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NHS Redress Bill [HL]

The amendment would prevent the scheme specifying circumstances in which cases might be exempt from the obligation to provide an offer of compensation in satisfaction of any right to bring civil proceedings and/or exempt from the obligation to give an explanation. But there may be circumstances in which it is not appropriate for an offer of compensation to be made or an explanation to be given under the scheme. Where a case exceeds the maximum financial threshold under the scheme, it would not be appropriate for an offer of compensation to be made. Should it therefore become apparent when the scheme authority is considering the appropriate level of financial compensation to be awarded in a case that it falls outside the scheme in this way, then it would be appropriate for the exemption from making an offer to apply. The policy intention is that where a case under the scheme falls above the intended £20,000 threshold, that case will not be eligible under the scheme and may be considered by the NHS Litigation Authority under the clinical negligence scheme for trusts. That is the scheme run by the litigation authority for settlement of clinical negligence litigation. There may also be circumstances in which it is not appropriate to provide a comprehensive explanation, for example, where the applicant is not the patient and there may be, as we discussed earlier, unresolved issues around the disclosure of medical records or personal information. The amendment would allow no discretion to enable the secondary legislation to exempt rare cases from the compulsory requirement under the scheme to provide compensation and explanations. In terms of who decides, the Secretary of State will decide after consultation, but regulations will be subject to the affirmative procedure. That is what we are arguing in the structure of the Bill.