HC Deb 08 July 2003 vol 408 cc1068-76
The Minister of State, Department of Health (Ms Rosie Winterton)

I beg to move amendment No. 235, in page 61, line 36, after 'injury' insert 'whether physical or psychological,'.

Mr. Deputy Speaker (Sir Michael Lord)

With this it will be convenient to discuss the following:Government amendments Nos. 236 and 237.

Amendment No. 29, in page 63, line 15, at end insert— (9A) No regulations may be made by the Secretary of State under this section unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.'.

Government amendment No. 238.

Amendment No. 30, in clause 144, page 67, line 22, at end insert— '(11) No regulations may be made under by the Secretary of State under this section unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.'.

Government amendment No. 239.

Amendment No. 31, in clause 148, page 71, line 22, at end insert— '(8) No regulations may be made by the Secretary of State under this section unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.'.

Government amendment No. 240.

Amendment No. 32, in clause 151, page 73, line 22, at end insert— '(3A) No regulations may be made by the Secretary of State under this section unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.'.

Amendment No. 33, in clause 153, page 75, line 21, at end insert— '(3A) No regulations may be made by the Secretary of State under this section unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.'.

Amendment No. 34, in clause 154, page 76, line 23, at end insert— '(4) No regulations may be made by the Secretary of State under this section unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.'.

Amendment No. 35, in clause 155, page 76, line 40, at end insert— '(4A) No regulations may be made by the Secretary of State under this section unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.'.

Government amendment No. 241.

Amendment No. 36, in clause 156, page 77, line 16, at end insert— '(1A) No regulations may be made by the Secretary of State under this section unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.'.

Amendment No. 37, in clause 181, page 95, line 35, after 'from', insert 'regulations under sections 141, 144, 148, 151 or 153 to 156 or'.

Ms Winterton

This part of the Bill was discussed in some depth in Committee. I hope that I will be able to show that the Government have listened and have responded positively to the concerns raised.

Government amendments Nos. 235, 236 and 237 amend clause 141 and are intended to put an end to any concerns about the scope of the NHS costs recovery scheme. Our policy intention in relation to the scope of the NHS costs recovery scheme has always been clear. As my right hon. Friend the Minister of State said when this was discussed in Committee, free-standing diseases, particularly industrial diseases, are not covered by the scheme. It is our intention that both physical and psychological injury are covered. Nevertheless, some Committee members expressed genuine concerns about whether the Bill as then drafted left room for other interpretations, and my right hon. Friend agreed to reconsider the issue. We have decided to put the matter beyond doubt and the amendments seek to achieve that.

Government amendment No. 235 confirms that psychological injury as well as physical injury is included in the scheme. That would cover, for example, the case of someone who received NHS treatment for post-traumatic stress disorder following a particularly harrowing incident for which they received compensation. The compensator would also be liable for NHS charges relating to the treatment.

Government amendment NO. 237 deals with questions that arose on the issue of disease itself. It makes it clear that free-standing disease, which would include, for example, asbestosis or mesothelioma, will not be within the scope of the scheme. There will be cases in which someone suffers an injury that leads to the development of a disease as a consequence of the injury. An example might be someone who suffers a broken leg that becomes infected and results in septicaemia. In such cases, if the disease is directly attributable to the original injury, it is clearly right that treatment of it should be included as part of the overall treatment of the injury for costs recovery purposes. The amendment makes that distinction clear.

Dr. Evan Harris

Committee members asked how that arrangement would work, even in a policy that we did not particularly like. I am grateful that the Government have tabled an amendment to clarify that. The remaining problem is whose decision it is, and on what basis they decide, that the disease in question is attributable to the injury suffered. One can usually tell when an injury is caused by an incident, and that would be covered. It is much harder to say whether a disease is attributable to an injury. Has the Minister given any thought to how that might be decided?

Ms Winterton

Obviously, such cases would be linked to decisions made about personal injury claims, and there are two ways in which the decision might be forthcoming. One way would be through a court case where that had been established, and secondly, where an insurance company was settling a claim, there would be discussion about that and agreement would be reached. Clearly, if that gave rise to an appeal, the mechanism to deal with it exists.

Government amendment No. 236 is the first of five minor drafting changes. Government amendment No. 237 specifies that only disease attributable to an injury should be taken into account for the recovery scheme, on the basis that treatment for such a disease is received as a result of the injury. Having used the words "as a result" in that amendment, we have been advised that the same wording should be used in clause 141 (1)(b)(i) and at various other places in this part of the Bill, in place of the original reference to treatment "in respect" of the injury. That ensures clarity and consistency in the test to be used in assessing whether treatment received is within the scope of the scheme. Government amendment No. 236 is the first of those technical changes.

Opposition amendment No.29 seeks to amend clause 141 by making the regulation-making powers in that clause subject to the affirmative resolution procedure. Indeed, all the Opposition amendments—Nos. 29 to 37—try to do the same thing.

With only one or two exceptions, the regulation-making powers in part 3 are not new. Rather, they mirror—sometimes word for word—powers that already exist in the Road Traffic (NHS) Charges Act 1999. Regulations made under the terms of that Act are all subject to the negative resolution procedure, and I see no reason why regulations made under the Bill, which will largely be concerned with the detailed and technical administration of the scheme, should be treated any differently.

Mr. Burns

The Minister sees no reason why regulations made under the Bill should be treated any differently. Why does she think the original decision was taken to use the negative, not the affirmative, resolution procedure?

Ms Winterton

For reasons of consistency, which we believe should continue in the Bill. The regulation-making powers are concerned largely with the administration of the scheme, and we believe that the time of the House would be better spent dealing with them through negative rather than affirmative resolution, especially as all the regulations are set out. I appreciate that the Opposition would prefer regulations to be made by affirmative resolution, but given the amount of time available to the House to discuss such matters, we believe that the negative procedure will be sufficient. Of course, the Opposition are free to pray against those regulations if they wish to do so.

Government amendment No. 238 is one of a small number of minor technical drafting amendments, like amendment No. 236 which I have already covered, consequential on the wording of amendment No. 237. The intention is simply to ensure that references are consistent throughout this part of the Bill. Government amendment No. 239 is another minor drafting amendment consequential on the wording of amendment No. 237, as is Government amendment No. 240. Government amendment No. 241 is the last of the minor amendments designed to ensure consistency.

7.45 pm

I hope that hon. Members will accept that the Government amendments have been tabled in response to concerns raised in Committee and are intended to clarify the position, or are largely technical. I hope that hon. Members will also accept that the Opposition amendments are not only unnecessary, but would take up valuable time of the House, particularly when they repeat what already exists in legislation. I ask the House to accept the Government amendments and reject those of the Opposition.

Chris Grayling

It is clear from the Minister's last remarks that she does not understand the importance of this part of the Bill to many outside groups, small businesses, GPs and organisations that provide insurance to GPs. If this part were implemented wrongly, it could have a significant effect on the welfare and possibly even the survival of a number of smaller businesses. I shall therefore challenge what the Minister said about the negative and affirmative approach to future statutory instruments, and attempt to convince her that she is wrong about that aspect of the measure.

It is true that we have received from the Government some clarification of their intentions in the Bill. In Committee we debated a number of provisions that were vague and confusing, and the Minister has gone some way to clarifying the Government's intentions, but in doing so, she has created additional confusion. I shall deal with some elements of the confusion that arises from the changes that she has made.

It was clear from the comments of the Minister of State, the right hon. Member for Barrow and Furness (Mr. Hutton), in Committee that the measure was intended to apply solely to injury. As the hon. Lady rightly said, we raised the issue of long-term chronic conditions and the fact that it was impossible for the insurance industry to plan for those, as such conditions sometimes emerge years after the event. The Government's focus on injury specifically was welcome and helped to clarify their intentions.

However, I remain uncertain, as do my hon. Friends, about some aspects of what is proposed in the Government's amendments. The Minister spoke about psychological injury. It is appropriate that we should recognise that injury is not always physical and that it is sometimes psychological. The hon. Lady set out a good example in which this aspect of the Bill might be applied—the case of a substantial and distressing public event, following which a large number of people were treated for shock, post-traumatic stress disorder and other psychological conditions that resulted from experiencing or being an eye-witness to the incident.

In the case of a major sporting event, the impact on the organisers could be substantial. We need only think back to some of the more terrible incidents that we have experienced in this country in recent years, such as the Bradford City fire and the Hillsborough disaster, in which large numbers of people were affected by direct experience of an appalling situation. Sports clubs that must insure against the risks to them could face huge problems. [Interruption.]

Mr. Deputy Speaker

Order. I am being distracted by conversations while the hon. Member for Epsom and Ewell (Chris Grayling) is addressing the Chamber.

Chris Grayling

In assessing the risk associated with large-scale sporting events or public events of any variety, including rock concerts or open-air classical concerts, the insurance industry will have to take into account the possibility of reimbursing to the national health service the cost of treating people who have suffered shock and other psychological aftermaths as a result of a major incident of the sort that we hope will not occur too often. That will be factored into insurance premiums in future.

What discussions has the Minister had with the insurance industry about that issue? Has she made any assessment of how the Government could limit the measures? In Committee, the Minister of State, the right hon. Member for Barrow and Furness, said that he would cap the payout that an insurance company could have to make in an individual case. Of course, as a large number of payouts could be made in relation to an individual incident, insurance organisations and event organisers could face substantial payouts, as a single incident might affect not only one person but a range of people. Will the Minister clarify that point?

I should also like clarification in respect of disease acquired from injury. The Minister cited the example of septicaemia. We can all understand how that would feature in a case for personal injury. She will be aware, however, of the very widespread incidence of MRSA, a hospital-acquired infection. She and her colleagues have indicated that health care providers will not be exempt from the provisions. What is the position in respect of infection acquired as A consequence of having an injury, rather than as a direct result of the injury itself? Where will she draw the dividing line, especially in respect of claims against the national health service? Treatment for an injury and an adverse incident of the sort that many people experience when they pick up MRSA in a hospital might be indistinguishable in that context. What about somebody who falls out of a bed in a hospital because they have not been properly protected with barriers at the side of the bed? That happened to an elderly gentleman in my constituency a few weeks ago and he contracted a hospital-acquired infection. How will the distinction be made in law?

Our amendments need to be seen in the light of the substantial number of unanswered questions in the Bill. We received a number of assurances from the Minister of State, the right hon. Member for Barrow and Furness, that various limitations would be put in place. For example, he said that a maximum amount would be retrievable by the national health service under the Bill. Of course, the Bill does not specify that maximum amount, which will be subject to regulations. Various provisions in clauses 144 and 141 give the Government the freedom to modify the scheme, whether to withdraw eligible circumstances in which payments can be made to the NHS or to add to them. Frankly, I do not accept what the Minister said about the road traffic measure and the negative procedure. I suspect that the argument that we are having tonight about the affirmative and negative procedures also occurred when that measure was debated.

As was amply demonstrated by the very good piece of work done by the Department for Work and Pensions on the problems that employers are facing because of the rising cost of compulsory employers liability insurance, if the Government get this measure wrong, it will have a significant adverse effect on smaller businesses in particular. Therefore, it is not good enough to send the Government forth from this place with a free hand and the ability to make regulations and push them through with the negative procedure. I know that business groups are less than satisfied with what the Government are doing and do not feel that they understand the consequences of even a limited scheme for the cost of liability insurance in respect of smaller employers who already face a substantial increase in costs as a result of circumstances in recent years. They will pay more at a time when they can ill afford to do so.

I am grateful to the Minister and her colleague, the Minister of State, the right hon. Member for Barrow and Furness, for saying that the Government would wait at least until the Department for Work and Pensions review is completed before implementing the measure. I find it surprising that it was drafted in separation from that process, but it is welcome that they have agreed to delay it. None the less, when the Government come to frame the regulations off the back of that DWP work and the measures set out in the Bill, they should come back to the House and seek its consent. They should not hope that hon. Members will spot the regulations when they have been tabled and pray against them. The issue is too significant for the small businesses of this country. There is no reason why the regulations should not be made a matter of mandatory debate in this House. The issue is important and it is a shame that the Government do not feel it appropriate to tell the House that it will automatically have a chance to debate this issue and to challenge them over it. That is to be regretted. I hope that, even at this stage, the Government may change their mind and that the Minister will accept that the affirmative rather than the negative route is the right one.

Dr. Evan Harris

I have two brief questions for the Minister. First, does the provision that she has made to distinguish between injury and illness and to provide for illness directly resulting from injury mirror the equivalent road traffic measure? Does she intend it to do so for consistency?

Secondly, I mentioned that the only problem that I envisaged was working out what illnesses were attributable to an injury, but I have a further question about that issue, which was prompted by the remarks of the hon. Member for Epsom and Ewell (Chris Grayling). The Minister argues that injury may be "physical or psychological". The amendment does not refer to physical and/or psychological injuries or to physical and psychological injuries, but allows for psychological injuries alone. I imagine that she may have in mind post-traumatic stress disorder, but it is hard to argue that that is not an illness rather than an injury. As an illness, it would not be countered by virtue of Government amendment No. 237, which seeks to introduce into clause 141 a new subsection (4A): 'Injury' does not include any disease. One might argue that post-traumatic stress disorder is more like a disease or condition than an injury. In the absence of any physical trauma—I think that that is the distinction on which she and her draftsmen are relying, which is logical—it is hard to see how post-traumatic distress disorder and other purely psychological injuries might be considered injuries, as they are more likely to be considered illnesses when push comes to shove, such as in the event of an appeal, as the trauma causing the condition will not exist in that instance. I should be grateful for clarification.

Ms Rosie Winterton

I take on board the points made by the hon. Member for Epsom and Ewell (Chris Grayling) about businesses feeling that they have to bear an added weight as a result of the Bill. We need to be clear, however: if an employer did not have proper health and safety measures in place and their negligence resulted in injury to an individual who was subsequently awarded compensation through a personal injury claim, surely it is only right that the employer should pay back to the NHS the costs of the treatment. That principle is embodied in the part of the Bill under discussion and I think that we should all welcome it.

The hon. Gentleman referred to the fact that the Minister of State, my right hon. Friend the Member for Barrow and Furness (Mr. Hutton), said that we would not implement the provisions until the Department for Work and Pensions had finished its review of liability insurance and so on. However, the principles are very clear. Given that background, I turn to the specific points raised by the hon. Member for Epsom and Ewell. On sporting events, if negligence on the part of an organiser results in personal injury claims, those provisions will apply.

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On the setting of caps, that will be done by regulations, but our intention is that it will be in line with the current road traffic tariffs—that is, £452 for an out-patient charge and £556 for an in-patient daily rate fee, with a £33,000 cap.

Chris Grayling

Taking the Minister back to sporting events, one of the bodies that will be affected is the police. If she thinks back to the Hillsborough disaster, the police were ultimately held responsible for operational mistakes made on the ground. Financially speaking, the police face a potentially huge challenge in catering for such an eventuality, given that, tragically, mistakes are sometimes made.

Ms Winterton

That would follow on from the winning of personal injury claims; the same point was made about the national health service. We think that it is right that the provisions have to apply across the public bodies, not just in the private sector. If a personal injury claim is made and settled, it is only right that the appropriate body pays for the care.

MRSA would not be covered in the way that the hon. Gentleman suggests, because there would be a separate intervening cause that was not part of the original injury. Obviously, there are other mechanisms for redress in those circumstances.

On post-traumatic stress disorder, the scheme will apply only if a person has been able to sue someone for damages. Several of the cases that the hon. Gentleman raised would not concern a personal injury claim; that may well apply to the major sporting events that he talked about.

The distinction in the Bill does not mirror the Road Traffic (NHS Charges) Act 1999, which will be repealed when the Bill takes effect. It does not apply solely in relation to those provisions, which focus on injuries caused by the use of a motor vehicle on a road.

I shall be more than happy to write to hon. Members about any matters that I have been unable to cover. Having given those assurances and further explanations, I hope that hon. Members will feel able to support the Government amendments and reject those of the Opposition.

Amendment agreed to.

Amendments made: No. 236, in page 61, line 39, leave out 'in respect' and insert 'as a result'.

No. 237, in page 62, line 28, at end insert— '(4A) "Injury" does not include any disease. (4B) Nothing in subsection (4A) prevents this Part from applying to—

  1. (a) treatment received as a result of any disease suffered by the injured person, or
  2. (b) ambulance services provided as a result of any disease suffered by him,
if the disease in question is attributable to the injury suffered by the injured person (and accordingly that treatment is received or those services are provided as a result of the injury).'. No. 252, in page 62, line 36, leave out from beginning to 'an' and insert 'other treatment provided by'.

No. 268, in page 62, line 44, leave out from 'section 16CA' to end of line 45 and insert 16CC, 28C, 28K or 28Q of the 1977 Act (primary medical and dental services), or'.

No. 269, in page 63, line 4, at end insert— '() In relation to any time before sections (provision of primary medical services) and (general medical services contracts) come into force, the references in subsection (5)(d)(i) to sections 16CC and 28Q of the 1977 Act are to be taken as a reference to section 29 of that Act (arrangements for general medical services).'.—[Ms Rosie Winterton.]

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