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Health and Social Care Bill

My Lords, Clause 136 widens the entry eligibility of indemnity schemes created under Section 71 of the National Health Service Act 2006. We intend to open up for trusts a specific scheme, the clinical negligence scheme, that covers healthcare providers for clinical negligence liabilities arising from the provision of NHS care. The clause will extend the potential scope of this scheme so that we can allow non-NHS providers to obtain this cover when delivering NHS care. That is quite clear in the Act. The current legislation allows the Secretary of State to require prescribed NHS bodies to become members of this scheme, because it is right that bodies whose finances are under the control of the Secretary of State for Health may be directed to make such an arrangement. However, Amendment No. 72 would extend this power of direction so that the Secretary of State could also require NHS foundation trusts, let alone independent sector providers of NHS care, to become members of such schemes. If the intention of the amendment is to ensure that all providers delivering NHS care have adequate indemnity cover, I could not agree more with the noble Earl, Lord Howe. However, the amendment is not the right way to achieve this. I am sure noble Lords will agree that the Government should not be able to direct or to seek to manage the day-to-day running of organisations that have greater freedom from government to control their own budgets. Specifying the indemnity scheme that they must join would be micromanaging foundation trusts—a debate that we have had throughout the passage of the Bill—and independent providers to an unacceptable level. Instead, the Government have a responsibility to ensure that every provider delivering NHS care has appropriate arrangements in place to protect patients. I am happy to confirm that, as part of the national NHS contracts, this will be the case. In other words, every contract with an independent provider will set out very clear arrangements for that provider for the indemnity schemes that we may wish to see from them. We will require all of them to have indemnity cover as part of their NHS contract where such risks are present. This means that these providers can choose the type of indemnity cover that best meets their needs, and that patients can be assured that appropriate indemnity arrangements will always be in place. The noble Baroness, Lady Finlay, asked about the definition of episodes of care. I am more than happy to put that in writing, but she touched on something that is also close to my heart. If a patient comes into a hospital and is ill, it is our duty to look after them, irrespective of whether their treatment was private or under the NHS. I therefore do not see that as an issue. I regularly come across issues such as that, and I think that it is most unprofessional to say, ““Actually, you have received this treatment elsewhere””. I will try to address that issue later. The Government are fully committed to protecting the interests of patients harmed by their NHS care. We will not direct financially freestanding organisations such as foundation trusts and others. We believe that, within the context of a contractual obligation, having appropriate indemnity arrangements in place protects patients. I hope that I have explained the position as much as possible, and I very much hope that the noble Earl, Lord Howe, will feel able to withdraw the amendment. If he does not, we can have further discussions before Third Reading.