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As I said, we will expect the Chief Coroner to consult his or her non-statutory national medical adviser as well as the head of the medical examiner service, both throughout the year and when preparing the annual report. This is bound to happen given the national medical adviser’s role in supporting the Chief Coroner on the medical aspects of coroners’ cases, as well as in the training of coroners and officers on those issues. The consultation will enable the Chief Coroner to provide the Lord Chancellor with a pertinent report covering the key issues in the coroners’ system over the previous year. However, we believe that the precise nature of the consultation with the national medical adviser should be left to the discretion of the Chief Coroner.
I have no doubt that we will return to some of these matters in due course, but those are the Government’s observations on the amendments tabled for Committee. I should say to the noble Lord, Lord Walton, that when the GMC introduces licences and arrangements for revalidating medical practitioners, I understand there will be a requirement for medical examiners to be licensed as well as registered practitioners—that is, to have a licence to practise. I hope the amendment will be withdrawn.
Lord Walton of Detchant: The licence to practise is being introduced this year. All doctors will now be required, if they wish to indulge in clinical practice, to apply for a licence to practise. Despite my antiquity, I have applied for a licence to practise just in case my services may be required by any noble Lords in an emergency. Having said that, revalidation and the question of examining licensed doctors for their continuing suitability to practise will be gradually introduced over the next two or three years. It is important to recognise that the licence will be introduced this year.
Lord Alderdice: I am grateful to the Minister and indeed to other noble Lords for the responses and the arguments that have been adduced in the debate. I was, and continue to be, somewhat puzzled by the argument from the Government, which was used in the other place as well. They said there are lots of people who are helpful to the coroners and therefore there is no reason to single out medical examiners or to have a chief medical examiner or chief medical adviser. There is a whole section in the Bill on medical examiners, there is not a whole section in the Bill in respect of all sorts of other people that may be helpful to the coroner, and for a very good reason, because we are talking about medical certification of death. It seems
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Therefore I am very grateful indeed to the Minister for indicating that his mind is not entirely closed to the possibility that it might be in the Bill. I have no doubt that if it is possible for us to have some discussions outside the Committee we will attend to many of the inadequacies of framing which were rightly raised by the noble Lord, Lord Neill of Bladen, and the noble and learned Baroness, Lady Butler-Sloss. The importance of these amendments is to make the point about what needs to be done and it seems to me that has been made. I welcome the opportunity for further discussions, for without that there can be no question that something will come forward at a later stage and be pressed. This is a centrally important question for a whole series of reasons.
There is clearly a matter of substantial contention, and I and my colleagues share the view which has been put forward by a number of noble Lords, that a centralised service separate from PCTs provides a degree of independence—independence as perceived by the community, as the noble and learned Baroness, Lady Butler-Sloss, has said, but also independence in fact, because there is in that case much less likelihood of a conflict of interest. That is a serious matter should medical practitioners find themselves in that position, or in terms of how the community perceives it. There is a clearly a diversity of views in regard to this. The Government hold to their particular view and others, including us, hold to a different view as to what the service should be, so I have no doubt we will return to that matter as well.
With regard to the position of chief medical adviser or national medical adviser being filled by a forensic pathologist, I would not hold absolutely to that. However, I did find the Minister’s response less than reassuring that actually someone who had an interest in industrial diseases might be able to advise suitably on the whole range of things that a national medical examiner would be able to advise the Chief Coroner on. It does not seem to me that that is a very reassuring response, and whether or not the qualifications should be in the Bill, we will think further about that and return to it.
However on the question of appropriate standards, qualifications and courses, I hear what the Minister says about those being properly cited in the secondary legislation and we will study what the Minister said and return to that. With those remarks and that undertaking of further discussion on these important amendments and clauses, I beg leave to withdraw the amendment.
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Amendments 49 to 63A not moved.
63B: After Clause 19, insert the following new Clause—
“Indemnity for medical examiners and the Chief Medical Adviser to the Chief Coroner
The medical examiners and the Chief Medical Adviser to the Chief Coroner shall be indemnified by the Secretary of State in respect of—
(a) any costs which they reasonably incur in or in connection with proceedings in respect of anything done or omitted in the exercise (or purported exercise) of their duty;
(b) any costs which they reasonably incur in taking steps to dispute any claim which might be made in such proceedings;
(c) any damages awarded against them or costs ordered to be paid by them in any such proceedings; and
(d) any sums payable by them in connection with a reasonable settlement on any such proceedings or claim.”
Baroness Finlay of Llandaff: I am most grateful to the Minister for his comments in his summing up on the previous group of amendments. This amendment is pertinent to the creation of what I believe we might be now calling a national medical adviser, if we do get to that point. The need to have work indemnity has become more important within our society. I will let my noble and learned friend Lady Butler-Sloss speak a little bit about indemnity of the coroners as she is leading on that amendment, but certainly for the medical examiners and for the chief medical adviser, indemnity will be particularly important, and it is something which needs to be clarified—it needs to be crystal clear.
In the Minister’s summing up on the previous group of amendments, he reminded the Committee that the coroner has no responsibility over natural death. In a way, that is exactly the problem, which is defining where the responsibility begins and ends. While a death may be unnatural, it is only after investigation that it is demonstrated to be natural, and similarly a death which is assumed to be unnatural may then during investigation be found to actually have had a natural cause.
It strikes me that within this system, and with the charter for the bereaved—which I do not dispute at all, and I think everyone welcomes and commends the Government on it—there will be increasing room for certainly complaint, if not more. At the moment, as I understand it, those working as medical examiners should be indemnified by their PCT if their PCT is their employing body, but that has not been explicitly clarified. We know that indemnity by the PCT for routine medical work is in fact inadequate. Doctors are advised to have their own medical defence cover over and above the indemnity provided by the PCT or the trust, because the indemnity does not cover very much, but it is essential that it is there from whoever
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The new clause for indemnity for medical examiners and for the chief medical adviser to the Chief Coroner is there specifically to clarify first that indemnity will be provided by the PCT for the medical examiners that are in the Bill, and secondly by whoever turns out to be the employer of the probable national medical adviser. So the title of this proposed new clause is wrong and would need to be amended anyway because there is more work to be done outside Committee in clarifying who does what. Similarly another amendment in this grouping relates to expenses and it is important to know who is responsible for paying expenses for those people when they incur expenses in the course of their work. I beg to move.
6 pm
Baroness Butler-Sloss: I support the principles behind the noble Baroness’s amendment. I shall speak also to Amendments 77ZA and 114A. As a former assistant deputy coroner in the Princess Diana inquest, I was judicially reviewed, successfully. My expenses were covered under Section 104 of the Access to Justice Act 1999, which inserted a new section into the Coroners Act 1988.
Coroners have shown me that there is nothing in the present Bill that replicates Section 104 of that Act, so Amendment 77ZA does just that. Its purpose is to replicate the existing indemnity enjoyed by coroners, who are extremely concerned, particularly with regard to judicial review, which is not all that unusual in the increasingly litigious age in which we live, and the possibility of some appeals outside the appellate process and on to either judicial review or the Court of Appeal. It is important that this should be in primary legislation. I doubt that it would be satisfactorily dealt with in subsidiary legislation, and currently there is nothing to show that coroners will actually be protected.
I am sure that the Minister knows, having been at the Bar, that judicial review is very expensive. I would have been extremely concerned if I had found myself having to face the costs, with four leaders in my particular review, of having lost in the Administrative Court. The loss was on the basis of incorrectly applying the law, as I was told, so this is a matter of law, not a matter of a coroner necessarily going wrong in the ordinary way of dealing with his duties as a coroner.
Amendment 114A would allow to the Chief Coroner and the deputy chief coroners exactly the same indemnity as coroners have at present—I hope that the Minister will see the appropriateness of coroners having it—in which case it would be necessary, for certain acts carried out by the Chief Coroner and deputy chief coroners, that they should also be indemnified. I hope that the Government will listen to these necessary protections for those carrying out an important part of the administration of justice.
Lord Alderdice: I shall speak to Amendments 102, 104, 106 and 107 in my name and that of my noble friend Lord Thomas of Gresford, which are in this
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The question of indemnity in respect of judicial review has already been extensively and appropriately spoken to. I understand the wish of the Government, although not all of us agree, that matters should be held at a local authority level. If that is the case, though, we would find it helpful that the local authority was identified as the appropriate place to bill rather than the coroners themselves. Whether or not these amendments satisfactorily address the question, we look for a response from the Government in that regard.
Lord Tunnicliffe: We believe that Schedule 6 sets out a clear yet flexible structure for paying allowances to jurors, witnesses, pathologists, coroners and others who claim. Similar amendments to these were tabled in the other place. In response, my ministerial colleague, Bridget Prentice, gave an understanding to take a fresh look at these provisions in the Bill. We have reflected carefully on the argument in support of the amendments, but our conclusion is that they would remove the current flexibility for paying allowances that coroners and local authorities, as well as the Government, wish to retain.
Amendments 102, 104, 106 and 107 would dictate that the relevant local authority must pay allowances to jurors, witnesses and others on behalf of a senior coroner and would prevent the coroner from doing so themselves from, for example, a delegated project. This restriction in the Bill would be of no benefit to the system, as it may evolve in the future.
I reassure the noble Lord, Lord Alderdice, that coroners will not have to fund allowances and expenses out of their own pockets. It is already implicit in the schedule that a local authority will ultimately fund allowances, given that the relevant local authority funds its local coroner. Regulations under paragraph 9 will provide for a coroner who has incurred expenses to be reimbursed.
In the majority of areas the local authority already makes payments directly, but in a small number of others the local authority and coroner prefer the coroner to make payments that the local authority then reimburses. The schedule gives flexibility for these existing arrangements to continue, and allows payments to be made either by the senior coroner or by the authority on his or her behalf. Schedule 6 was drafted in that way following representations from some members of the Coroners’ Society.
The cumulative effect of these amendments would be to remove the ability for coroners and their staff to pay allowances. That would be unnecessarily restrictive,
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Amendment 109, in the name of the noble Baroness, Lady Finlay, deals with the expenses of medical examiners and the proposed chief medical adviser. We have already debated the merits of having a statutory chief medical adviser, so I do not propose to comment on that aspect of the amendment. On medical examiners’ expenses, I am happy to reassure the noble Baroness that Clause 19(4)(b) already provides for regulations to be made for paying medical examiners’ salaries, expenses, fees, compensation, pensions and other allowances.
I turn to the three amendments that deal with the issue of indemnity. Amendments 77ZA and 114A would indemnify coroners, the Chief Coroner and deputy chief coroners against any costs that they incur when carrying out their duties, against damages awarded against them or costs they are ordered to pay, and against any sums that they are ordered to pay as part of a reasonable settlement. Amendment 63B would similarly indemnify medical examiners. I will put to one side the issue of the chief medical adviser, which we have already debated.
Paragraphs (1) to (3) in Amendment 77ZA replicate the wording of Section 27A of the Coroners Act 1988, which states that coroners are indemnified by the local council. Similarly, Amendment 114A replicates the wording of a subsection of the 1988 Act, but applies the indemnity to the Chief Coroner and deputy chief coroners. Amendment 63B applies that wording to medical examiners.
The noble and learned Baroness, Lady Butler-Sloss, is concerned that the Bill does not provide for coroners to be indemnified, which could make them liable to pay out of their own pockets any costs arising from legal proceedings. In addition, I understand her concern that the Chief Coroner and his or her deputies may also find themselves out of pocket, with no indemnity. The noble Baroness, Lady Finlay, has similar concerns with regard to medical examiners. I reassure the noble Baronesses that that is not the case. Under the Bill, coroners will continue to be indemnified by the local authorities that appoint them. Any costs, including damages or sums payable by way of settlement incurred by the Chief Coroner and deputy chief coroners will be expenses which will be met by my department. I will briefly explain how the Bill provides for this.
Starting with senior coroners, area coroners and assistant coroners, paragraph 9 of Schedule 6 to the Bill provides for regulations on meeting or reimbursing coroners’ expenses. We will consult on draft regulations in due course, but we intend that they will cover indemnities by replicating the effect of Section 27A of the 1988 Act.
We see the expenses cited in paragraph 9 of Schedule 6 as covering not only miscellaneous monies which senior coroners have to pay out in the normal course of carrying out their duties, but also the cost to coroners of defending any claim brought in litigation, or of paying any damages or costs ordered to be paid if they lose.
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Indemnifying the Chief Coroner and deputy chief coroners, paragraphs 5 and 6 of Schedule 7 provide for the Lord Chancellor to pay the Chief Coroner and his or her deputies remuneration, expenses and allowances. For these purposes, expenses will again include costs incurred when defending any claim brought in litigation and costs or damages ordered to be paid by them.
Moving next to indemnifying medical examiners, Clause 19(4)(b) allows the Secretary of State and the Welsh Ministers to make regulations for paying medical examiners expenses and other allowances. This would include reimbursing the cost to medical examiners of defending themselves in any litigation, and the payment of costs awarded against them as a result of such litigation, if such actions are brought personally against a medical examiner in respect of his work in that capacity.
In view of these explanations and assurances, I hope that the noble Baroness will agree to withdraw her amendment.
Baroness Butler-Sloss: I hope the Minister will not think that I am unduly pernickety, but in reading paragraph 9 of Schedule 6, I did not read the word “expenses” as including costs or damages. That seems to me to be something that is quite separate from costs or damages. If I had been construing this in a court and was told that expenses covered this, I would have had my doubts. That is what made me raise this matter by way of amendment. Of course I read paragraph 9 of Schedule 6, and I am delighted about expenses, but I have my doubts. It may be that it is okay. It may be that “expenses” will be all right in regulations, but there is a question about ultra vires; are you able, under regulations, to treat costs and damages as coming within expenses in the primary legislation? I could see a question as to whether it was actually ultra vires, so I remain extremely concerned about the wording.
Lord Tunnicliffe: It is with some trepidation that I respond on a judgment on a point of law from such a senior person, but we are assured by parliamentary counsel that it can be properly construed to mean that. Moreover, we are assured that it is entirely proper to cover all these points in secondary legislation, and we shall be making it as clear as I have tried to do in my speech. We will certainly look at what has been said today, and if there is further clarity that we can provide before Report, we will do so.
Lord Alderdice: I am grateful for the degree of assurance that the Minister has given, but while there is some flexibility, flexibility can be used helpfully or unhelpfully. For example, if the local authority is flexible in the time that it takes to make the payments, someone could be out a good deal of money for a considerable period of time.
Also, the concern is not whether the local authority might eventually pay the money, although that is a concern, but that if it is not prepared to guarantee payment in the first place, the personal liability will have to be undertaken by the coroner. I would like to press the Minister to help us by making clear that we will not have the position, as we have had on occasion in the past, when a local authority has refused in advance to guarantee that payment would be made,
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6.15 pm
Lord Tunnicliffe: I cannot go much further at this moment. My understanding is that the position is as the noble Lord is requesting, but we will look at the words very carefully and see if we can be even clearer that the essence of what we are saying is that no coroner will be out of pocket for doing his duty. We will try and craft that in proper language, and send even more assurance.
The reason we are where we are on this is that there are local arrangements in a number of areas where local coroners of local authorities feel that they are best served by maintaining those arrangements, and we do not wish to bring into law restrictions which would stop those local arrangements, where they are proving satisfactory to the coroners concerned and the local authority.
Baroness Finlay of Llandaff: It is with some trepidation that I rise to sum up the amendments on indemnity. I fail to understand how expenses, which is a very charged word at the moment, can include indemnity for litigation costs incurred in defending litigation. I note that my noble and learned friend Lady Butler-Sloss has already questioned this. I have had conversations with coroners separately who are extremely concerned that the Coroners Act, which currently provides indemnity on the face of the Bill, will be superseded by this Act, where there is not that degree of clarity. I understand their concern. I do not feel greatly reassured. I wonder, as a non-lawyer, whether we could get around this by a very simple insertion to say that it includes costs incurred in defending in litigation for work undertaken in the course of their duty, or something along those lines. That is not for us to do tonight, but I am convinced that we will return to this. In the mean time—
Lord Tunnicliffe: We will certainly look at that point.
Baroness Finlay of Llandaff: I am grateful to the Minister—all the more reason for withdrawing my amendment. I beg leave to withdraw the amendment.
Clause 20 : Medical certificate of cause of death
64: Clause 20, page 12, line 4, leave out “may” and insert “will, having consulted the Chief Coroner,”
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