Joint Committee on Statutory Instruments First Report


APPENDIX II

Memorandum by the Department of Health


NATIONAL HEALTH SERVICE (EXISTING LIABILITIES SCHEMES) (AMENDMENT) REGULATIONS 1997 (S.I. 1997/526)

NATIONAL HEALTH SERVICE (CLINICAL NEGLIGENCE SCHEME) (AMENDMENT) REGULATIONS 1997 (S.I. 1997/527)

  The Joint Committee has requested that the Department of Health submit a Memorandum in relation to the above Instruments, dealing with the following point:

    "Given that regulation 6(3) and regulation 9(3) respectively of the principal Regulations refer to `legal and associated costs' incurred by a person, explain why the amendments made to these provisions refer to `legal or associated costs'."
  1. The amendments to regulation 6(3) of the NHS (Existing Liabilities Scheme) Regulations [S.I. 1996/686] and regulation 9(3) of the NHS (Clinical Negligence Scheme) Regulations [S.I. 1996/251] make provision in connection with payments which scheme members agree to make otherwise than in the course of legal proceedings, for instance by way of Alternative Dispute Resolution ("ADR") processes.

  2. Regulations 6(3)(a)-(c) and 9(3)(a)-(c) respectively of the principal Regulations are concerned with payments made in connection with legal proceedings, and therefore envisages that "associated costs" will be incurred together with legal costs. In Appendix VI of the Joint Committee's 13th Report in the 1995-96 Session of the Department provided a memorandum explaining that "associated costs" is intended to include any costs which are reasonably related to the handling or defence of a claim, and illustrating the kinds of costs which might fall within that expression in the context of legal proceedings.

  3. Where ADR is used there may be no legal costs at all, only the costs of the ADR itself, particularly where claimants choose not to engage lawyers to seek redress. Accordingly, provision is made for payments under the schemes in cases where the costs relating to the handling of a claim may not include legal costs, by referring to "legal or associated costs".

18th March 1997


 
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