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COMMONS AMENDMENT

71

After Clause 39, insert the following new clause--

HEALTH SERVICE COMMISSIONERS

(".--(1) Section 15 of the Health Service Commissioners Act 1993 (confidentiality of information) is amended as follows.
(2) In subsection (1), at the beginning of paragraph (e) there is inserted "where the information is to the effect that any person is likely to constitute a threat to the health or safety of patients".
(3) Subsection (1A) is omitted.
(4) In subsection (1B)--
(a) for "such a case" there is substituted "a case within subsection (1)(e)",
(b) the words following "patients" are omitted.
(5) In subsection (1C), for paragraphs (a) and (b) there is substituted--
"(a) where he knows the identity of the person mentioned in subsection (1)(e), inform that person that he has disclosed the information and of the identity of any person to whom he has disclosed it, and
(b) inform the person from whom the information was obtained that he has disclosed it".").

Baroness Hayman: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 71. This amendment delivers on a commitment that I made during our previous consideration of the Bill. The Health Service Commissioner believes that the current legislation under which he works--the Health Service Commissioners Act 1993--unnecessarily restricts him in disclosing information that he receives. That issue was raised by my noble friend Lord Harris of Haringey. At present there are statutory limitations on the commissioner's discretion to disclose information that he obtains as a result of a complaint which leads him to believe there is a threat to the health or safety of patients. In particular, he has been advised that he cannot disclose information if he decides not to investigate the complaint or if the matter of concern fails to be disclosed in one of his investigation reports. If the commissioner obtains information which suggests that the health or safety of patients is likely to be at risk, he should be able to pass that information on to the appropriate authorities, irrespective of how he chooses to deal with the specific complaint made. This amendment makes that possible.

I reassure the House that this amendment seeks only to remove inappropriate restrictions on the commissioner's existing discretion to disclose information. He is not seeking powers to make more

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general judgments about professional competence and conduct. However, if a complaint indicates a serious threat to the health or safety of patients, it is right that he should be able to pass on appropriate information to those with responsibility for investigating and dealing with that threat.

Subsections (2), (3) and (4) of Commons Amendment No. 71 allow the commissioner to make appropriate disclosure of information where it is in the interests of the health or safety of patients for him to do so. It is equally important that he should not be constrained as to which responsible authorities he can disclose information. The latter half of Section 15(1B) of the Health Service Commissioners Act 1993, as amended, could be interpreted as placing such a constraint on him. Subsection (4)(b) of the new clause removes that element of uncertainty by omitting the list of examples of the type of body which might be passed information.

Subsection (5) of the new clause places an obligation on the commissioner to tell the provider of the information that he has disclosed it. In practice, he already does so, on the very rare occasions when he has exercised his discretion, but we believe it is appropriate to make that explicit.

The amendment clarifies the extent of the Health Service Commissioners' discretion to disclose information in the interests of the health and safety of patients. It responds positively to concerns raised in this House during our initial consideration of the Bill. We have worked closely with the current Health Service Commissioner, Mr Michael Buckley, in drafting the amendment. I confirm that he is happy with it. I commend the amendment to the House.

Moved, That the House do agree with the Commons in their Amendment No. 71.--(Baroness Hayman.)

Lord Harris of Haringey: My Lords, I merely wish to welcome the amendment and say how pleased I am that the Government have been able to bring a provision forward in another place on this issue.

There was an anomaly here. It potentially removed a line of protection for patients. The health service commissioner might come upon circumstances in the course of an investigation that really should be dealt with by some other body, but would be unable directly to pass the matter on. The amendment gives the Health Service Commissioner unequivocally the powers, where the health and safety of patients is at risk, to refer such matters to other bodies. I am delighted that the provision will now be on the face of the Bill.

On Question, Motion agreed to.

COMMONS AMENDMENT

72

After Clause 39, insert the following new clause--

("Rectification of transitional arrangements
POWER TO RECTIFY TRANSITIONAL PROVISIONS ETC

.--(1) The Secretary of State may by order make such provision as he considers appropriate in consequence of the matters mentioned in subsection (2) (the "relevant defects").

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(2) Those matters are--
(a) the omission from Part III of Schedule 2 to the Health Authorities Act 1995 (Transitional Provisions) Order 1996 (which determined the relevant Health Authority in relation to any Family Health Services Authority in England whose locality comprised or formed part of the area of more than one Health Authority) of an entry for Bromley Family Health Services Authority,
(b) the inclusion in Part III or IV of Schedule 1 to that order (which determined the relevant Health Authority in relation to any Family Health Services Authority whose locality comprised or formed part of the area of only one Health Authority) of an entry for any Family Health Services Authority in England or Wales whose locality comprised or formed part of the area of more than one Health Authority (and an entry for which should accordingly have been included in Part III or IV of Schedule 2 to that order),
(c) the omission from column 2 of the entry for any Family Health Services Authority in Part III or IV of Schedule 2 to that order (which together with column 3 of that entry specified the relevant Health Authorities in relation to that Family Health Services Authority) of any Health Authority whose area or any part of whose area forms part of the locality of the Family Health Services Authority and which was not included in column 3 of that entry,
(d) where--
(i) the locality of a Family Health Services Authority and the area of a Health Authority overlap but do not coincide, and
(ii) the Family Health Services Authority had compiled a list of persons residing in its locality,
the treatment, incorrectly, by a Health Authority of a person included in that list as residing, or as not residing, in their area.
(3) Provision that may be made under subsection (1) includes, in particular--
(a) provision amending the Health Authorities Act 1995 (Transitional Provisions) Order 1996,
(b) provision transferring, or adding, the name of any Part II practitioner to any Part II list in which he is (or, at the material time, was) not included because of any of the relevant defects,
(c) provision for treating anything done by or in relation to an acting authority or a person of any description identified by reference to an acting authority as having been done by or in relation to the proper authority or a person of that description identified by reference to the proper authority,
(d) provision for treating anything done by or in relation to an acting authority or a person of any description identified by reference to an acting authority as having been so done in the exercise by them or him of functions on behalf of the proper authority or a person of that description identified by reference to the proper authority.
(4) Any provision made by an order under this section may be made with effect from any date after 31st March 1996 specified in the order.
(5) Provision contained in an order under this section by virtue of section 55(2) may include provision conferring functions on the Secretary of State.
(6) In subsection (3)(b)--
"Part II practitioner" means a person who provides (or, at any time since 31st March 1996, has provided) general medical services, general dental services, general ophthalmic services or pharmaceutical services in accordance with arrangements made or treated as made (or which, but for any of the relevant defects, would have been made or treated as made) under Part II of the 1977 Act,

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"Part II list" means a list kept by a Health Authority under section 29(2)(a), 36(1)(a), 39(a) or 42(2)(a) of that Act (lists of persons providing general medical, general dental, general ophthalmic or pharmaceutical services).
(7) In subsection (3)(c) and (d), in relation to anything done by or in relation to a Health Authority or person identified by reference to a Health Authority--
"acting authority" means the Health Authority by or in relation to whom the thing was done or person was identified because of any of the relevant defects,
"proper authority" means the Health Authority by or in relation to whom the thing should have been done or by reference to whom the person should have been identified.").

Baroness Hayman: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 72. It inserts a clause which allows the Secretary of State to correct deficiencies in an order made in 1996 which made transitional provisions to implement the Health Authorities Act 1995. The 1995 Act abolished family health services authorities and district health authorities and established new successor health authorities.

The deficiencies in the earlier order have the primary effect that no successor health authority was designated to replace Bromley Family Health Services Authority on 1st April 1996. Other deficiencies have meant that in some cases the designation of successor health authorities took no account of various small boundary changes.

It is only a technical oversight which means that Bromley and some other health authorities did not make decisions and payments concerning family health service practitioners in law. However, I should emphasise that patient care has been unaffected and no one will have received money that does not reflect a payment for a service which was provided.

It is not possible to remedy the situation solely by amendments to existing provisions, since that would not provide legal cover for the decisions and payments which have technically been unlawful since 1st April 1996. The clause therefore gives us the power to make a fresh order which will retrospectively amend the deficiencies that have been identified, and thereby validate all the decisions taken and payments made by the "wrong" authority since that date. I commend the amendment to the House.

On Question, Motion agreed to.


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