Clause 71 - Transfer of criminal liabilities of certain
Health Bill
6:45 pm
Caroline Flint (Parliamentary Under-Secretary (Health), Department of Health; Don Valley, Labour)
The need for clause 71 arose following a Court of Appeal ruling in the case of R v. The Pennine Acute Hospitals NHS Trust, formerly Rochdale Health Care NHS Trust. In that case, the Court held that the general power in paragraph 30 of schedule 2 to the NHS and Community Care Act 1990 to transfer property rights and liabilities on the dissolution of an NHS trust did not include the power to transfer criminal liabilities. The Court stated that if it was the intention to transfer criminal liability, the legislation should explicitly say so.
There were clearly issues surrounding the perception that the powers transferred criminal liabilities. In a test case the judge decided that they did not, and that is why we have brought forward this clause. I have had discussions with officials about its wording, and when we were considering the issue and addressing the problem highlighted by the Court of Appeal, we thought that it might be necessary to provide a power to transfer criminal liabilities only for those NHS bodies that deliver front-line services—those bodies that could realistically face criminal prosecution in connection with the front-line services that they deliver to patients.
In the case of a strategic health authority, for example, it was difficult to envisage a case in which it might face criminal proceedings about patient care. However, as our thinking developed, we thought that it might be necessary to transfer the criminal liabilities of a front-line body to a strategic health authority when there was no logical or obvious successor to which the powers could be transferred. It means that in the course of natural justice for individuals, any such liabilities that might be transferred to a strategic health authority are similarly transferred onwards in case of its own abolition or dissolution, thereby ensuring that the liabilities are always retained in the NHS.
If the Committee has managed to follow me, it would not normally be necessary to transfer a strategic health authority's criminal liabilities on its abolition, hence it is right to make the provision a power rather than a duty. When an SHA has inherited criminal liabilities from another NHS body delivering front-line services, the power can be used to transfer them onwards in the event of the SHA's abolition.
It has always been the Department's intention to transfer the criminal liabilities of NHS bodies on their abolition or dissolution, because we want to ensure that public accountability for any criminal offence is retained in the NHS. I hope that the hon. Member for Westbury agrees that the very fact that we have brought forward the clause shows our intention to transfer such liabilities. That is the Department's intention.
The second reason why the provision should be framed as a power rather than a duty is that it falls in line with various pieces of health legislation that provide the Secretary of State or the National Assembly for Wales with a power to transfer the property rights and liabilities of an NHS body to another NHS body on the former's dissolution or abolition.
The slightly unusual nature of the liability in question means that it is sensible to have a power rather than a duty. The Court of Appeal made it clear in its ruling that criminal liabilities were somewhat different in nature to other, general liabilities. However, I think that we are all agreed that we certainly do not want to create a situation in which people who are the victims of criminal offences lose out on justice just because an organisation is dissolved or reorganised into a different body.