‘(11) A scheme established under subsection (1) may only make provision to meet expenses or liability to bodies or other persons as specified in subsection (2) insofar as the expenses or liability arise from the provision of publicly funded healthcare.’.
The clinical negligence scheme for NHS trusts indemnifies members against losses and liabilities that arise out of negligence occurring in NHS care. It is currently only available to specific NHS bodies, under section 71 of the NHS Redress Act 2006. When the schemes were first established, most NHS care was provided directly by NHS bodies, but in recent years, non-NHS bodies have started to deliver a considerable amount of NHS care. The Secretary of State also procures some NHS services directly.
There has been considerable expansion in the use of private providers. We have seen them in the independent sector treatment centres, about which there has been some controversy, not only about the placing of the treatment centres and the possibility of them undermining the local NHS structures and trusts, but about them cherry-picking what are presumed to be the easier cases and leaving the NHS with a bill to pick up for the more complex ones.
There have also been issues about independent sector treatment centres, because when it all goes wrong, local NHS trusts pick up the bill. If ISTCs have been using, as many of them have, a lot of doctors from places such as South Africa, patients can be transferred in emergency circumstances into the care of perhaps the local orthopaedic surgeon who has not previously been involved with their care.
I am aware that the Government are keen to increase private provision. I gather that there has been some delay in the second wave of ISTCs, but the Government were aiming for a target of 9 per cent. of all NHS care delivered by private providers. We are now looking at an expanding mixed economy of provision in the NHS. We have talked about pharmacies delivering some care and undertaking some diagnostics. The amendment would cover the liabilities that relate to people who are treated in those private sector organisations.
Amendment No. 68 would prevent loopholes in the Bill, whereby expenses or liability might arise from the provision of non-publicly funded health care. I have been lobbied on the issue by, among others, Action against Medical Accidents. I quote from what I think was a submission by the organisation to the Minister that welcomes the move but believes
“that the provision of the Bill at the moment is seriously flawed in that it makes this arrangement voluntary on the part of the provider.”
The concern is that if the arrangement is not compulsory, private providers will not necessarily make it and that therefore leaves the
“NHS patient who suffers negligent harm from a private provider” without access to
“the same system of redress as an NHS patient harmed in an NHS trust.”
That is becoming increasingly important.
I do not have a problem with who provides the health care—whether a voluntary, charitable, publicly funded or private body does so—but what matters to me is that patients get the best care that they need as and when they need it. However, we are still using public money, so we must ensure that if the state—the Government, the PCTs— commissions care from the private sector the same safeguards are in place to protect and indemnify patients when things go wrong.
I do not expect a response from my hon. Friend the Minister, but some Labour Members do not want to see the private sector inside the public health service. I am sure that my hon. Friend is aware of my views, but I want to make sure that they are on record as not agreeing with private provision inside the national health service. The service should be publicly provided, and I shall continue to campaign on that basis.
I am sure that you would not welcome it, Mr. Conway, if the debate were widened into a general debate on the merits or otherwise of involving the voluntary and independent sectors in providing health care. I take the point that my hon. Friend made.
I have sympathy with the hon. Lady’s amendment, but I will explain why it is unnecessary. Subsection (1)(b) of section 71 of the 2006 Act limits schemes to covering liabilities that arise out of carrying out the functions of the member body. Under clause 131 (4) and (7), the liabilities of the Secretary of State and non-NHS members will be limited to those that relate specifically to their functions of providing health services under the 2006 Act. Under our proposal, schemes are limited to covering liabilities that relate to the provision of publicly funded NHS health care with regard to those members. However, the schemes cover not only such liabilities, but the functions of health service bodies and expenses that arise from the loss or damage to property that is not directly related to the provision of publicly funded health care. An example would be malicious damage to NHS property.
The amendment would prevent the existing schemes from providing cover to the NHS for such expenses and liabilities. I am sure that that is not the hon. Lady’s intention, but it would be an undesirable outcome. In response to her question about compulsory or voluntary participation, we cannot make participation compulsory, because we cannot compel foundation trusts, but in the contract with the independent provider, we can and will require liability—we cannot specify, but the scheme will be much cheaper for them.
There will still be liability, yes. We cannot force providers to take part in the scheme, but I suspect that they will, because it will be cheaper for them.
I shall withdraw the amendment, although I am slightly hesitant. The Minister presented some very technical details, which I am in no position to question, although I am sure that his advisers know exactly what they are talking about. I would not want to undermine any current situation, but I put on record a slight caution about such people being treated with public money, because of the concern about whether they will get the same cover. However, I beg to ask leave to withdraw the amendment.
I remind the Committee that, although we can consider the Bill until 7 o’clock tonight, the House may divide up to seven times at 5 pm, which will cut into a hour and 20 minutes of that time allocation. I am sure that hon. Members will bear that in mind when they seek to make their contributions.