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Lord Skelmersdale: I wonder what the Delegated Powers and Regulatory Reform Committee has got that I have not got. It is quite clear from its report that it did not consider the vital fact that motor insurance is a compulsory insurance whereas the other two are, to a great extent, optional. That is why I have voiced my worries on what will be in the eight sets of regulations.

The noble Lord, Lord Clement-Jones, spoke about the Government putting the cart before the horse. They have certainly done that. At this stage, we are being asked to buy a pig in a poke. By the end of our discussions, I hope to discover just how much of a pig it is. For now, there is no point in pursuing the matter and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 146 [Liability to pay NHS charges]:

Lord Skelmersdale moved Amendment No. 410:


The noble Lord said: In moving this amendment, I speak to Amendments Nos. 411 and 413. Amendments Nos. 410 and 411 in the name of the noble Baronesses, Lady Finlay and Lady Barker, and the noble Lord, Lord Clement-Jones, are variations of the same theme. Over the past few days, the Committee has been awash with health professionals, whether clinicians or managers, both paid and unpaid. Every one of them knows that clinical mistakes, even disasters, occur from time to time in the diagnosis and treatment of accidents and the diseases associated with them. In those hopefully rare cases, NHS employees are actionable in law and doctors' liability insurance premiums have risen alarmingly in recent years as we have become a much more litigious society. As drafted, the Bill would make the treatment of a patient in one hospital, say a special hospital, for medical mistakes made in another one, liable to NHS charges.

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The only good that that would do would be to push money from one hospital to another. It is a nonsense that the NHS should pay money to itself.

Amendment No. 413 is slightly different but also refers to those bodies outside the NHS who should not be liable to pay. I refer noble Lords to the comments made earlier about the costs of insurance premiums and their increase as a result of the implementation of Part 3. That these extra costs should be borne by not-for-profit organisations, charitable organisations or private sports clubs must surely be wrong in principle. I beg to move.

Lord Clement-Jones: I rise to speak to Amendment No. 411. Subject to the considerations raised in our debate on the previous group of amendments, we generally support the principle of recovering NHS hospital costs incurred treating patients who receive personal injury compensation for an accident. However, extending the scheme to clinical negligence cases could well be counter-productive and liable to set community doctor, primary care doctor and hospital doctor against each other. Under the proposals, a GP working in the NHS who is sued by a patient for a delay in diagnosing a condition that was subsequently picked up by A&E and treated in hospital could be liable to pay tens of thousands of pounds to the hospital. That cannot be the intention of these provisions. The proposals contradict the Kennedy report recommendations on open reporting and are very likely to damage doctor morale. I look forward to hearing what the Minister has to say.

Lord Warner: I would suggest that the NHS is subject to the same health and safety obligations as any other organisation and it cannot be right that it should not be subject to the same penalties if it fails in those obligations. Similarly, the NHS owes a duty of care to the patients, and can and should be brought to task when it fails in that duty of care through negligence. Why should one hospital have to bear the cost of another's failings? The principle is exactly the same for the NHS as for any other compensator. We do not believe that it is inappropriate for one NHS body to have to bear the proper costs of its wrongdoings, even where that means paying NHS charges to another NHS body.

As for general practitioners and other primary care providers, the principle applies just as much. If they have failed 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, or their insurers, to have to bear the proper cost of their negligence? We recognise, however, that it would be bureaucratic stupidity for a hospital to have to pay NHS charges to itself where it is both compensator and the hospital providing treatment, which is why Schedule 10 explicitly excludes from the scheme compensation payments made in those circumstances.

Turning to private treatment, I find the idea that private practitioners should not have to contribute to the costs to the NHS of putting right their mistakes

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even more difficult to understand. I am sure that we have all heard stories of treatment at a private hospital that has gone wrong, with the unfortunate patient having to be rushed to the nearest NHS hospital to have the problem put right. Where a successful compensation claim is made in such cases against the private practitioner, surely it must be right that the practitioner, or rather their professional indemnity organisation, should also pay towards the costs incurred by the NHS.

Moving on to Amendment No. 413, I can readily understand the reasoning behind this amendment. Nevertheless, the fact remains that these organisations are responsible for the health and well-being of those who work for them and make use of their facilities. The principle behind the expansion of the NHS costs recovery scheme is to make those who cause injury to others through their own negligence bear the full range of costs of that negligence. That applies equally to the organisations identified in the amendment as to any commercial or other organisation.

Some of those organisations are pretty substantial organisations employing very large numbers of people. In some cases, they have responsibilities also for volunteers who spend time on fundraising activities. I find it difficult to understand how when these bodies have the same obligations as any other organisation they should not also be subject to the same penalties for failing to meet those obligations, which is all that this particular scheme does. There would also be practical difficulties. The Compensation Recovery Unit currently administers the existing road traffic recovery system and the benefits recovery scheme. We envisage that it would also operate the new expanded cost recovery system, acting on behalf of the Secretary of State and Scottish Ministers as it does now.

The amendment would require the unit to identify the body or organisation on whose behalf the compensation payment was being made by the insurer. At present, that is not information which the Compensation Recovery Unit automatically seeks. It would be a significant additional administrative burden for it to have to do so.

12.30 a.m.

Lord Skelmersdale: I elicited more from this group of amendments than I could possibly have expected. Perhaps the Minister will answer me a simple question. What happens now if an ambulance runs over someone and he or she is treated in an NHS hospital?

Lord Warner: The principles that I have enunciated are exactly the same. It depends whether the compensation payment is made in respect of that action. It depends whether it is a separate organisation from the organisation that is treating the injured person.

Lord Skelmersdale: The trouble with attempting to precis is that rather more is read into my words than I intended. Clearly, I meant a situation in which the ambulance service subsequently has to pay—through

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its insurers—the person that it ran over and that person was treated in an NHS hospital. However, this is not the time of night to get into an argument, although I could pursue this issue quite a long way. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Wirral moved Amendment No. 410A:


    Page 64, line 18, after "person" insert "as the result of an accident"

The noble Lord said: It is probably unnecessary for me to repeat my interest, but I shall place on record that I am senior partner of Beachcroft Wansbroughs, a law firm which deals with a great deal of the work that we are now discussing. I hope that I might be able to assist the Minister to improve some of the provisions. It is in that context that I move Amendment No. 410A, which, together with Amendment No. 417A, would insert the words,


    "as the result of an accident".

Presently, Clause 146(1)(a), states that,


    "a person makes a compensation payment to or in respect of any other person . . . in consequence of any injury, whether physical or psychological, suffered by the injured person".

The words that I seek to insert—


    "as the result of an accident"—

would follow.

The addition of those words is to clarify the intention of the Bill so far as the exclusion of disease claims is concerned. The wording reflects that which has already been adopted and approved by the Civil Procedure Rule Committee in the pre-action protocol relating to occupational diseases. I must tell the Minister that lawyers and insurers alike are concerned at the use of the word "injury" without the qualification which I seek to add. On its own, the word "injury" is not sufficiently clear.

I know that that was the language used in previous legislation. But the legislation concentrated on road traffic accidents where the only likely cause of injury was an accident. As has been discussed in immediate past debates, the Government are now proposing to extend the recoupment provisions to employers' liability and other actions, which makes the risk of misinterpretation much greater. I know that insurers welcome the intention of the Government to exclude occupational disease claims, but I hope that the wording could be clarified so as to remove any uncertainty.

I made the Minister aware of the comments I was going to make in moving these two amendments, and he has kindly written some brief words in response. The problem, however, is that the note which I have just received, and which other noble Lords may not have seen, raises more questions than it answers. In his letter the Minister said:


    "Amendments 410A and 417A would seek to limit the scheme to injuries arising from accidents. A dictionary definition of 'accident' is: 'an event without apparent cause or which is unforeseen'".

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Unfortunately, some injuries can be foreseen or even intended and we do not want them to be excluded from the scheme.

I suppose that any normal person who wanted to know what a word means would rush to the Oxford English Dictionary, but they forget that such is the legal system in this wonderful country of ours—I do not want to be quixotically chivalrous—that it is founded on the basis of ratio decidendi and stare decisis, which means it does not matter what is set out in the Oxford English Dictionary and that all that matters is what the judiciary has interpreted the words to mean over many years.

I have to tell the Minister that to resort to the dictionary to find out the meaning of "accident" is to ignore, I have calculated, 38 cases in the Judicial Committee of the House of Lords which have concentrated on defining the word "accident". Indeed, there is a whole range of cases which seek to interpret the word in a different way from the words "an accident". While I do not want to labour the point, I hope that the Minister will accept from me that, although the dictionary definition appears to be a rational interpretation, it is certainly not the one set out in the House of Lords case of Fenton v Thorley & Co Ltd in 1903 and Warner v Couchman in 1912. Indeed Halsbury's Laws of England states that what is defined by this word is not entirely clear.

Turning to "illness" or "injury", personal injury includes any disease, any harm to a person's physical or mental condition, as well as pregnancy. So far as concerns food legislation, injury includes any impairment, whether permanent or temporary.

What I seek the Minister to acknowledge is that we might think about this a little more deeply than the rather brief dismissal in his letter of the points I sought to make, although I am sure that he did so with the best of intentions. Perhaps I may press him at least to reflect on what I have said and, rather than resort to the Oxford English Dictionary, we might resort to a little considered legal opinion before we set in stone the final wording in Clause 146. I beg to move.


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