Section 12: General duty to promote resolution under the scheme

     39.     This section imposes a general duty to promote resolution under the scheme. A duty will be imposed on scheme members and the scheme authority to have regard, when carrying out their functions under the scheme, to the desirability of settling the case without recourse to civil proceedings.

     Section 13: Duties of co-operation

40.     This section establishes a new duty of co-operation between the scheme authority (the NHSLA) and the Healthcare Commission (subsection (1)), and the scheme authority and the National Patient Safety Agency (subsection (2)). This is intended to help the scheme to operate effectively.

     Section 14: Complaints

     41.     This section enables the Secretary of State to make regulations providing for the handling of complaints about maladministration in the exercise of functions under, or relating to proceedings under, a scheme, or about maladministration in connection with settlement agreements under a scheme (subsection (1)). The regulations must provide for this procedure to be operated either by the scheme authority or by scheme members. The regulations may also make provision about who may make a complaint, which complaints are and are not covered by the procedure, to whom complaints are to be made, the timeframe within which complainants must receive a response, the form that a response must take, the procedure to be followed, and the action to be taken as a result (subsection (4)). The regulations may provide that the body operating the complaints procedure must make information about the procedure available to the public (subsection (5)), that different parts of a complaint may be treated differently (for example, for different procedures to apply to different aspects of a complaint) and that documents may be required to be disclosed in order for the complaint to be investigated, subject to any legislative restrictions on disclosure (for example, in the Data Protection Act 1998) (subsection (6)). The regulations may also make provision about how complaints that also fall under complaints procedures set up under other legislation, as well as the complaints procedure established under section 14, are to be dealt with (subsection (7)). ⁶

⁶ The powers under section 14 are similar to the powers under sections 113 and 115 of the Health and Social Care (Community Health and Standards) Act 2003 (c.43) (complaints about health care).

     42.     The regulations may also make provision for securing that complaints made in connection with the redress scheme but which fall to be considered under other statutory complaints procedures, are referred to the organisation operating those procedures, and that they be treated as if they had been raised as a complaint under those procedures (subsection (8)). Subsection (10) amends section 31(6) of the Data Protection Act 1998 so that personal data processed for the purpose of dealing with complaints under the redress scheme complaints procedure may be exempt from the subject information provisions of that Act. The subject information provisions of the Data Protection Act 1998 allow for individuals, except in certain defined circumstances, to seek and obtain information about them which is held by others. Section 31 of the Data Protection Act 1998 provides an exemption from these provisions by reference to a number of different categories of regulatory function exercised by public bodies.

     Section 15: Remit of Health Service Commissioner for England

43.     This section amends the Health Service Commissioners Act 1993 to broaden the remit of the Health Service Commissioner for England to include complaints relating to maladministration in relation to the exercise of functions under the scheme, in connection with a settlement agreement under the scheme or in the exercise of any functions in relation to complaints made under regulations under section 14. The effect is to allow the Commissioner to investigate complaints about such maladministration, and to report on her findings following the investigation of such a complaint.

     Section 16: Regulations

44.     This section makes further provision about the Secretary of State's regulation-making powers under the Act. In particular, the first regulations establishing a scheme (and any subsequent regulations that establish an entirely new scheme) are required to be laid before and approved by each House of Parliament before they can be made (normally referred to as the affirmative procedure) (subsection (6)). All other regulations are subject to annulment in pursuance of a resolution of either House of Parliament (normally referred to as the negative procedure) (subsection (7)): this means that such regulations can come into force without Parliamentary approval but that Parliament will have 40 days after they have been laid before Parliament to pass a resolution annulling them. If such a resolution was passed, the regulations would cease to have effect from the date of the resolution.

     Section 17: Framework power (Wales)

45.     Section 17 gives the National Assembly for Wales a broad power to make regulations establishing arrangements for redress in respect of Wales. The section has its foundation in the principles set out in the Wales Office's White Paper: Better Governance for Wales ⁷, which was presented to Parliament on 15 June 2005. The White Paper contains the Government's proposals for developing the devolution settlement in Wales.

⁷ Cm 6582; see in particular paragraphs 1.24 and 3.12

46. The arrangements made under this section may cover people with claims involving qualifying liability in tort arising out of the provision of services as part of the health service in Wales (whether those services are provided in Wales or elsewhere), and connected matters (subsection (1)). The Assembly is not under an obligation to set up a "scheme". The arrangements are not restricted to claims arising from harm caused in hospital settings. "Qualifying liability in tort" is defined more widely than in section 1 (subsection (2)): it is not restricted to liability arising from acts or omissions on the part of healthcare professionals. The broad scope of this power is intended to allow the National Assembly for Wales to determine arrangements for redress which are most relevant to its policies and plans for the health service in Wales.

47.     Subsection (3) establishes that regulations made by the National Assembly for Wales under this section may include any provision that could be made by an Act of Parliament, apart from those provisions identified at subsection (4). The scope of the regulation-making power is similar to the regulation-making power in section 2(2) and (4) of the European Communities Act 1972.

48.     Subsection (4) places a number of restrictions on the National Assembly for Wales in exercising its power under subsection (1). The Assembly cannot:

(a) make any provision imposing or increasing taxation;

(b) give any of the provisions in the regulations retrospective effect;

(c ) sub-delegate the power to legislate;

(d) create a new criminal offence;

(e) make provision extending otherwise than to England and Wales; or

(f) make any provision which applies to England, without the consent of the Secretary of State.

     49. Subsection (5) provides that subsection (4)(c) does not preclude the modification of a power to legislate granted otherwise that under subsection (1), nor does subsection (4)(c) preclude the extension of any such power to purposes of a like nature as those for which it was conferred.

50. Subsection (6) provides that sub-delegating a power to give directions as to matters of administration is not to be regarded as a power to legislate within the meaning of subsection (4)(c). Subsection (7) allows the National Assembly for Wales to exercise the power under subsection (1)(a) in respect only of some of the cases covered by the power, if it sees fit.

     Section 18: Interpretation

51.     Section 18 provides definitions for the expressions used in the substantive sections. Some of the definitions refer to the meaning given in the National Health Service Act 1977: section 128 of that Act contains the relevant definitions.

COMMENCEMENT DATE

52.     The commencement section (section 19) provides that the Act (with the exception of sections 17 to 19) will come into force on a day appointed by order by the Secretary of State. Section 17 will come into force on a day appointed by order made by the National Assembly for Wales. Sections 18 and 19 will come into force on the day on which the Act is passed.

HANSARD REFERENCES

The following table sets out the dates and Hansard references for each stage of this Act's passage through Parliament.

Royal Assent - 8 November 2006     House of Lords Hansard Vol. 686 Col 750

                         House of Commons Hansard Vol. 451 Col 825