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Lord Warner: Minutiae.

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Amendment, by leave, withdrawn.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:

"( ) 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.

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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.

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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.

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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.

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