HL Deb 10 November 2003 vol 654 cc1174-206

Further consideration of amendments on Report resumed on Clause 66.

Earl Howe moved Amendment No. 322:

Page 26, line 29, at end insert—

( ) the Office for Standards in Education;

( ) the Department for Education and Skills;

( ) the CSCI.

The noble Earl said: My Lords, in Committee I asked the Minister which of the statutory bodies would take the lead on children's issues and, in particular, child protection matters. He said that it would be CSCI. However, I still think that we must be clear about the means by which, in practice, CHAI will access personal named data relating to children, to which the Minister alluded earlier.

It may be that data in which CHAI has a direct interest and needs to access under the code of practice are held not by an NHS body, but by CSCI or Ofsted. Therefore, Amendment No. 322 explores that issue. It is a probing amendment, which I do not intend to press. I have considerable concerns about the free exchange of personal data between government agencies, which, although not possible at present, is implicitly envisaged in the recent Green Paper, entitled, Every Child Matters. The ability of CSCI to access personal data is being considered in the context of the Laming Report. Therefore, I accept that there is little that the Minister can say about that at the moment.

However, he mentioned that Ofsted would be asked to develop a protocol on joint working and information sharing. While that is highly desirable, it brings us back to the concerns raised in the earlier group of amendments. Who will decide whether the protocol is acceptable? Where will the safeguards lie in relation to its use? How is the Data Protection Act to be complied with?

On the previous occasion, the Minister made the point that the duty of co-operation and joint working was already in the Bill; therefore, there should be no need to write in a duty, as proposed in my amendment. Again, I am worried by that comment because it seems to imply that a duty of co-operation on its own would be enough to provide legal cover to either CHAI or CSCI—indeed, also to Ofsted—for the sharing of privileged information. I hope that he did not mean that, but that is how it reads in Hansard. The whole issue seems to be fraught with problems. Perhaps the Minister can shed a little further light on how these matters are being addressed by the Government. I beg to move.

Lord Warner

My Lords, I am not sure whether I will satisfy the noble Lord, but I shall press on. The amendment would expand the list of specified bodies to which the subsection refers. I shall try to address each of the suggested new bodies in turn.

We continue to believe that placing Ofsted under a duty to provide information in this manner to CHAI is not appropriate. Noble Lords will already be aware of the co-operation provisions in the Bill, as the noble Earl mentioned. Given the increased remit in relation to children that the recent Green Paper, entitled, Every Child Matters, proposed for Ofsted, it is proper that both bodies should develop together appropriate protocols about joint working and information sharing, rather than effectively making one body subservient to the other. Further, it is worth bearing in mind that we have put this Green Paper out to public consultation and we are awaiting the responses. It would not be altogether appropriate to pre-empt that consultation.

Noble Lords opposite have expressed surprise that we did not intend to place both parties under specific duties of co-operation. We fully expect that CHAI and Ofsted, as lead inspectorates in the areas of health and education, will want to work co-operatively and so believe that we do not have to spell this out on the face of the Bill. Ofsted is already able to co-operate with other inspectorates and has often done so, for example, as part of the Street Crimes Initiative. Certainly, as part of my recent experience as chairman of the Youth Justice Board, I saw that Ofsted co-operated very well with criminal justice inspectorates as regards the inspection of secure facilities for juveniles.

Like the Social Services Inspectorate and CSCI in due course, Ofsted is also a member of the local authority inspectorates forum, members of which co-operate and share information as a matter of good practice where this is necessary to promote joined-up working. Members of that forum will co-operate with CHAI where appropriate as a matter of course.

Secondly, this amendment proposes to place a duty on the Department for Education and Skills to provide information to CHAI. In our view, this would not be appropriate. Government departments such as the Department of Health and DfES will need to have regular contact with CHAI and, indeed, CSCI. Should the inspectorates require information held by these government departments, there is no reason why it should not be provided as long as the requirement is justified. There is no need or justification for placing a duty in law on the Secretary of State.

I should also like to draw the attention of the noble Earl to the fact that this power under Clause 66 is designed to enable CHAI to obtain information from inspected bodies, not government or, in the case of Ofsted, non-ministerial departments.

That finally brings me on to the reference to CSCI. As I have just outlined, this clause is intended to allow CHAI to obtain information it requires from inspected bodies—we have made it clear in subsection (2) that this relates to NHS bodies in England and Wales as well as cross-border special health authorities and other persons providing healthcare for or exercising the functions of such bodies or local authorities.

Both CHAI and CSCI are already under duties to co-operate with each other where it seems to them to be appropriate to do so under Clause 118. Such co-operation would include the sharing of information and, again, I therefore consider this amendment to be unnecessary.

I have sought to give a full explanation why I do not think that this amendment is either necessary or appropriate. Turning to the matter of data protection, all I would say to the noble Earl is that these are all public bodies and the requirements of data protection legislation would apply to them in the normal way.

8.45 p.m.

Earl Howe

My Lords, as I said, this was intended as a probing amendment to tease out whether there would be a free exchange of data between CHAI and CSCI. It certainly appears that I have succeeded in my aim. It worries me that the duty of co-operation set out in the Bill is apparently sufficient to override common law duties of patient confidentiality. That is how I interpret the Minister's reply and I am somewhat shocked.

Lord Warner

My Lords, perhaps I should have made the position more clear. CSCI and Ofsted will be constrained by the requirements of the common law duty of confidentiality as well as the requirements of data protection as regards information they will be able to share. It is not true that the common law duty of confidentiality is set aside.

Earl Howe

My Lords, that is very reassuring and I am glad that I gave the Minister the opportunity to put it on the record. I shall consider these matters further, but the Minister has been most illuminating. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 323 and 323A not moved.]

Clause 68 [Reviews and investigations relating to Wales]:

[Amendments Nos. 324 and 325 not moved.]

Lord Warner moved Amendment No.326:

Page 27, line 29, at end insert—

( ) the availability and quality of information provided to the public about the health care;

On Question, amendment agreed to.

[Amendments Nos. 327 to 330 not moved.]

Clause 69 [Reporting to Secretary of State and regulator]:

[Amendment No. 331 not moved.]

Clause 70 [Right of entry]:

[Amendment No. 332 not moved.]

[Amendment No. 333 not moved.]

Clause 74 [Introductory]:

Lord Warner moved Amendment No. 334:

Page 30, line 39, at end insert—

e availability and quality of information provided to the public about the services;

On Question, amendment agreed to.

[Amendment No. 335 not moved.]

Clause 75 [Information and advice]:

[Amendments Nos. 336 and 337 not moved.]

Clause 77 [Annual reviews]:

[Amendments Nos. 338 to 340 not moved.]

Lord Warner moved Amendment No. 341:

Page 32, line 12, at end insert—

( ) The Secretary of State may, after consulting the CSCI, by regulations make provision as to the procedure to be followed in respect of the making of representations to the CSCI before the award of a performance rating under this section.

On Question, amendment agreed to.

Clause 78 [Other reviews and investigations]:

[Amendment No. 342 not moved.]

Lord Warner moved Amendment No. 343:

Page 32, line 41, at end insert—

( ) The Secretary of State may, after consulting the CSCI, by regulations make provision as to the procedure to be followed in respect of the making of representations to the CSCI before the publication of a report under this section.

On Question, amendment agreed to.

Clause 79 [Failings]:

[Amendments Nos. 344 and 345 not moved.]

Lord Warner moved Amendment No. 346:

Page 33, line 29, at end insert—

( ) The Secretary of State may, after consulting the CSCI, by regulations make provision as to the procedure to be followed in respect of the making of representations to the CSCI before the publication of a report under this section.

On Question, amendment agreed to.

Clause 80 [Studies as to economy, efficiency etc]:

Lord Warner moved Amendments Nos.347 and 348:

Page 33, line 32, leave out "may promote or undertake" and insert "has the function of promoting or undertaking

Page 34, line 5, at end insert—

( ) The Secretary of State may, after consulting the CSCI, by regulations make provision as to the procedure to be followed in respect of the making of representations to the CSCI before the publication of any recommendations or the result of any studies under this section.

On Question, amendments agreed to.

Clause 83 [Criteria]:

[Amendment No. 349 not moved.]

Clause 88 [Power to require information etc]:

[Amendments Nos. 350 and 351 not moved.]

Clause 93 [Studies as to economy, efficiency etc]:

Lord Warner moved Amendment No. 352:

Page 38, line 35, leave out "may promote or undertake" and insert "has the function of promoting or undertaking

On Question, amendment agreed to.

Clause 95 [General considerations]:

Lord Warner moved Amendment No. 353:

Page 39, line 25, at end insert—

( ) the availability and quality of information provided to the public about the services;

On Question, amendment agreed to.

Clause 100 [Transfer of functions to CHAI and CSCI]:

[Amendments Nos. 354 to 356 not moved.]

Clause 101 [General functions of CHAI]:

[Amendments Nos. 357 to 360 not moved.]

Clause 102 [General functions of CSCI]:

[Amendment No. 361 not moved.]

[Amendment No. 362 not moved.]

Clause 108 [Boarding schools and colleges]:

Lord Clement-Jones moved Amendment No. 363:

Page 46, line 6, at end insert—

( ) In exercise of its functions by virtue of this section, the CSCI shall—

  1. (a) prepare a report on the discharge by the school or college of relevant functions;
  2. (b) without delay send a copy of the report to the school or college; and
  3. (c) make copies of the report available for inspection at its offices by any person at any reasonable time;
and may take any other steps for publicising a report which it considered appropriate.

( ) Any person who asks the CSCI for a copy of the report shall be entitled to have one on payment of a reasonable fee determined by the CSCI; but nothing in this subsection prevents the CSCI from providing a copy free of charge when it considers it appropriate to do so."

The noble Lord said: My Lords, during the course of a long Committee stage one of my favourite quotations was made by the noble Baroness, Lady Andrews, when addressing the precursor to the amendment. She said: I must confess that the amendment has taken a slightly different direction from the one I anticipated".—[Official Report, 20/10/03; col. 1391.] With my noble friend Lord Addington sitting behind me, her comments have a kind of analogy with the Welsh rugby team, the centres taking a rather different line from the one anticipated by the English team yesterday. My noble friend Lord Thomas has already alluded to that game, and yet I was supporting the English team at the time.

The noble Earl, Lord Howe, used an elegant phrase and referred to, I believe, "the superior set of amendments that follow". I look forward to hearing what the noble Baroness has to say in regard to the remaining amendments. I beg to move.

Baroness Andrews

My Lords, there is no doubt that at this time of night the Chamber assumes the proportions of a confessional in so many ways. It may be that one of these days the noble Lord will be supporting the things made in heaven.

I hope to be able to give the noble Lord all the good news that he seeks. I have tabled Amendments Nos. 364 and 365 in direct response to the concerns he raised in Committee. I hope that they will enable him to withdraw his amendment as they seek to achieve the same effect.

If I understood correctly what the noble Lord said in Committee—and he had undertaken some superb detective work—he was concerned that the power under Clause 109 is not sufficiently broad to require the CSCI to report on all aspects of how a particular school or college has discharged its functions. In particular, he was concerned that the clause required the NCSC—and, in future, the CSCI—to report only on the fact that it had exercised its powers of entry under Section 87(5) of the Children Act and not on what it had found in the course of exercising these powers.

Parliamentary counsel has confirmed that under the existing drafting the clause achieves the effect that the noble Lord is seeking. However, we are anxious to avoid future misunderstanding and, to ensure that the effect of the clause is absolutely clear on the face of the Bill, we have tabled Amendments Nos. 364 and 365 as clarifying amendments. I hope that meets the noble Lord's concerns.

As I promised in Committee, I have also tabled Amendment No. 366 to make it clear that CSCI is required to send a copy of any report to schools and colleges and make copies available at its offices for inspection by any person. As I said in Committee, we would expect it to do so in any case, but this amendment places it on a statutory basis. On that basis, I hope that the noble Lord will withdraw his amendment.

Baroness Howarth of Breckland

My Lords, I welcome the amendment. There have been considerable difficulties in relation to some boarding schools where it has been difficult to have reports in the public domain. I am grateful to the noble Lord, Lord Clement-Jones, for raising this issue and to the Government for clarifying it.

Lord Clement-Jones

My Lords, with the form of words that the Minister has used, both in correspondence and tonight, she is effectively saying that the Government believe that the clause means what we thought it meant, but, to put it beyond peradventure, they will amend it accordingly. I am very happy with that as a compromise and very happy that the Government have put down further amendments. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 109 [Boarding schools and colleges: reports]:

Baroness Andrews moved Amendments Nos. 364 to 366:

Page 46, line 10, after "subsection (5)" insert "in relation to a child"

Page 46, line 10, at end insert "on whether the child's welfare is adequately safeguarded and promoted while he is accommodated by the school or college"

Page 46, leave out lines 11 to 13 and insert—

(9B) Where the Commission or the National Assembly for Wales publishes a report under this section, it must—

  1. (a) send a copy of the report to the school or college concerned; and
  2. (b) make copies of the report available for inspection at its offices by any person at any reasonable time."

On Question, amendments agreed to.

Baroness Barker moved Amendment No. 367:

Before Clause 111, insert the following new clause—


(1) Complaints under this Act may be made by an individual or a body of persons, whether incorporated or not. (2) A complaint may be submitted in respect of—

  1. (a) the exercise by an NHS body of any of its functions;
  2. (b) the provision by any person of health care for which the body is responsible;
  3. (c) the provision of an NHS service by a health professional supplied under private contract; and
  4. (d) the provision of services by the body or any other person in pursuance of arrangements made by the body under section 31 of the Health Act 1999 (c. 8) (arrangements between NHS bodies and local authorities) in relation to the exercise of the health-related functions of a local authority.

(3) A complaint may be initiated by—

  1. (a) the person aggrieved;
  2. (b) his personal representative;
  3. (c) a member of his family;
  4. (d) an independent advocate, or
  5. (e) some body or individual suitable to represent him"

The noble Baroness said: My Lords, I am rather sorry that we cannot continue these discussions in a similar vein. I think the form of words that my noble friend Lord Clement-Jones was searching for was that the Government agree with what he proposed at an earlier stage. Had that been the Minister's response this time, we could have settled this issue very quickly.

We considered in Committee the key area of complaints. The noble Baroness, Lady Andrews, gave a characteristically full and detailed response at that stage, for which we were very grateful. Therefore, it is somewhat disappointing to see the limited nature of the amendments which the Government have tabled as a result. The noble Baroness understood the points we were making about the need to have clarity about the process under which people can bring complaints.

We on these Benches start from a standpoint of wishing to see complaints, and, in particular, resort to litigation for complaints within the NHS, minimised. Litigation is a plague within the NHS, and we are seeking ways in which we can prevent matters escalating.

In Amendment No. 367, we have set out what we think is a clear, coherent format for a complaints procedure which would satisfy the large majority of people who bring complaints against the NHS. We also welcome government Amendment No. 370 which states that there must be clarity about those to whom complaints may be made. That is very necessary, given the plethora of bodies involved in assisting people with complaints. However, we on these Benches find Amendment No. 373 somewhat inadequate. It does not go into detail about the way in which complaints will be effectively handled.

Amendment No. 372 is a proposal that we discussed last time, whereby small ex gratia payments to an upper value set in regulations could be made in respect of lesser injuries that have occurred to people and could avoid more complex complaints and investigations. As I said earlier, it would often obviate the necessity of taking legal action. We believe that is important, because a lot of people are currently being taken in by adverts for no-win, no-fee claims; when the process is completed, the claimant ends up with very little indeed. It would be preferable for those in the NHS who deal with such matters, and for those bringing complaints, to have a mechanism for that, as it would keep them out of long and costly legal proceedings.

An expert group convened by the Scottish Executive has recommended introducing ex gratia payments into the Scottish NHS complaints procedure. While one need not always follow nations that are proud, often right but hopeless at rugby, it is from time to time to be commended. In England, the Clinical Disputes Forum has recommended compensation should be available through the NHS complaints procedure. We believe that is a wise way forward. I beg to move.

9 p.m.

Earl Howe

My Lords, I shall speak to Amendments Nos. 368 and 369, which would require the first regulations under Clauses 111 and 112, setting up the new complaints procedures, to be subject to the affirmative procedure. I am afraid that it is confession time: I must apologise to the House for failing to heed the Minister's strictures in Committee about forgetting Wales. I confess that the amendments are defective in that respect. However, with that acknowledged defect, I hope that they may be treated as probing amendments.

We had a useful debate about complaints procedures in Committee, where the noble Baroness, Lady Andrews, gave comprehensive responses. She reminded us not only of the significant issues that will be dealt with under the regulations setting up the new complaints systems but also that it will be the first time that complaints procedures will be the subject of regulations, direction-making powers having been used in the past.

In Committee, we tabled amendments requiring all orders to be subject to the affirmative procedure. In the light of our discussions in Committee I have modified that to relate only to the first regulations. Many detailed issues need to be worked out and many sensitive areas, such as confidentiality of data, need to be got right in the regulations. The Minister was not, of course, able to give us chapter and verse in response to various detailed questions in Committee because the draft regulations are not available. We believe that the importance of the first regulations is such that Parliament should have an opportunity to scrutinise them under the affirmative procedure. I concede that the Delegated Powers and Regulatory Reform Committee did not recommend that but, equally, the Government's memorandum to the committee did not fully reveal the extent of the changes that the new regime would bring about.

Baroness Finlay of Llandaff

My Lords, I shall speak to Amendment No. 372, which stands in my name. The amendment would ensure that compensation systems and complaint systems were kept separate. Complaints and compensation systems serve entirely different purposes. Compensations act to make good, in so far as money can, the harm caused through actual negligence. The patient pursuing compensation must demonstrate harm caused by a shortfall of care, not simply that the care was unacceptable to the patient.

By contrast, the complaints procedure should be designed to explain exactly what has happened and why. Patients should then be free to pursue a legal claim for compensation if that is what they choose, armed with the facts. Linking complaints and compensation is likely to deter clinicians from being open. The award of compensation will inevitably be seen as a reflection of culpability and the severity of the error made by the doctor. Awards could well be reported in the local press, and adverse publicity will reduce public confidence in the NHS. That goes against the declared wish of the Department of Health to move away from the current blame culture to a more open NHS, in which everyone works together to learn from adverse incidents and near misses.

Incorporating compensation into a complaints procedure creates the significant risk that complaints will not be readily resolved, leading to a greater bureaucratic burden on the NHS. It could result in a two-tier system, with claims worth less than £5, 000, for example, being determined on some woolly notion of acceptable standards, and those over the threshold being considered against more rigorous standards. The link between the two could also create a disincentive to be satisfied with an apology, which is a matter to which I referred in Committee. It is an uncosted proposal that could cost the NHS vast sums of money.

Baroness Andrews

My Lords, I am sorry to disappoint the Liberal Benches regarding this amendment but perhaps I can offer an acceptable explanation.

Clause 111(1) is intended to set out in general terms what a complaint may be about. Amendment No. 367 would broaden who may make a complaint and set out in slightly more detailed terms what a complaint may be about.

The proposed subsection (1) would allow complaints to be made other than by individual patients. That is where the problem starts. I am not sure that the noble Baroness intended that complaints could be made, for example, by contractors providing services to the NHS, but that would be one effect of the amendment. It may be, however, that the intention is to allow complaints to be made on behalf of one or more patients by a representative body—and I understand the reason why this might be put forward. However, there is a problem with that approach. The focus of the complaints system must be on the individual patient—that is what we have been about in the consultation process—and his or her particular care and circumstances. There are other and more appropriate means by which groups of patients or carers, or representative bodies may raise their concerns about care, for example, through the newly established patients forums, or directly with the health or social care organisations involved. We very much value and welcome the effort they make to support patients who make complaints.

Proposed subsection (2) raises fewer concerns, but I am afraid that I must return to what I said in Committee—that it would put too great a level of detail on the face of the Bill. We believe that regulations are a better and more effective way of doing this. As regards proposed subsection (3), I assure the noble Baroness that it is our intention that regulations will make provision for all those listed in paragraphs (b) to (e) to make a complaint as representatives of a complainant. We believe that regulations are the right way to do that for the following reasons.

The amendment would allow almost anyone to represent an individual patient but makes little reference to the patient him or herself, his or her consent to having the complaint made and the involvement he or she might have in the process. The amendment is too narrow. We consider that regulations are needed in this area to provide important detail to deal with issues of consent, incapacity or cases where a judgment has to be made about the suitability of a representative. I therefore believe that this amendment would not add any value to the Bill. Regulations, on the other hand, subject to appropriate consultation—I stress that—would actually increase the overall effectiveness of its provisions. I hope that the noble Baroness will look kindly on that explanation.

I turn to the probing Amendments Nos. 368 and 369. I am shocked that the noble Earl forgot Wales again considering that he seems to be completely preoccupied with it in other parts of the Bill. These amendments would have the effect of requiring that the first regulations made under these clauses are treated under the affirmative resolution procedure. We believe that that would cause problems.

Section 191(4) of the Bill stipulates that any power to make regulations under this Act is exercisable by statutory instrument. This has been normal practice in relation to the regulation-making powers of all such legislation covering the regulation of health and social care services. It is also normal practice for the negative resolution procedure to be used for the making of these regulations. It was significant that the Delegated Powers and Regulatory Reform Committee remarked in its report of September 2003 that since its inception the NHS has left a great deal to subordinate legislation subject to the negative procedure and directions—it is worth reiterating that—and that the basic framework has been maintained on successive reorganisations, including those effected by various enactments of recent years. The committee concluded that it did not consider that the number of delegated powers in the Bill was cause for concern.

As regards the complaints clauses, noble Lords will be aware that the committee drew to the attention of the House the fact that disclosure is authorised to enable complaints to be considered notwithstanding any common law rules of confidence that would otherwise prohibit or restrict disclosure. We had a full and frank exchange of letters with the committee and it was satisfied with the explanation. It has not recommended changes to the regulations on complaints.

That indicates a degree of satisfaction with the process. In addition, in terms of transparency and public interest, we have been very open throughout our debates about the reasons for reforming the way in which complaints are handled under the procedures. We set out a very clear programme, NHS complaints reform—Making things right, which was published in March. It sets out the way forward for reform. In Committee, I stressed that we were aiming for a system that streamlined and simplified the complaints system, clarified roles and responsibilities and involved patients and service users. The clauses make clear our intentions on how that will be covered in regulations.

I reiterate assurances that we are committed to involving all stakeholders in the public discourse to ensure that we get the details of the procedures right. I stress again that we will be consulting on the content of the regulations to ensure that they reflect the needs of patients, service users and others. That will, of course, include consultation with the Data Protection Commissioner. That is a very important part of what we are going to do.

As I made clear in Committee, and as the noble Lord mentioned this evening, the clauses provide for the first time for the details to be subject to regulations. It is important that the regulations will build on the structure of the existing provisions. That vastly improves the current provision, whereby the complaints procedures are subject in some cases to regulations and in others only to a variety of directions. That change will strengthen the complaints procedure.

The regulations will provide for who may complain and about what, what people can expect. by way of a full and prompt response and, where appropriate, a review of the complaint by a body completely independent of the organisation complained about. They will also place responsibility with health and social care organisations for making effective responses to complainants.

For all those reasons—those on the practice and those relating to the provisions that we are making for comprehensive consultation—I hope that noble Lords will be persuaded that it is not necessary to make the regulations subject to affirmative resolution procedure.

I shall turn to Amendment No. 372 and the words of the noble Baronesses, Lady Finlay and Lady Barker. We dealt with a similar amendment in Committee when the noble Baroness, Lady Finlay, was unable to be with us. I am pleased that she was able to speak to the amendment this evening. Amendment No. 372 is to do with making financial redress available through the complaints procedure for severe inconvenience caused by administrative error.

As I said in Committee, NHS bodies are already able to make ex gratia payments where legal liability would otherwise be conceded, and NHS bodies will continue to have that flexibility under the reformed NHS complaints procedure. The amendment would also apply to social care but, again, there is already provision for payments to be made by local authorities where they consider that their actions amount to maladministration. None the less, the noble Baroness makes the valid point that NHS bodies, unlike other similar public bodies, are not able to make financial redress available for severe inconvenience caused by administrative error. That issue would benefit from further deliberation.

I say that because, as I mentioned in Committee, the Chief Medical Officer has carried out an extensive review of the way in which the NHS handles cases that may involve clinical negligence. The consultation document, Making Amends, was published in June 2003. It included recommendations designed to draw the systems for dealing with complaints and clinical negligence more closely together. Subject to the result of that consultation, we shall be considering the alignment of the complaints and clinical negligence systems. We shall do that in terms of process—for example, the recommendation that the possibility of legal action should not halt the complaints system, bringing it to a crashing halt, as it does now—and in terms of outcome, examples of which are explanations, apologies and compensation.

On compensation, I should say that the consultation on Making Amends will also consider the link between complaints and payment. It will look at the arguments for and against. I can therefore assure both noble Baronesses that we will consider the points raised by the amendment as part of the consultation on Making Amends.

I turn finally to our own amendments. They have received a slightly meagre welcome, but I shall press on with them.

Amendments Nos. 370 and 371 are essentially technical drafting amendments recommended by parliamentary counsel. Amendment No. 370 has been tabled for the sake of completeness. It makes clear that the regulations stipulate not only who may complain and about what, but also, as the noble Baroness, Lady Barker, said, to whom the complaints may be made.

Amendment No. 371 is necessary to ensure the consistency of the clause with Clauses 111(1) and 112(1), which concern the handling and consideration of complaints. Amendment No. 373 makes clear that regulations under the Bill may make provision requiring persons handling complaints to make information available to the public. That is our response to an amendment proposed in Committee by the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Barker. We pointed out that we were sympathetic at that time. The noble Baroness seems not to be quite satisfied, but we have made a gesture in response to her points and we hope that it will be sufficient.

The intention of our policy has always been—I do not think that I need to remind noble Lords of it—that information about the complaints procedures should be made available to members of the public free of charge. The amendment makes that commitment explicit in the Bill.

I hope that the noble Lords will withdraw their amendment.

9.15 p.m.

Baroness Barker

My Lords, as ever the Minister has put in an impressive performance and addressed every point one by one. I draw comfort from the fact that one of the main reasons for her resisting Amendment No. 367 was the existence of patient forums. In light of our debates earlier this afternoon, I take that as a heartening sign.

It has been useful to go over the ground again. I accept the noble Baroness's identification of a deficiency in the amendment; namely, the absence of any mention of consent and incapacity. She will know that I will again be discussing those issues in another place tomorrow afternoon. That is a fair criticism.

I am heartened to learn that the regulations will recognise the intent of subsection (3). Most people who are in acute hospitals are so ill that they are in no condition to make a complaint. It is the people about them who see what is wrong who, for good reason and reasons linked to incapacity, need to make complaints.

I also take heart from the Minister's comments about the alignment of the complaints and negligence procedures. I hope that there is a positive outcome to that. Perhaps I should not have been so ungracious in my reception of her amendments. Following her fuller explanation, I welcome them a lot more warmly than I did about 10 minutes ago. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 111 [Complaints about health care]:

[Amendment No. 368 not moved.]

Clause 112 [Complaints about social services]:

[Amendment No. 369 not moved.]

Clause 113 [Complaints regulations: supplementary]:

Baroness Andrews moved Amendments Nos. 370 and 371:

Page 48, line 35, at end insert—

( ) the persons to whom complaints may be made;" Page 48, line 38, after "making" insert ", handling

On Question, amendments agreed to.

[Amendment No. 372 not moved.]

Baroness Andrews moved Amendment No. 373:

Page 49, line 7, at end insert—

( ) The regulations may require any person or body who handles or considers complaints under the regulations to make information available to the public about the procedures to be followed under the regulations.

On Question, amendment agreed to.

Baroness Cumberlege moved Amendment No. 373A:

Before Clause 118, insert the following new clause—


The Secretary of State must order a review, within 18 months of the commencement of this Act, of the delivery, scrutiny and accountability arrangements of the Department of Health, and public bodies including executive and non-executive non-departmental bodies already involved in the regulation and inspection of health care, including the case for an NHS agency, as a non-departmental public body, for England.

The noble Baroness said: My Lords, perhaps I may first dispel possible confusion about there being two amendments in my name, one of which has been withdrawn. They were grouped together. I shall move Amendment No. 373A, to which I shall speak, and withdraw Amendment No. 411. I withdraw it because it was pointed out to me that Amendment No. 411 was a wrecking amendment. I do not wish to wreck the remains of the Bill and I am sure that the Government feel that sufficient damage has already been done to it.

The amendment would continue my campaign to find a mechanism to distance the NHS from the day-to-day interference from Whitehall.

The noble Lord, Lord Clement-Jones, referred to sporting analogies. My game is not so much one of rugby; it is more a game of tennis with long, boring, monotonous rallies. I gave your Lordships a health warning that I would bore for Britain and I fear that I am getting rather good at it. But I am encouraged because in Committee the Minister, in his courteous reply to me, said: I sympathise entirely with the noble Baroness's wish to avoid excessive central interference in the running of the NHS".

He went on to say: I am sure we can all agree with that overall intention".

He also said that it is an idea, which I freely acknowledge has had appeal in many quarters over many years.—[Official Report, 7/10/03; col. 168.]

He later said that: the rationale… has always been the same; to improve the quality of NHS management by removing it from nefarious political micromanagement".—[Official Report, 7/10/03; col. 169.]

The Minister cited previous commissions and inquiries, which after discussion rejected the idea, beginning with the Guillebaud report in 1950. But in 1950 we were recovering from the Second World War and we were still coping with rationing. He went on to quote the Royal Commission of 1979. In 1979 we were still in the grip of the trade unions and the noble Baroness, Lady Thatcher, was elected Prime Minister for the first time. Clearly, her priorities were to get the economy right and sort out the trade unions.

The Minister then quoted Sir Roy Griffiths. I worked with Sir Roy Griffiths as a member of the NHS Policy Board. Sir Roy relied on the regions to act as the umbrella to safeguard the service through the flak raining down from above and to prevent the NHS from causing problems upwards to Ministers. As a regional chair, I remember the pressure and the unpopularity, but I believe that we were a useful service. However, regions are no longer with us. My point is that quoting the past is not always helpful in that the climate, the environment, the altitudes and the priorities were different 20 years ago.

Later in the debate, I asked the Minister what the Government meant by "devolution". He replied: We are trying to give more local autonomy and freedoms to manage assets and design services around the needs of local people".—[Official Report, 7/10/03; col. 198.]

I thought that that was an admirable definition, especially as I did not give notice of the question. That is exactly my intention, but I recognise that I have tried to proceed too quickly: too quickly for a Government who have had such a recent conversion from centralised control to the merits of local autonomy within the NHS.

When in Committee, noble Lords debated the concept of an agency. The Minister expressed fears that the new agency would itself impose a centralised model of control over the whole system. I find that strange when the Government have set up 192 different agencies in other areas of their former responsibilities. Despite some early struggles, they appear to work well.

However, I recognise that my impatience has not been helpful. I need to pace these reforms in order to win government support. There are many other people, within Parliament and beyond, who share my intentions and methods, not least the independent King's Fund of which I am a senior associate. As the Minister will be aware, the noble Lord, Lord Haskins, chaired a group at the invitation of the King's Fund which made sensible recommendations advocating an NHS agency for England. Tomorrow, the noble Lord, Lord Haskins, is due to publish his review of Defra, which advocates the principle of greater separation between responsibility for policy development and implementation. The noble Lord is convinced that this will improve delivery, accountability and clarity of roles and responsibilities. I know that he sees this work as a parallel with the NHS.

On 30th October, the Secretary of State for Health, Dr John Reid, appeared before the Health Select Committee and gave a commitment to "look" at the members of staff working in the arm's length health and social care agencies as well as "their role". My amendment builds on this commitment. I seek to expand the remit of such a review and, most importantly, ensure a more independent perspective on the questions raised. I believe that the model provided by the review of rural policy undertaken by the noble Lord, Lord Haskins, will provide an excellent template for an appropriate approach to a comprehensive review of the Department of Health and the public bodies, including executive and non-executive bodies associated with the NHS.

The Secretary of State clearly does not want the NHS to be managed from Whitehall but he wants Whitehall to ensure that realistic national standards are set and achieved. He seeks the commitment of NHS staff and wishes to ensure enough freedom for them to innovate and be responsive to patients' needs. That is a tricky balance and it requires three things: realism when it comes to managing public expectations; staff and public ownership of standards and targets; and a system to ensure clear and separate accountability for policy and delivery. It takes more than devolutionist intentions to achieve a new and better relationship between government and the NHS.

In conclusion, I welcome the Secretary of State's intention to hold a review of the newly restructured Department of Health and the myriad of new arm's length bodies spawned by the Government in both health and social care. The pity of it is that the review is to be conducted by the department itself, and it is hardly a disinterested bystander. I believe that keeping the review narrow and in-house and identifying the problem and the solution before the work has started gives a startling illustration of the problem.

The remit needs to be broadened. The review needs to take into account the relationships between government, the Department of Health, Parliament and non-governmental public bodies, including the possibility of an NHS agency for England. It needs to be independent; it needs to be transparent; and it needs to be modelled on the lines of the review undertaken by the noble Lord, Lord Haskins. I beg to move.

Earl Howe

My Lords, I congratulate my noble friend on introducing her amendment so eloquently. In the course of our Committee debate on her earlier amendment, many practical issues were raised about how an agency would work. More recently, we have had the interesting publication by the King's Fund. That publication takes the thinking further but it is still not a blueprint. All who have thought about this matter know that many issues require further debate.

I believe that my noble friend's amendment presents an elegant way forward. The details of delivery, scrutiny and accountability of healthcare are most intimately known by the Government and the Department of Health. By asking the Secretary of State to order a review of those matters for all the elements of the public sector involved in healthcare and by including the case for an NHS agency, we have an excellent opportunity to take the debate to another level. It will be a level that is informed by practical knowledge of operating the current system.

Lord Clement-Jones

My Lords, I support the noble Baroness, Lady Cumberlege, in her Amendment No. 373A. I confess to having felt considerable scepticism in Committee about a charge towards an NHS agency or NHS plc. I looked on it as a potentially monolithic approach to reform of the health service. However, what has emerged from that debate has considerable merit, particularly in the way in which it is phrased, talking, as it does, about the review of the delivery, scrutiny and accountability arrangements of the Department of Health.

Even during the past five or six years, we have seen considerable changes in the Department of Health. When I first became health spokesman, we had a Permanent Secretary and a chief executive of the NHS, and those two jobs were different. Then, of course, came the merger between the two jobs and I believe that that has had a considerable impact on the micro-management aspect of the NHS. The review would tease out precisely whether that is the best arrangement for the future. As the noble Baroness mentioned, the Government are conducting their own review and it is a fairly radical one, as the noble Lord, Lord Warner, has reminded us on Report.

The other aspect of the amendment that I particularly welcome is the fact that it would review the system of regulation. We have dwelt, not only in Starred Questions but also during debates on the Bill, on the question of the sheer volume and weight of regulation currently in the health service with so many bodies entitled to inspect, regulate, enter upon NHS premises, and so on and so forth. The amendment would provide for a valuable review of all of that and of whether consolidation of regulation could take place. That, again, would be an enormous advantage. If nothing else, it should propel the Government into some sort of consideration of the track down which they are going as regards regulation, which seems to become ever more complicated as the number of bodies created multiplies, not least as a result of the Bill.

9.30 p.m.

Baroness Finlay of Llandaff

My Lords, some powerful points have been made in support of the amendment, which I also support. I congratulate the noble Baroness, Lady Cumberlege, on the re-wording of the amendment. I had my name added to the previous one and, if I had had time, would have added it to this eloquently worded amendment. I shall not reiterate the arguments. I have a great fear that the number of bodies being created will cause overlap and gaps in the aspects of the service they inspect, which such a review may well identify.

On a much lighter note, one talks about a twinkle in the eye prior to conception. I begin to wonder whether the regulator is the twinkle in the eye. This is an independent body. It seems to be set up quite separately. I wonder whether we may find in future years that the regulator is the germ from which the independent NHS agency may eventually grow to leave us with less political interference in the NHS.

Lord Warner

My Lords, no one can but admire the consistency and persistence of the noble Baroness, Lady Cumberlege, in this area. I pay tribute to her willingness to run a marathon. Perhaps I may gently suggest that whatever training schedule she undertakes, even one as demanding as that of Paula Radcliffe, I am not sure that at the end of it she will necessarily have convinced us in this particular area.

I am grateful to the noble Lord, Lord Clement-Jones, for his views on the radicality of the Department of Health review and the review of arm's length bodies. All I would gently say to people who ask for an independent review is that it is fairly common practice in the public and private sectors for organisations to review themselves before turning themselves loose on an independent review. It is common practice to take stock of where you have got to in the history of your activities to see whether you should change practice. That is what the Government are doing as regards the Department of Health review and the review of arm's length bodies.

Although Amendment No. 373A would not establish an agency, it would make it a requirement for an independent review to be carried out on the delivery of the Government's health policies, including the case for setting up an agency. It will not surprise noble Lords that the Government think that it is for Parliament to debate the arrangements for the delivery, scrutiny and accountability of the Government's health policies. That is just what this House and another place have done during the passage of the Bill in relation to the creation of NHS foundation trusts.

I also remind the noble Baroness of the existence of the Select Committee on Health, whose function as defined in its terms of reference is to examine on behalf of the House of Commons the expenditure, administration and policy of the department and its associated bodies.

How would a review into how this Government deliver, scrutinise and account for their health policy be any different to those reports already undertaken by the health Select Committee? There is also the issue of stability, which we tried to put on the record at the last discussion of this issue. How will a review within 18 months of commencement of the first provisions of the Act—or, indeed, according to this wording, possibly within 18 months of the commencement of the last provision of the Act—help to create stability for people working within these organisations, and for those on the outside? That would be a destabilising move. The requirement that the independent review look into the case for setting up an NHS agency is a matter for the Government. I believe that in Committee I set out good reasons why such an agency was not necessary. I do not intend to repeat those reasons over and over again. I would just briefly say that the issue of accountability to Parliament is for Ministers.

Secondly, there is the possibility—and I repeat this despite the fact that it is unacceptable to one or two Members of your Lordships' House—that an NHS agency could create just the kind of centralised model of control over the NHS that we all do not wish to see. One cannot guarantee that setting up that agency would not have that particular effect.

We do not believe that it is right to move in the direction—

Lord Clement-Jones

My Lords, I am absolutely fascinated by the Minister's analysis. Can he answer this question. How many NHS reform Bills have there been since the Government came to power? The Minister was talking about creating instability and so on. That does not seem to have been a consideration of any previous Secretary of State.

Lord Warner

My Lords, the sinner who repents, I would have thought, should be welcomed in this House.

Amendment No. 373A would require us to carry out a review within 18 months of commencement of the Act. We do not think that that is appropriate. On the point raised by the noble Lord, Lord Clement-Jones, about reducing the number of regulatory bodies, the Bill reduces the number of bodies which inspect and review health and social care. As we have said on previous occasions, there is the Better Regulation Task Force, to which the Government will be responding before the end of the year.

Baroness Cumberlege

My Lords, I thank my noble friend Lord Howe, the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Finlay, for supporting the amendment. Noble Lords will remember that when we discussed this issue in Committee only one noble Lord, besides the Minister, rejected the concept.

I like the idea of the regulator being the twinkle in the eye. I am sure that that will attract many people to the post. The purpose of the review is to sort out the relationships between Parliament, between government, between regulation, and between all the new bodies that have been set up. The noble Lord, Lord Clement-Jones, is absolutely right. From time to time we get more bodies added. Yet, it is like Topsy; we do not know where it is going, how it is growing or what the implications will be when it is seen as a whole.

I reject totally the Minister's suggestion that it is only for bodies to look at themselves internally, especially when they are accountable to the nation as a whole. I think the noble Lord has only to look to see what Defra has done. An independent body was set up under the chairmanship of the noble Lord, Lord Haskins, to do something which the Government clearly thought was very sensible indeed.

We think that perhaps the National Health Service has an even greater role to play in the nation's affairs than Defra. The National Health Service affects so many lives. It seems to us right that this internal review should take place. I shall think very seriously before bringing the matter back at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 121 [Power to assist]:

Lord Warner moved Amendment No. 374:

Page 54, line 3, leave out "body" and insert "authority

The noble Lord said: My Lords, Amendments Nos. 374 and 375 are technical amendments designed to ensure that, as was always intended under Clause 121, CHAI and CSCI might provide assistance to individual persons such as Ministers or inspectors of schools.

Amendments Nos. 374 and 375 remove the reference to a "public body" and replace it with a reference to "public authority". Parliamentary counsel advised that there was a risk that "public body" could be construed as referring only to corporate bodies, and exclude individual persons such as Ministers. "Public authority" ensures that individual persons are included. As I said in earlier debates, that will allow the Secretary of State to ask CHAI and CSCI to work with other inspectorates on work such as the street crimes initiative. I beg to move.

On Question, amendment agreed to.

Lord Warner moved Amendments No. 375 and 376:

Page 54, line 4, leave out "body" and insert "authority

Page 54, line 5, leave out subsection (2).

On Question, amendments agreed to.

Clause 126 [Reports: CHAI]:

Earl Howe moved Amendment No. 377:

Page 56, line 5, at end insert—

( ) a statement showing the ways in which the CHAI has taken steps during the year to minimise the regulatory impact of its activities.

The noble Earl said: My Lords, I shall speak also to Amendment No. 378. The amendment reprises in a slightly different form the case that I attempted to make in Committee that CHAI and CSCI should be required as a statutory discipline to demonstrate that they are making conscious efforts to minimise the burdens that they place on those whom they inspect and audit.

The Minister made some powerful points in Committee and Sir Ian Kennedy has said some encouraging things about ensuring that CHAI does not descend on an organisation when it does not need to. We can only welcome that approach. Nevertheless, we will not always have Sir Ian Kennedy at the helm of CHAI. The best run organisation can easily start to slip backwards and adopt less than desirable habits.

The principles of good regulation—which are not the same as economy, efficiency and effectiveness— should be followed by every regulatory body, year in and year out. Those principles are transparency, accountability, proportionality, consistency and a duty to act only where necessary. To require the body to state in its annual report the ways in which it has sought to adhere to those principles—in other words, the practical steps that it has taken to do so—does not seem a great deal to ask.

The Minister said that he would read my previous amendment and consider whether anything more needed to be done in the light of the Better Regulation Task Force report. I look forward to hearing what he has to say in that regard. I beg to move.

Baroness Howarth of Breckland

My Lords, although accepting that all regulation must be efficient and effective, I hope that the noble Earl does not assume that inspection and regulation always have a negative impact. We should also recognise the value and benefits to service users; we should not always consider the difficulties caused but also the benefits in quality and improvement of service.

Lord Warner

My Lords, as the noble Earl said, in Committee, we debated amendments that would have required CHAI and CSC1 to publish updated regulatory impact assessments showing the effect of their activities on the bodies that they regulate. As I mentioned during that debate, the Better Regulation Task Force report on independent regulators recommended that all regulators should make available for scrutiny a regulatory impact assessment on all new major policies or initiatives. It did not, though, recommend an annual regulatory impact assessment.

I then offered to consider further what we might be able to do in light of the report. The Government will be responding to the report before the end of the year and will probably begin to implement the recommendations that we accept during 2004.

In the case of CHAI and CSCI, if the Government decide to accept the task force's recommendation in relation to a regulatory impact assessment for new policies and initiatives introduced by regulators, my view is that that will not require an amendment to the Bill. Instead, under Clauses 128 and 129, the Secretary of State could direct CHAI and CSCI to have regard to the Government's response to the Better Regulation Task Force report, if that was felt necessary to ensure that the commissions did so. We are already considering whether we can indicate our likely response to that particular recommendation in relation to CHAI and CSCI.

The new amendments as tabled would require an annual statement about the activity of the inspectorates. It could be an additional burden on the regulated bodies. As I said, the Better Regulation Task Force has not recommended that, and, in my opinion, it would be unnecessary. In any event, the inspectorates could include in their annual reports any information about regulatory impact that they deem necessary to carry out their functions under the current provisions in the Bill.

Earl Howe

My Lords, I thank the Minister for that helpful reply. I had hoped that the merits of such an amendment might be seen as self-evident, not just for the sake of businesses and voluntary organisations, important as they are, but for the good of the NHS. I take absolutely the point made by the noble Baroness, Lady Howarth; the impact of CHAI and CSCI should not be measured purely in negative terms. On the contrary, I am the first to recognise that they will be a force for good. There is an issue about burdens, but I shall not press the point. I am glad that it has been registered. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 127 [Reports: CSCI]:

[Amendment No. 378 not moved.]

Clause 128 [Duty to have regard to government policy: CHAI]:

[Amendment No. 379 not moved.]

Clause 129 [Duty to have regard to government policy: CSCI]:

[Amendment No. 380 not moved.]

Lord Warner moved Amendments Nos. 381 and 382:

After Clause 137, insert the following new clause—


  1. (1) The CHAI must prepare and publish a code in respect of the practice it proposes to follow in relation to confidential personal information.
  2. (2) The code must in particular make provision about the CHAI's obtaining, handling, use and disclosure of confidential personal information.
  3. (3) Before publishing the code, the CHAI must consult such persons as it considers appropriate.
  4. (4) The CHAI must keep the code under review and, if it considers it appropriate, from time to time publish a revised code (and references in this section to the code include any revised code).
  5. (5) For the purposes of this section "confidential personal information" means information which—
    1. (a) is obtained by the CHAI on terms or in circumstances requiring it to be held in confidence; and
    2. (b) relates to and identifies an individual."

After Clause 137, insert the following new clause—


  1. (1) The CSCI must prepare and publish a code in respect of the practice it proposes to follow in relation to confidential personal information.
  2. (2) The code must in particular make provision about the CSCI's obtaining, handling, use and disclosure of confidential personal information.
  3. (3) Before publishing the code, the CSCI must consult such persons as it considers appropriate.
  4. (4) The CSCI must keep the code under review and, if it considers it appropriate, from time to time publish a revised code (and references in this section to the code include any revised code).
  5. (5) For the purposes of this section "confidential personal information" means information which—
    1. (a) is obtained by the CSCI on terms or in circumstances requiring it to be held in confidence; and
    2. (b) relates to and identifies an individual."

On Question, amendments agreed to.

Lord Skelmersdale moved Amendment No. 383:

Before Clause 146, insert the following new clause—


Notwithstanding the provisions of section 191(5), the first regulations under this Part shall be made in a draft of the regulations laid before Parliament and approved by a resolution of each House of Parliament.

The noble Lord said: My Lords, in moving this amendment, I shall speak also to the consequential amendment to Clause 191. As I forecast at the time, we have learnt quite a lot more about the Government's proposal to extend the scheme for the NHS treatment cost element of successful motor insurance claims to employers' liability, personal liability and product liability. As we learned it at a time when most sensible people were tucked up in bed, we were perhaps not quite as responsive as we might have been.

We know well how the current scheme operates. So far as concerns this amendment, we now know two things about the new scheme. It will take not one but nine different statutory instruments to operate it. When I spoke in Committee, it was eight, but the Government in their wisdom—I accept their wisdom—will very shortly add an extra set of regulations in Clause 189, under Amendments Nos. 385D and 385F.

We know that the provisions will not come into effect until after the Department for Work and Pensions has completed its review of employers' liability. As the noble Lord, Lord Warner, said, that will be in the autumn. Armistice Day is upon us, and by my calendar, he has just three weeks to deliver. Given that it has taken four years just to agree with the Law Commission that the extended scheme is justified, the prognosis cannot be good. Even if the Department for Work and Pensions report is produced soon, it will take time for the department to consider it and then to draft the orders. Most importantly, the longer the operation takes, the more need there will be to scrutinise the orders properly. As we all know well, praying against them is a hit-and-miss affair, especially as noble Lords' attention will naturally be elsewhere after the Gracious Speech.

When the Bill arrived here, all eight orders were to be made by negative resolution. The Select Committee on Delegated Powers and Regulatory Reform commented adversely on two of them, and the Government graciously conceded. They moved amendments in Committee to say that the Secretary of State may not alter the exempted payments in Schedule 10 without laying an affirmative instrument—one of the things that I called for in an amendment in Committee. When I asked for all the eight regulations to be affirmative, not surprisingly, given that my proposal was overkill, I got a dusty answer from the Minister. That said, he opened the door just a chink for this amendment by moving that the first regulations made under Clause 149(2), which covers the information required in the certificates needed to operate the new scheme, would be made by affirmative resolution.

So far, so good—but not good enough. Regulations are to govern the appeals procedure under Clauses 153, 154 and 155. Regulations are to govern the provision of information under Clause 156. Regulations are to be made regarding the method of payment to individual hospitals or ambulance trusts, under Clause 158. More are to be made covering lump sums, periodical payments and so forth. Yet more are to be made to limit the liability of insurers.

As if that were not enough, regulations are to be made regarding treatment at non-health service hospitals. According to evidence given to the Select Committee, this last is likely to come on stream long after the others. Now there are regulations to govern qualifying claims under the new subsection. How can the Minister say that they all exist? I also challenge him to say that those that exist now will not differ by virtue of extending the scheme. I beg to move.

Lord Warner

My Lords, the fact that we were able to offer what seemed to the Government to be a pragmatic response to the concerns of the Select Committee on Delegated Powers and Regulatory Reform about Clauses 146(12) and 149(2) does not mean that we conceded anything in any way with regard to the regulation-making powers elsewhere in Part 3.

The Select Committee was concerned about two specific issues. One was that the powers in Clause 146(12) could expand the scope of the scheme, and the other was that the powers in Clause 149(2) included setting the tariffs for the new scheme. The Select Committee felt that those issues merited the closer scrutiny attached to the affirmative resolution procedure, and the Government were content to offer a compromise solution in response to those concerns.

With hardly any exceptions, the other regulation-making powers in Part 3 simply reflect powers that already exist in the Road Traffic (NHS Charges) Act 1999. Regulations made under that Act are all subject to the negative resolution procedure. I find it difficult to understand why the noble Lord feels that that is inappropriate to this Bill, given the exceptions on which we have already made concessions.

I see no reason why this House and the other place need to get involved in debates on the technical details of such a scheme. We would be spending time not on matters of principle but on the minutiae of the scheme's operation—arrangements that, in many cases, have already been thought through in relation to the road traffic scheme and operate perfectly well. Noble Lords opposite always complain about the Government micromanaging the NHS—a suggestion that we refute. Now, they seem to want to bring Parliament into the micromanagement business.

The Government have recognised the legitimate concerns of the Delegated Powers Committee and have responded to them. If the Select Committee is content for the majority of powers in Part 3 to remain subject to annulment procedures, I can see no reason why that should not also be good enough for the rest of your Lordships.

I have already given the reasons why the Government do not accept Amendment No. 383. It would also be illogical to accept Amendment No. 409. To do so would be to backtrack on our commitment to the Delegated Powers Committee on Clause 149(2). We cannot accept either of the amendments.

Lord Skelmersdale

My Lords, it seems to have escaped the Minister's notice that the reason we are suspicious is that the scheme is being changed. The Minister was good enough just now to say that, by virtue of the change, many of the nuts and bolts, I think he said—

Lord Warner


Lord Skelmersdale

"Minutiae"—that will do very well. He said that they were already reflected in existing regulations but, none the less, these things will change. We simply do not know what will happen. I recognise that my second amendment was purely consequential and that my first amendment was defective, which the Minister did not tell me. I shall read carefully what he said and we shall decide whether to come back to this issue for a final push at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 146 [Liability to pay NHS charges]:

Baroness Finlay of Llandaff moved Amendment No. 384:

Page 64, line 28, at end insert—

( ) This section does not apply in cases of clinical negligence.

The noble Baroness said: My Lords, extending the proposed NHS costs recovery scheme to clinical negligence cases will be counter-productive. It will damage the morale of clinicians and is liable to add further to the cost of NHS bureaucracy, with no hope of any savings. General practitioners work without the full range of expert diagnostic equipment. Not surprisingly, delayed diagnosis claims are the most common in primary care. A delay in diagnosis can be negligent, but it is misleading to describe it as "wrongdoing", as it was described in Committee. It is an error that occurs despite a GP's best efforts to help the patient. Under the scheme, in a delayed diagnosis case, a GP could be liable to pay a hospital tens of thousands of pounds, with a hospital doctor as the arbitrator of the cost of treatment. That is likely to damage relationships between hospitals and community doctors and damage morale further.

Disease is specifically excluded from the proposed recovery scheme because the Department of Health has accepted that it would be difficult to quantify the cost due to the complexity of the treatment path and the period of treatment. Inclusion of clinical negligence within the scheme would create exactly the same problems. By its very nature, clinical negligence occurs from the clinical management of a pre-existing condition or disease. Determining the proportion of costs, which should be attributed to treatment of the original disease as against treatment resulting from the negligent act, would be a lengthy and complex process and could cost the compensation recovery unit more money in terms of bureaucracy than it would raise.

In effect, general practitioners are small businesses. The burden of the initiative will fall on the GPs rather than the primary care trusts with which they contract. Their situation is therefore different from that of hospital doctors employed in the NHS. Their case should be reviewed in that light.

I apologise that I was not present in Committee for the previous discussions on this part of the Bill, but I was sick. I apologise, too, if I misled the House with my previous comments. I was present for the earlier parts in Committee, but I did not speak to the clauses which we recently discussed.

Lord Warner

My Lords, perhaps I may gently remind the House and the noble Baroness that, as presently constructed, the costs recovery scheme will provide £150 million per year for patient care within the NHS. We do not accept that including clinical negligence in the costs recovery scheme will set one doctor against another. Costs recovery is contingent on a successful compensation claim being made. There is no reason to suppose that hospital doctors treating a patient who has made or subsequently makes a claim against a GP will know anything about that claim unless and until they are asked to provide a clinical opinion in relation to the claim itself.

They are highly unlikely to be asked to provide any information for the purposes of NHS costs recovery if the claim is successful. That information is purely factual and generally is provided by clerical staff, not clinical staff. That being the case, it is difficult to understand how it can be seen as detrimental to open reporting or damaging to doctors' morale. At present, under the road traffic NHS charges scheme, all a trust has to do is confirm that the patient received treatment at a hospital run by that trust, on what dates, and whether the treatment was given on an in-patient or an out-patient basis.

Doctors rarely even know that NHS costs recovery is taking place, nor does the driver against whom the claim is being made. It is largely an administrative matter dealt with by the insurers. In most cases, it is unlikely that the situation will be any different either for hospital doctors or for GPs under the extended scheme.

It is also not right to suggest that clinical negligence is related only to pre-existing conditions or diseases. Failed sterilisations, hip operations or emergency operations to set broken limbs that go wrong are just a few examples of potential clinical negligence claims that have nothing to do with pre-existing conditions.

I shall not go through all the other arguments against this amendment, but I have outlined the main points. If general practitioners and other primary care providers make mistakes or if they fail to the extent that a patient or anyone else to whom they owe a liability has had to have hospital treatment to put matters right, then how can it be wrong for them to have to bear the proper cost of their negligence? Having said that, it is not, of course, GPs who will usually bear the cost; rather it will be whatever professional indemnity organisation they belong to, so it is not right to say that the additional costs per se will fall on GPs themselves.

We do not think that the amendment is appropriate and I hope that, in the light of the arguments that I have outlined, the noble Baroness will feel able to withdraw it.

10 p.m.

Baroness Finlay of Llandaff

My Lords, I thank the Minister for his reply, but I must admit that I have not been convinced by his arguments on negligence. I can see how a road traffic accident may be clear cut, and that clerical staff may provide the information, but certainly in clinical practice, a delay in or failure to make a diagnosis is an all too common occurrence. Such cases are often negligence where someone has failed to put together all the pieces in the jigsaw and reach the diagnosis—which may be a barn door diagnosis and quite clear.

A further difficulty arises in the failure of bones to heal after fracture. That may not be due to negligence, but perhaps because the patient's clinical condition mitigates against healing taking place or, indeed, that the patient's activities have mitigated against healing.

It would be inappropriate to pursue this matter on Report, but I would like to discuss it with the Minister away from the Floor of the House. It may be helpful if we set up a meeting to discuss some of these issues in more detail. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 385 not moved.]

Clause 149 [Information contained in certificates]:

Lord Warner moved Amendment No. 385A:

Page 68, line 17, at end insert "or regulations under subsection (8B)

The noble Lord said: My Lords, those who took part in the Committee debate on Part 3 during the middle of the night will be aware that the noble Lord, Lord Hunt of Wirral, made a number of interesting and important points about the way in which personal injury claims are resolved these days. He argued persuasively that in a climate where the courts are busy encouraging the parties to a claim to try or at least to think about other ways of dealing with it, there was a case for considering whether some of the alternative dispute resolution procedures, in particular mediation, ought to be included among the processes that could be accepted as a means of confirming contributory negligence findings for the purposes of calculating NHS costs.

Arguably, by focusing on a range of court-endorsed processes, the Bill could be perceived as working against the drive in other parts of government to move away from dependence on the court system. I agreed to discuss the noble Lord's concerns with him in a separate meeting, but by the time that meeting took place, as a result of further research and consideration of his points, the Government had already reached the view that his arguments were sound and that it would be right to include mediation in the Bill as another acceptable means of identifying contributory negligence within a settlement.

These amendments give effect to that decision. Amendments Nos. 385D and 385F allow mediated agreements to be taken into account where they meet prescribed criteria. Amendments Nos. 385A, 385B, 385C and 385G are consequential on Amendments Nos. 385D and 385F.

One issue that we shall need to guard against is the risk of creating an unintentional loophole that would allow some less scrupulous compensators to abuse the mediation process just to get an exaggerated agreement on contributory negligence or, indeed, where both parties to the dispute might collude to do so. It was to avoid that kind of problem that we originally felt that formal court endorsement of the arrangements was necessary.

To be able to protect against it in mediated settlements, the amendments have been framed so as to give the Secretary of State and the Scottish Ministers powers to prescribe in regulations various aspects of the mediation process. We are still looking at the best way to do this but it might include, for example, specifying the qualifications of the mediator, or the nature of the process or its outcome that would be acceptable, as well as setting out exactly what evidence would need to come from the mediation in relation to contributory negligence. It would not be enough for the mediation report simply to say, "The parties agreed that there was an element of contributory negligence and this has been taken into account". There would need to be an explicit indication of the extent to which it had been taken into account.

Nevertheless, although there are still some quite important issues that we will need to consider further when drafting the regulations on this, the Government are now satisfied that, in terms of principle, including mediation is the right thing to do. I beg to move.

Lord Hunt of Wirral

My Lords, I thank the Minister not only for what he has said tonight but also for the speedy way in which he made himself and his officials available for urgent consultation. I am grateful for the manner in which he has come forward with these amendments.

I accept that there is a need to guard against abuse and I share his resolve to ensure that there is no loophole. I also welcome the way in which he has framed the amendments because it is necessary to ensure that the mediation is of a prescribed description. As he will know, I shall be arguing that there are a number of kinds of alternative dispute resolution that should be recognised, but I agree that it is only when it is carried out under the guidance of a fully accredited mediator that one can have confidence in the process. I thank the Minister for the way in which he has come forward so quickly with these amendments.

Lord Skelmersdale

My Lords, I can well understand why my noble friend Lord Hunt is so pleased with the Minister's actions in this regard. I am, too. But, to put a little barb into the Minister, I should say to my noble friend that I hope he remains alert because the regulations referred to in subsection (8B) of Amendment No. 385D will be introduced by negative resolution.

On Question, amendment agreed to

Lord Warner moved Amendments Nos. 385B to 385D:

Page 69, line 31, after first "under" insert "or by virtue of

Page 69, line 46, at end insert "or regulations under subsection (8B)

Page 70, line 9, at end insert—

"(8A) For the purposes of subsection (8B), a claim made by or on behalf of an injured person is a qualifying claim if—

  1. (a) it is settled by mediation of a prescribed description, and
  2. (b) the damages payable under the settlement are to be reduced to reflect the injured person's share in the responsibility for the injury in question.
(8B) Regulations may make provision as to the circumstances in which the amount (or amounts) specified in a certificate relating to a qualifying claim is (or are) to be that (or those) which would be so specified apart from the regulations, reduced by the same proportion as the reduction of damages."

On Question, amendments agreed to.

Lord Hunt of Wirral moved Amendment No. 385E:

Page 70, line 16, at end insert—

( ) Before making any regulations under subsection (2), the Secretary of State or the Scottish Ministers (as the case may require), or both, shall consult with such persons as they think appropriate."]

The noble Lord said: My Lords, in moving the amendment, perhaps I may take a more formal opportunity to thank the Minister for meeting with my colleague Paul Parke of Beachcroft Wansbroughs and I, together with Alistair Kinley, Policy Adviser, Liability, with the Association of British Insurers. During the course of that meeting—and in a letter which I understand has been placed in the Library— the Minister very kindly set out in some considerable detail his response on a number of points.

The members of the Association of British Insurers will be greatly reassured that the Government have clearly restated their intention not to extend the recovery of NHS treatment charges retrospectively and, moreover, that insurers will be consulted as and when implementing regulations are to be drafted and when any changes are subsequently made. It is also very helpful that the Minister has made it absolutely clear that this will not happen until after the employment liability reviews are completed.

However, I seek to draw the Minister further. When we debated the issue of consultation in Committee, the Minister said that it goes without saying that the Government would consult. I know "it goes without saying", but it would be helpful and reassuring to have the Government's commitment now to consultation, not only with members of the Association of British Insurers but also with all interested parties.

I am also greatly reassured that the Minister has set out what I believe is the Cabinet Office's code on written consultation. I have not yet had the opportunity to peruse this code, and it would be helpful if the Minister could make it available to me. I am sure there is probably a fast route to obtaining it, but it would be helpful to see it between now and Third Reading. On the basis of the reassurances that I know the Minister is about to give, I do not think it will be necessary to press this amendment. I beg to move.

Lord Warner

My Lords, I am grateful to the noble Lord for his comments; I understand why he was concerned. As I said to him when we met and discussed the matter, the Department of Health, like every other government department, is fully committed to the principles, practices and, indeed, the spirit of the Cabinet Office's code of practice on written consultations. I will endeavour to let the noble Lord see a copy of that code of practice as soon as possible.

The code makes clear the expectation that consultation should take place on any matter which would have an impact on business, charities and voluntary organisations or the general public. The regulations governing the operation of the NHS cost recovery scheme clearly fall into that category and I can see no reason why the Government would want to go against the Cabinet Office guidance on this. However, the fact remains that the principle of consultation is now so firmly embedded in our collective consciousness that I do not believe it needs to be specified on the face of the Bill. I hope the noble Lord will feel that the assurances I have given, which will cover many of the interests about which he is concerned, will be covered in that consultation process, and that he is able to withdraw his amendment.

Lord Hunt of Wirral

My Lords, I am, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 152 [Review of certificates]:

Lord Warner moved Amendments Nos. 385F and 385G:

Page 72, line 40, at end insert—

( ) Regulations may make provision as to the circumstances in which the Secretary of State or the Scottish Ministers must review a certificate relating to a claim which, after the certificate is issued, becomes a qualifying claim (as defined in section 149(8A)).

Page 73, line 6, after "under" insert "or by virtue of

On Question, amendments agreed to.

Lord Warner moved Amendment No. 385H:

Page 73, line 11, at end insert—

( ) But the Secretary of State or the Scottish Ministers may not vary a certificate so as to increase the amount, or the aggregate amount, specified unless it appears to him or them that the variation is required as a result of his or their having been supplied with incorrect or insufficient information by the person to whom the certificate is issued.

The noble Lord said: My Lords, those who took part in the debate on Part 3 in Committee will recall that the noble Lord, Lord Hunt, spoke eloquently in support of the principle that it would be unfair for compensators who had acted in good faith and provided the scheme's administrators, the Compensation Recovery Unit, with accurate and appropriate information to have to pay the price if the CRU then made mistakes in the processing of that information. Although we were not at that time able to accept the noble Lord's amendments on this matter, I promised him that we would re-examine the issue in the light of his comments. We have kept that promise and, after careful consideration, have been persuaded by his arguments.

This amendment gives effect to our revised view on the matter. It will mean that if the CRU issues a certificate of charges which is subsequently found to be too low because the compensator gave; it incorrect or insufficient information, the CRU will be able to issue a fresh certificate for the correct higher amount. If, however, the compensator gave the correct information but the CRU made a mistake while processing it, no fresh certificate can be issued. I commend this amendment to the House. I beg to move.

Lord Hunt of Wirral

My Lords, again, I am very grateful to the Minister for tabling this amendment, which produces a much fairer situation. In thanking him, may I, through him, also thank his officials who not only were very impressive but showed a remarkable understanding of some very complicated and technical aspects? I commend them for that. I think we do not praise often enough the hard work of officials behind the scenes in seeking to cope with highly technical and rather legal points. We are greatly reassured by the speed with which they were able to handle this matter. Hence this amendment, which I warmly welcome.

On Question, amendment agreed to.

Baroness Andrews

My Lords, I beg to move that further consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.

House adjourned at a quarter past ten o'clock.