act concerns care and supervision orders. Such orders can be made by a court only if it is satisfied that the child concerned is suffering or is likely to suffer significant harm. The court must then place a child under the care or supervision of a local authority. Part 5 concerns, among other things, the powers of public authorities—local authorities and the police—to remove a child from their home in case of emergency.

Clause 7 makes it clear that those functions are not covered by the offence, but there is in fact uncertainty as to whether a duty of care would exist in those situations in the first instance. The courts have had real difficulty deciding the duties of care owed by local authorities in respect of child welfare decisions. They have found that it may well be inappropriate to subject a local authority to a duty of care in respect of decisions relating to taking children into care.

To that extent, Clause 7 merely clarifies that the offence will not apply, rather than providing for a substantive exemption where the offence would otherwise have effect. That reflects the position of a

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number of the clauses dealing with the public services in that they operate in circumstances where duties of care are frequently not owed and their main function is therefore to provide clarity and draw bright lines around the scope of the offence.

Local authority functions in relation to children are not otherwise exempt from the offence, except where those are matters of public policy or exclusively public functions covered by the general exemption in Clause 3. The effect of that is that where a child is in the care of, or is receiving services from, a local authority, that local authority has a special responsibility to ensure that its services and those providing them do not harm the child or its family. It is not our intention to create barriers to criminal prosecution if serious management failures in the provision of services directly cause a child’s death. It is our view that Clause 7 achieves that. Having listened to the noble Lord, Lord Cotter, I think that that was part of what he was seeking.

I turn to probation. The exemption for the Probation Service covers three areas of activity: the monitoring of compliance with community orders; the supervision of people released from prison on licence; and the provision of accommodation in approved premises. As has been said, the clause extends no exemption to responsibilities owed to employees or in respect of the occupation of premises. It therefore only affects any wider duties owed in respect of those in approved accommodation. In all those areas, the Probation Service is managing very challenging public relationships. The emphasis is on protecting the public and the management of risk. As with the other public services, this involves the difficult balancing of many diverse interests. When the service gets things wrong, there should be a thorough and open investigation and the service should learn from those mistakes. But we think that criminal prosecution is not an appropriate way of achieving that highly proper and laudable objective.

High-profile cases have involved offences, including murder, committed by offenders under the supervision of probation services. By its nature, the Probation Service deals with some very high risk—potentially very dangerous—offenders. The service has a responsibility to protect the public from those offenders, but we do not think that it should itself be criminally liable for their actions. That would place a heavy onus on the Probation Service and potentially distort the very difficult decisions that it must take. The Probation Service is in any case unlikely to owe a duty of care to the victim of an offender’s action. To that extent, as with the child protection exemption, an important part of the provision is to give clarity to the probation services, so that they are in no doubt about where criminal liabilities lie.

I have explained the Government’s thinking behind the exemptions. I turn now to the amendments which seek to remove the exemptions for child protection and probation services. They would make the organisations currently covered by this exemption liable for the offence where they owe a duty of care, subject to a number of considerations such as the existence of other duties, resource constraints and

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public interest. We discussed a very similar amendment in relation to the emergency services exemption, and the noble and learned Lord, Lord Davidson, explained very clearly the context for preferring the drafting in the Bill, which we think should also apply here.


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