Plenary, 19 Jun 2003

Meeting date: Thursday, June 19, 2003

Official Report 752KB pdf

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Health and Social Care (Community Health and Standards) Bill

The next item of business is a debate on motion S2M-137, in the name of Malcolm Chisholm, on the Health and Social Care (Community Health and Standards) Bill, which is UK legislation. I invite members who wish to participate to press their request-to-speak buttons now.

The motion relates to the Health and Social Care (Community Health and Standards) Bill, which has received its second reading in the House of Commons and completes its committee stage today. It was not possible to bring the motion to the Parliament sooner, because of the election in May.

Part 3 of the bill, together with schedule 9, propose the establishment of a scheme whereby national health service charges relating to an injured person can be recovered, in most cases, when that injured person receives a compensation payment from the person who is responsible for his or her injuries. The person paying the compensation will be liable to pay the NHS charges, not the compensated injured person.

The bill provides for two separate but parallel schemes: one scheme for Scotland, for which Scottish ministers will be responsible, and another for England and Wales, for which the Secretary of State for Health will be responsible. Essentially, the bill provides that where treatment has been provided by NHS Scotland, the relevant charges are to be paid to the relevant hospital via Scottish ministers. There is a desire for a consistent approach to cost recovery within the United Kingdom and no suitable legislative opportunity is likely to arise in the near future in our legislative programme, which is why we are debating the motion today.

The principle of recovering NHS charges is not new. Since the 1930s, under the terms of compulsory motor vehicle insurance, if personal injury compensation is paid to the victim of a road traffic accident, the insurer paying compensation is liable to meet the costs of any hospital treatment that the victim might need. The arrangements for recovering such costs were revised and centralised through the Road Traffic (NHS Charges) Act 1999. Like the provisions in front of us today, the 1999 act applies in England, Scotland and Wales, but for Scotland the matter is devolved. Therefore, the 1999 act confers on Scottish ministers powers to make regulations setting the amount to be recovered and the timing, manner and procedure for appeals.

We have here an opportunity to regulate for a scheme whereby those who are responsible for causing injury to others will contribute to the costs of their wrongdoings, including the costs of NHS treatment, thereby removing from the general taxpayer the burden of meeting such costs. Subsidising wrongdoers who do not take active steps to reduce the risk of causing injury costs NHS Scotland an estimated £7 million to £12 million each year.

If people have to pay for causing injury to others, albeit through increased insurance premiums, it is likely that they will take care to avoid doing so. Any improvement in health and safety, particularly of employees, is of course a good thing. I stress, however, that NHS costs would be recovered only where a wrongdoer paid personal injury compensation to an injured person. The injured person would pay nothing and would not suffer any reduction in their compensation payment. In most cases, the injured person would be unaware that the cost of their NHS treatment was being recovered.

Like the present road traffic accident scheme, the compensator will have a right to have the charges reviewed and a right of appeal. Furthermore, responsibility for setting the tariff of charges to be recovered lies with Scottish ministers. The RTA scheme has an upper limit; I envisage that the proposed scheme will also have such a cap when it is commenced. The cap currently sits at £33,000.

Also, like the present road traffic accident scheme, NHS costs that are recovered will go to the NHS trusts or boards that provide the NHS treatment. Ambulance costs, which are not part of the RTA scheme, but will be part of the proposed scheme, will go straight back to the Scottish Ambulance Service. Since the Road Traffic (NHS Charges) Act 1999 came into force in April 1999, more than £18 million has been returned to hospitals in Scotland.

I am sure that members will have concerns, as I do, about the impact of such cost recoveries on the insurance market, particularly while the Department for Work and Pensions is carrying out a review of employers' compulsory liability insurance. The Health and Social Care (Community Health and Standards) Bill presents an opportunity for the introduction of a scheme to extend the coverage of the RTA scheme, but those provisions allow Scottish ministers to determine when such a scheme should be commenced. The Department of Health has given a commitment to the Department for Work and Pensions that it will not commence a scheme until the outcome of the employers' compulsory liability insurance review is known.

I am going one step further in that I have given a commitment that commencement will be deferred until such time as the Executive is content that the insurance market has addressed the potential inequalities in the charging of premiums, either by introducing a fairer system of premium setting, or by seeking an alternative solution.

I move,

That the Parliament endorses the principle of ensuring consistency in recovery of NHS charges where compensation is paid following injury as set out in Part 3 of the Health and Social Care (Community Health and Standards) Bill and agrees that the relevant provisions to achieve this end including extending ministers' powers to make regulations under a scheme for recovery should be considered by the UK Parliament.

As with all Sewel motions, the onus is on the minister to tell us why we should be giving up legislative power in this case and why we are not able to legislate in this Parliament. I heard what the minister said about there not being an opportunity in our programme to do that, but surely the Scottish Executive could manage the considerable time that it has in Parliament a little bit better to ensure that we do have that legislative opportunity.

A number of questions are raised by what is being proposed today. On the substance of the matter, we have no objection in principle to extending recovery of costs of NHS treatment for road traffic accidents alone to all personal injury compensation claims where someone who is not at fault requires NHS treatment. However, we have a number of concerns about the consequences of the extension, some of which the minister has touched on.

First, what is proposed might increase insurance premiums, which would mean that some people were unable to pay. I presume that people who do not have insurance cover will have to cover the NHS treatment charges if they are found to be liable—that is something that the minister could clarify in summing up. I was glad that the minister said that the Executive is happy to delay the commencement of the changes in order to provide time for insurance companies to address inequalities in premiums. That is a sensible measure in this case.

My second concern is that the cost of doctors insuring themselves against clinical negligence could be an issue. Will the costs of such insurance increase, what will the minister do about that, and has he spoken to professional bodies such as the British Medical Association about the possible consequences of clinical negligence cases?

Thirdly, what is proposed might increase the chances of the blame culture's becoming worse than it is at the moment, which could lead to more and more people attending NHS hospitals for examination of injuries that they have sustained in accidents for which they want personal injury compensation. If their claims are unsuccessful, the NHS will not be reimbursed for the charges for NHS treatment in those cases.

We need to be reassured on those matters of concern. Those concerns add weight to our fundamental argument that legislation such as the bill should undergo full scrutiny in this Parliament in order to get answers to such questions. To be quite frank, I do not think that time is a good enough reason not to have done that in this case.

Unlike the motion that we debated earlier this afternoon, the motion that is before us now is very serious and will have a great impact on quite a number of sectors in Scottish life. It is interesting to note that the Health and Social Care (Community Health and Standards) Bill is the bill that will introduce foundation hospitals in England. We are dealing with only one section of that bill today, but perhaps its other provisions might come this way over time.

The principle of personal injury compensation and money going to support our already strained NHS is absolutely correct. However, the implications of that principle, the procedure and how we go about that must also be considered. Despite Shona Robison's comments, I notice that the scheme for Scotland will in fact come to ministers. I am sure that she will agree with me when I say that I hope that, when they consider it appropriate to bring details of the schemes to the chamber for approval, ministers will put those proposals to the appropriate committee, which will—I presume—be the Health Committee. However, the Enterprise and Culture Committee and committees that deal with sports and local government should also have sight of any proposals, because there will be implications for those areas; indeed, the minister hinted at that.

It makes sense to have a UK-wide scheme, because many transport companies operate both north and south of the border, and it seems petty and silly to get into a situation in which we have duplicate principles in law. However, we need in the devolved settlement to have more control in dealing with recovery of costs for the health service—we strongly support that.

We have concerns about the cost to Scottish businesses, in particular to small Scottish businesses, some of which are finding that insurance premiums are rocketing.

I would like to know what discussions the minister has had with the insurance sector in Scotland about employers' liability insurance, which is obviously a serious issue. Employees, customers who enter premises and so on must be looked after, but schemes must be affordable, because we do not want anybody to cut corners. Will the scheme also apply to self-employed roofers, for example, who technically create a site situation when working in people's homes? It is important that such issues are carefully and correctly considered.

Setting the systems is appropriate, but I am a wee bit concerned about one or two aspects of that. What will happen if, for example, a person is awarded personal injury compensation and the firm, body or person responsible cannot pay? Will a scheme be put in place to deal with such situations? Shona Robison rightly raised the question of who should pay court and tribunal procedure costs if there is an appeal. Should the offending person pay? If they cannot pay again, should the state or the court system pick up costs?

We need to see the proposals in great detail, but I want to broaden the issue slightly. The minister mentioned a possible upper limit of £33,000 to match the RTA scheme, which is interesting. What about sports clubs and activities that take place in schools? The minister must address and bring to the Parliament such issues and ensure that there is full scrutiny of this potentially important legislation. To deal properly with the matter, I hope that we deal with it thoroughly and that there will be proper scrutiny in the chamber.

I welcome the opportunity to speak to the motion. The important principle is consistency in legislation throughout the UK. The Liberal Democrats believe that it makes sense for Westminster to legislate for Scotland on particular aspects of the bill, which will repeal the Road Traffic (NHS Charges) Act 1999 and replace it with legislation that extends the cost recovery process to all cases in which people claim and receive personal injury compensation for injuries that require treatment by the NHS. It is important that, as the current cost recovery scheme operates UK wide, the new scheme—if it is approved by the House of Commons—do the same.

Two further important and straightforward points should be made if the motion is agreed to and the bill passes through the House of Commons. First, a commencement order will not be made until the outcome of the UK Government's review of employers' liability insurance is completed—the minister confirmed that. Secondly—perhaps more important—the Scottish Executive will have the right to defer commencement of any new regulations until it is satisfied that the insurance market has adequately addressed the issues that the bill will inevitably raise—the minister mentioned that, too. The motion says:

"extending ministers' powers to make regulations under a scheme for recovery should be considered by the UK Parliament."

Like David Davidson, I assume that the regulations will go through the Health Committee.

In conclusion, it makes good sense for Westminster to legislate on a UK-wide basis, but it is correct that the final decision on the commencement of the scheme in Scotland must lie with Scottish Executive ministers.

As we have heard, the only parts of the bill that are applicable to Scotland are those that relate to compensation for the NHS. The extension of the cost recovery process to all cases—not just road accidents—in which people receive personal injury compensation is eminently sensible.

It is right and proper that we pass the Sewel motion today rather than waste everybody's time by double legislating. I am saddened that the SNP has yet again chosen to make the same old tired constitutional arguments rather than focus on a necessary policy. Nothing would be served by the Scottish Parliament's passing exactly the same legislation as the Westminster Parliament. Bills such as this should achieve relative consensus.

Will the member take an intervention?

I am going to make only a short speech. We have heard the member's arguments umpteem times in the past. If SNP members feel so strongly about matters, they can surely rely on the SNP's gang of six at Westminster to make their views felt.

On the issue itself, I am happy to give the bill my support. I will be grateful if the minister addresses a couple of points in his winding-up statement. He mentioned that all moneys that are recovered will be paid directly to the NHS body concerned. I am obviously pleased to hear that, but can he confirm that that will not be to the detriment of the overall NHS budget? Will the minister consider using some of the moneys that are recovered to improve the health and safety conditions for NHS staff, many of whom are often on the receiving end of violence during their day-to-day duties?

I am happy to support the Sewel motion and I hope that the Parliament will pass it.

I am astounded by Janis Hughes's comments. It is because we want the opportunity to scrutinise the proposal and the bill that we argue that the Parliament should use the powers that it has to have the legislation brought before us, rather than debate a motion when hardly any members are in the chamber.

Will the member give way?

I have a limited amount of time—I might be able to take an intervention later in my speech.

The briefing paper refers to a consultation. As a member of the public, I am certainly not aware of that consultation. It must not have had a high profile; it received only 19 responses. If it had been a proper consultation, I would have thought that many people might have wanted to respond to it and contribute to the debate. I do not understand what the potential impact of the bill is on employers—including the NHS—and employees in relation to workplace accidents. It will be an interesting accounting exercise if the NHS is held liable for needlestick injuries; I would like to see how that compensation would be recovered. That issue is worthy of the examination by Parliament.

The Scottish Socialist Party is concerned that the extension to all personal injury claims of the ability to recover compensation will raise insurance premiums. That would be regressive because insurance premiums are not based on income. There will be a transfer of the burden of NHS provision on to insurance premiums, which are regressive, rather than on to taxation, which should be progressive and would be a lot more progressive if the SSP had anything to do with it.

If the principle is to be applied consistently, when will compensation be paid by, for example, tobacco companies, brewers and fast-food businesses? I imagine that compensation that is commensurate with the damage to health that they cause would relieve the NHS of an awesome financial burden. I would like to see some consistency.

Is Carolyn Leckie aware that the amount of duties paid by smokers on their tobacco is 30 times the cost of smoking-related diseases and illnesses that have to be paid for by the NHS?

I am aware of that. That means that the victims of tobacco addiction are paying for being ill, rather than the tobacco companies who poison them. I would shift the blame on to the tobacco companies.

The provisions in the bill should be within the powers of scrutiny of the Scottish Parliament. I fear—which is why I will oppose the motion—that the provision undermines the fundamental principle of universal NHS provision being free at the point of need. The issues are controversial and I regret that there is not a greater debate. The bill might have for people and for Scotland many consequences that we have not had the opportunity to examine—Parliament and the Scottish people might well come to regret the passing of the motion. Given that the Scottish Parliament has such limited powers on taxation and so on, it is astonishing that we are willing to pass on the nod such a transfer of power back to Westminster.

Will Carolyn Leckie give way?

I am winding up.

We should be claiming more powers—we should be claiming full powers and independence.

It is 125 minutes since Jack McConnell, in answer to Frances Curran in the chamber, stated:

"Devolution is about taking responsibility for our affairs".

That is the simple nub of the issue and it is why the Scottish National Party, on each and every occasion, will have the Scottish Parliament legislate on matters that affect people in Scotland and not cede that duty to another place, unless doing so has a clear and identifiable benefit to Scotland.

On the same ground, will the SNP begin to ignore European directives as well?

Where Europe has the legislative competence to legislate, Europe should legislate; where the Scottish Parliament has that legislative competence, we should do so. This current matter is an example of an area in which we have the competence to legislate and should do so. Mr Johnstone's views on Europe are well known and differ radically from mine.

I want to ask the minister some practical questions. It appears that the consideration that is financially associated with the proposal is some £7 million to £12 million a year. The figure is not entirely clear and will not be so until the proposal is implemented. The minister told us that he is considering having a £33,000 cap on the scheme, but it appears to me that a range of costs, which might be similar to or greater than the benefits that are to be derived, might be associated with implementing the changes. What will be the cost to underwriters of the process of negotiating the additional cover that they will need to write for a variety of insurance policy holders? What will be the cost of notifying the 1 million or so insurance policy holders in Scotland whose insurance will be affected by the proposal? What will be the cost to small businesses? Indeed, what are the views of the Federation of Small Businesses and the Forum of Private Business on the additional costs that might be borne by their members? It is quite reasonable that we seek equity, of course. What will be the cost to the national health service of implementing the proposal?

The minister told us that a tariff will be set. I assume—since I am not familiar with the tariff—that there will be a tariff for various kinds of incidents. Having the health service charge in that way will, of necessity, be relatively arbitrary. If the scope of this sort of recovery is extended, I foresee that it will be challenged on the basis that it does not reflect the costs that are incurred by the health service with regard to an individual incident. Does that mean that the NHS will have to introduce a timekeeping operation for all incidents that occur in accident and emergency departments against the possibility that such a claim might be made? If so, what would be the cost of that to the NHS?

I ask those questions not because I expect the minister to answer them, but as examples of the kind of questions that the Scottish Parliament should be asking when it considers this proposal. If we cede this matter to a Parliament elsewhere, where it will be hidden well from the media and MSPs, we will end up not knowing the cost to the Scottish Executive, the NHS, insurance companies and small businesses of legislation that is enacted elsewhere.

The member voted to remove the cap on the spending on the Scottish Parliament building at Holyrood at a time when he could not have known how much it would cost. Surely that fact does not fit with his current argument.

I am not entirely sure which vote the member is referring to, but I seem to recall that, within my first month in the Parliament, in June 2001, I voted differently to the way that Mr Monteith suggests.

I am into value for money. The costs of implementing the proposal could be extraordinarily high. Frankly, it might be better to cut out the middleman and get the insurance industry to sub the NHS £12 million a year, because that would reduce the amount of administration that would be needed. That suggestion is yet another example of the sort of issue that we should be debating in the Parliament in relation to all the Sewel motions that are used willy-nilly to pass power from here to another place.

I will oppose the motion.

I am slightly surprised at some of the claims that have been made today. I suppose that I am surprised because a scheme very similar to the one that we are debating has applied to road traffic accidents since before the start of the national health service. I am slightly puzzled at why Carolyn Leckie thinks that the scheme in the bill uniquely undermines the universal principle of the national health service. According to that argument, we must never have had the universal principle, as a similar scheme has applied since before 1948 in relation to road traffic accidents.

Stewart Stevenson asked what the cost of the scheme would be to the health service. Of course, one of the reasons for the scheme—not the only one—is that the health service will gain money from it. The estimate is £7 million to £12 million. I reassure Janis Hughes that that will be additional money. No new bureaucracy is involved in the scheme. Stewart Stevenson also referred to timekeeping. There is a well-established system in relation to road traffic accidents. Charges are made by the day and no bureaucracy is involved in that.

Stewart Stevenson's colleague, Shona Robison—who, of course, was the first speaker after me in the opening speeches—started with the well-worn Scottish National Party point about Sewel motions, which I regard as entirely ideological. If it is in the Parliament's interests and, more important, in the Scottish people's interests, to buy into, as it were, a small part of UK legislation, we should surely do that, particularly in the current situation, in which the implementation of the relevant section of the bill is entirely within our control. Indeed, when the regulations are drawn up, we do not need to implement the scheme at all if we so choose.

Surely the point is that a number of questions have been asked by all parties this afternoon and the minister has so far answered none of them. Is not the point that, by the time that the regulations are laid before the Parliament, those questions will not have been answered here? Surely it would be better to get the right regulations in the first place than to be in the position of having not to implement them because they are the wrong regulations, as the minister suggests. Is that not a strange way to legislate?

It would not be because the regulations were the wrong ones that the question of not implementing them would arise. As I made clear at the end of my opening speech, we would want to ensure that the insurance market had addressed the potential inequalities in the charging of premiums. That is the key condition that we would want to be applied. However, like the UK Government, we would not implement the scheme until the review to which I referred had been completed.

I welcome the fact that Shona Robison did not object in principle to the scheme. She was concerned about insurance premiums. That is a fair point—I made it myself. There are problems with some businesses being able to afford compulsory employers' liability insurance because of the rising cost of such insurance, but those problems arise for reasons that are unconnected with the recovery of NHS costs. Any further increases that are directly attributable to the recovery of NHS costs will be small compared with overall premium costs. There is an issue with premiums, but the recovery of NHS costs is a small part of that problem.

I remind members that we are talking about employers. That leads me to perhaps the strongest argument in favour of the bill—even stronger than the additional money that it will bring to the NHS—which is that the bill is a very good public health measure because it will put more pressure on employers to ensure that they have good health and safety arrangements in their workplaces.

That is why I was surprised that Carolyn Leckie was so against the bill. She said that there had been no proper consultation. I assure her that her trade union noticed the consultation and made a lengthy submission to it. I am sure that Janis Hughes—who happens to be a member of the same union—Carolyn Leckie and their union will welcome the fact that more money will go to the health service as a result of the bill.

Janis Hughes's suggestion about spending money to protect staff and taking further measures against violence against staff is entirely good. It is not in the bill—

Will the minister take an intervention?

I will do so in a moment.

Individual trusts would decide how to spend the additional money. I am sympathetic to the suggestion that Janis Hughes made, which I am sure could be explored further if members thought that that was a good idea.

The point that is being made in the questions that have been asked of the minister is that the Scottish Parliament is not being offered the opportunity to ask those questions, examine the sort of legislation that it wants to see or form its own opinions. The Parliament has been asked to pass the legislation on the nod, because the decision on it is being taken at Westminster.

Does the minister agree that it is clear from the debate that a thorough examination has not been made of the issues? Is not that the point that members are making?

A consultation was undertaken on the issue. Many people, including Unison, made submissions as part of it. The insurance industry was also consulted, which answers one of the points that David Davidson made.

I understand the point that Carolyn Leckie is making and the logic of it is that we would never have a Sewel motion. I believe that, in certain situations, a Sewel motion is appropriate. We have a full legislative programme and all of us have to prioritise when it comes to the legislation that is advanced in the Scottish Parliament. If part of a Westminster bill appears to embody a good piece of policy, it is entirely reasonable that we should proceed by means of a Sewel motion. That is particularly the case on this occasion because, as I said, we have complete control of the implementation of the measure that is before the chamber today.

Concern was expressed about those who cannot pay; in the main, they will be employers. However, ministers have been given powers to waive the requirement to pay NHS charges that are due in cases where payment would cause exceptional financial hardship. Ministers can do that prior to an appeal against the level of the charges. The provision exists for cases of genuine financial hardship to be dealt with in that way. I remind members that claims for NHS charges are secondary in law, which means that only when compensation has been paid will payment to the hospital be made.

What will be the cost of administering the system?

I referred a moment ago to the exceptional situations in which an appeal is made to ministers.

David Davidson made a general point about the appeals procedure. I confirm that that will be done by the appeals service of the Department for Work and Pensions. It is not possible to answer Shona Robison's question in relation to the particular point that I make, as no one knows how many people will appeal. I do not imagine that any great bureaucratic cost will be involved in the appeals procedure, given that we are talking about the making of ministerial decisions.

David Davidson asked several questions, most of which I think I have covered. If I have omitted to answer one of them, no doubt he will remind me—I see that he is about to help me out.

I will help the minister out. Before he lays the final details of any scheme, will the minister bring the scheme before the committees of the Parliament for scrutiny?

Any committee of the Parliament can scrutinise a statutory instrument when it is presented and anybody can pray against a statutory instrument. There is absolutely no bar on that happening.

I have found my note on another of David Davidson's points, about the upper limit. I confirm that it is entirely within the control of the Scottish Parliament to decide what the upper limit should be. If members have concerns on that matter, they can raise them. On the more general point that was raised, the amount that is to be paid is entirely a matter for Scotland.

On a point of order, Presiding Officer. Will you clarify something that the minister said? Is not it the fact that the Parliamentary Bureau decides which instruments are laid before which committee or before the whole Parliament?

That is strictly true, in as much as we make a decision either to refer an instrument to a lead committee or to put it before Parliament.

I certainly would not argue about matters of procedure. In any case, I do not think that I said that statutory instruments would be referred to any committee; instead, I said that any committee or individual member is perfectly entitled to pray against a statutory instrument. There is no bar in that respect.

We are pursuing pragmatically this entirely sensible measure to ensure that Scotland can feel the potential benefit of the provision. It is in the interests of health and safety at work that employers are made to take their responsibilities seriously, and this small measure will help to achieve that objective.

Moreover, the additional money that becomes available will be good for the NHS. The measure does not constitute a departure from the fundamental principles of the NHS. Indeed, I repeat that a similar means of allocating extra money to the NHS, from road traffic accidents, has existed from the very day of the health service's inception.

I remind members of my commitment not to commence the scheme until the insurance market is in such a position that employers who take the health and safety of their employees seriously are not subsidising those who disregard those aspects. Once again, I ask Parliament to agree to the motion.