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Health and Social Care Bill

moved Amendment No. 72: 72: Clause 136, page 90, line 12, leave out subsection (6) and insert— ““(6) Omit subsection (5).”” The noble Earl said: My Lords, Clause 136 makes it possible for private health providers who are contracted by the NHS to treat NHS patients to join the Clinical Negligence Scheme for Trusts. As noble Lords will be aware, this scheme is administered by the NHS Litigation Authority. The question raised by Amendment No. 72 is whether it is appropriate and right for this arrangement to be voluntary. As the Bill stands, it means that an NHS patient who suffers negligent harm from a private provider may not have access to the same system for redress as an NHS patient harmed in an NHS trust. There is a fundamental issue of principle here, which is that all NHS patients, no matter where they are treated, should be guaranteed the same rights and the same system for obtaining redress. The amendment makes it possible for the Secretary of State to direct that any body which is eligible to join an indemnity scheme by virtue of providing NHS services must join that scheme. In tabling this amendment, I have been advised by Action against Medical Accidents, which has already seen examples of confusion over who is liable for negligent treatment when NHS patients have been harmed by private providers, such as independent-sector treatment centres. This sort of situation quite literally adds insult to injury. If an NHS patient is injured by an NHS trust, his claim is overseen by the NHS Litigation Authority. The NHSLA has a reputation for dealing with claims more expeditiously and, I know AvMA would say, more fairly than private insurers or medical defence organisations. I hasten to say that I am not casting aspersions on my friends in that sector who do a very conscientious job. I am not in a position to agree or disagree with AvMA’s assessment, but the central point of principle remains valid. It would be unfair for an NHS patient who happens to have had his treatment commissioned from a private provider not to be dealt with in the same way as someone who has been treated in an NHS hospital. If the treatment is NHS treatment, liability should reside with the NHS. AvMA tells me that in its experience patients who have to sue private organisations or individual doctors find the process even more stressful than making a claim with the NHSLA. Of course, we always need to think carefully before building into statute any provision that interferes with contractual freedoms. However, which is more important: allowing a private provider to arrange its own indemnity cover and thereby creating unfairness and confusion for NHS patients; or predetermining this aspect of private-provider contracts and by doing so making sure that no NHS patient is disadvantaged or treated differently from any other patient should his treatment happen to go wrong? It is surely not satisfactory to contemplate a situation in which, after negligent treatment by a private provider, an NHS patient is effectively disowned by the NHS and left to seek redress from a large commercial organisation or its insurers. I should add that the amendment would also theoretically make it possible for the Secretary of State to consider extending NHS indemnity to cover GPs, dentists and other primary care practitioners providing NHS treatment. I should make it clear that I am not advocating that idea. It is not the point of the amendment. My concern relates to independent providers of NHS secondary and tertiary care. I should be glad if the Minister could tell us whether she would be willing to look at this issue again. I beg to move.