Personal Injuries (NHS Charges) (Amounts) (Scotland) Regulations 2006 (draft)
I welcome the Deputy Minister for Health and Community Care, who seems to be without his officials. Are they en route or are you flying solo, minister?
I do not know whether there is compensation for the loss of civil servants, but I am afraid that that is what has happened. I am in your hands, convener. Do you want to proceed?
While I consider whether we should proceed, I invite you to say a few words of introduction. You have about five minutes. By the end of that, your officials may have turned up.
That might do the trick.
Thank you. There are some questions. Committee members have several documents relating to the draft regulations in their papers.
The evidence that we received from the British Medical Association shows that although it is generally in agreement with the draft regulations, it is concerned about the implications of the way in which the blame for injuries is ascertained and the requirement for the party that is at fault to pay the cost of treatment. This may be an extreme extension of the scheme, but could the same approach to cost recovery be applied to wrong-doers and people who have risky lifestyles, such as smokers, drinkers and those who are overweight, for example? What danger might lie in so extending the scheme?
I understand the point that is being made, but that is not the direction in which we are moving. It is important to emphasise that liability to pay charges to the NHS—to enable the NHS to recover costs—is limited to cases in which compensation has been paid to a third party.
We have had representations from businesses and insurance companies. The question that emerges from their concerns is whether it could be argued that businesses and public authorities already contribute to the national health service by paying national insurance and taxes.
Businesses and public authorities contribute, as do we all in one way or another. The point is that when businesses, insurers or compensators have conceded liability and said that the fault was theirs or that of their clients, that is different from the general circumstances that Jean Turner described. The scheme applies when liability has been conceded and compensation has been paid. In those circumstances, it is entirely reasonable that the compensator should fairly and proportionately assist the national health service with the recovery of costs. The draft regulations are intended to achieve that.
In personal injury cases, it is normal to see various heads of claim totted up—aspects of a claim could include future wage loss and past wage loss, for example. Are you saying that the draft regulations will in effect introduce under the total amount another head, except the money will go to the hospital or the NHS?
That interpretation is reasonable, although I would not have used that formulation. In effect, the draft regulations mean that if someone has conceded liability, they are also liable for NHS charges.
The compensator would pay under the heads of claim not only the injured person but the NHS.
That is right.
I heard what the minister said about the possible waiver that could be granted because of exceptional financial hardship. Will any other measures help small or very small businesses that might find higher insurance premiums a problem? What provisions exist or are under consideration to help businesses in such circumstances?
You raise a wider issue about how small businesses deal with the costs of employers liability insurance and public liability insurance, which have risen significantly in the past five years or so. The impact of the scheme on premiums, whether for small businesses or others, is likely to be small in comparison with the benefits that will be derived from it for the NHS. I do not expect the scheme to feed through into a significant hike in insurance premiums for employers liability insurance or public liability insurance.
Will you monitor that?
We will certainly want to keep an eye on it.
One reason for the delays in making the draft regulations was concern about whether the employers liability compulsory insurance market was sufficiently robust to cope with the changes. Are you now satisfied that that is the case?
That was a market-related judgment. The market has changed. As I said, there have been significant hits on insurance premium payers in recent years, but the situation has now stabilised to the point at which the market can deal with the scheme.
Could the scheme have implications for sports injuries? Off the top of my head, I am thinking about people who use ski equipment in a ski resort. Is the scheme likely to impact on people who use such facilities, because their personal insurance might go up to cover the implications of the scheme?
It is important to say that the scheme will not introduce new liabilities for anybody. As the convener said, it will require an additional payment to be made toward NHS costs when liability has already been accepted. If your concern is about extreme sports, such as skiing or other sports that involve an element of physical risk, the scheme will not impact directly on them at all. However, if an operator of equipment such as a ski tow is grossly negligent in a way that results in the operator's insurance company paying compensation to customers, that will be likely to trigger recovery of NHS charges.
We now move to agenda item 2, which is consideration of the motion on the draft regulations. The Subordinate Legislation Committee considered the draft regulations and had no comment to make. Does any member wish to debate the regulations?
No.
I therefore invite the minister to move motion S2M-5040.
Motion moved,
That the Health Committee recommends that the draft Personal Injuries (NHS Charges) (Amounts) (Scotland) Regulations 2006 be approved.—[Lewis Macdonald.]
Motion agreed to.
I thank the minister for attending.
Feeding Stuffs (Scotland) Amendment Regulations 2006 (SSI 2006/516)
Agenda item 3 is a further item of subordinate legislation. We are joined by Jillian Boddy of the animal food chain and novel foods branch of the Food Standards Agency Scotland—I did not realise that there was anything so interesting. We also have Lindsay Anderson, from the office of the solicitor to the Scottish Executive. I welcome them both.
When I read the paper, my concerns were reinforced. In simple terms, we are asked to agree to regulations that are liable to be overtaken by developments in 2007, as paragraph 4.3 of the partial regulatory impact assessment states, with a possible date of 2009 for a complete replacement set of regulations. The regulations apply a huge tolerance of plus or minus 15 per cent to the indication of feedstuff content. Does that add much to the sum total of wisdom about what is in a bag? We also cannot quantify the costs to the industry. We are told that dire consequences and infraction proceedings will follow, but are they really likely to happen? Is it a question of the United Kingdom and Scotland being out of line with everybody else? Have other member states implemented the European directive? Perhaps the witnesses would like to address some of those points.
The feedback that we have had is that some member states have implemented the directive and others are in the process of implementing it, as Scotland is. I would have to get back to you with further information if you wanted specific details on each member state.
No.
We must make a decision on the regulations today, so we do not have time to wait any longer for further information.
Does Jillian Boddy know whether just one member state has implemented the directive or whether more than one has implemented it? On the member states that are considering implementation, have they also been warned about infraction proceedings? Do we have any information on that?
I do not have information on infraction proceedings against other member states. It is the responsibility of the Scottish ministers to implement the directive and avoid infraction proceedings. We have had a letter from the European Commission asking us about our progress to date in implementing it, and I assume that that has also been sent to other member states.
That is helpful.
It was considered that anything narrower than 15 per cent would not provide extra protection to animals or the human food chain, and 15 per cent was considered adequate to meet the requirements.
I noted that you said in your correspondence with the clerk that the cost could range from "minor" to "significant"—that is a fair spread, I must say. It was suggested that the minor cost might apply to small firms but, for a small firm, what seems a small cost might actually be significant. In effect, we have no information on the implications for the industry.
We ran a 12-week consultation and, as I noted in my submission, we asked the industry to provide that information. Unfortunately, in Scotland, no breakdown of costs was provided for any sector of the industry, so I cannot provide any further information, although we tried to get it to include it in the regulatory impact assessment.
That is helpful as far as it goes. I appreciate the difficulties that the FSA is in.
I have not seen the letter to which Jillian Boddy referred, but the matter has some fairly complex history behind it. The measure was introduced in a directive in 2002, and it might be helpful to give you a brief history of it.
I have read the background history and do not want to detain everybody.
Euan Robson is making the fair point that we have been presented with a statutory instrument on the assumption that we will nod it through. It is a bit unfortunate that nobody has prepared for any real questions on it.
Can Lindsay Anderson explain what financial implications for the Scottish Executive would arise from infraction proceedings if the regulations were to be annulled?
There is a general obligation on the Scottish ministers to implement European obligations. The European directive was passed in 2002 and was in fact implemented in regulations that were made in 2003. However, following a court case, those regulations were subject to judicial review in both London and Edinburgh and their effect was suspended. The obligation that was placed on feed manufacturers has been partially cut away by the European Court of Justice's judgment regarding the percentage tolerance issue.
Paragraph 4.3 of the partial regulatory impact assessment states that the Commission is likely to embark on a wholesale review of the issue. Is it likely that infraction proceedings will be initiated before that review? I am trying to understand the timing. Will the regulations be superseded soon anyway?
We do not know the outcome of the review or whether it will affect the issue. The initial response from the Commission will be available in spring 2007, but that does not necessarily mean that the point that we are dealing with will change. I do not know how quickly the Commission intends to move to infraction proceedings.
I have no wish to put the Scottish ministers in an awkward position. If there is a legal requirement, it must be observed. One would not wish to add unnecessary costs to whatever budget the cost of infraction proceedings might come from. However, I think that this is a classic case of regulations that are perhaps unnecessary and overbureaucratic. If a review is to start in the spring of 2007, I do not understand why on earth the issue cannot be put on the agenda at that time. The regulations might not last for more than a few months—they might be done away with to avoid placing extra costs on the industry.
We are required to report on the regulations. I propose that we encompass some of that concern in the report. We can point out that the decision that we are making is based on a very vague premise. I appreciate that the Food Standards Agency is not at fault because the industry did not respond to the consultation but, nevertheless, it is difficult for us to discuss the issue in such vague terms.
Members indicated agreement.
The report will contain comments along the lines that have been expressed this afternoon.