Insurance Bill [HL]

Lord Woolf Excerpts

Thursday 8th January 2015 Lords Chamber

[Lord Newby (LD)]

My Lords, in moving Amendment 1, I shall also speak to Amendment 2. In the amended Bill, Clause 4(6) provides that, for the purposes of the duty of fair presentation of the risk, the insured “ought to know” what should have been revealed by a “reasonable search of information” available to it.

Some of the evidence we heard in Committee made the case for the Bill explicitly confirming that the “reasonable” search may extend to persons covered by the insurance contract but who are not the insured in the sense of being a contracting party. Noble Lords will recall that my noble friend Lady Noakes and the noble and learned Lord, Lord Woolf, put forward amendments to this clause in Committee stating that the reasonable search may extend to persons who could benefit from the contract. The Government were unable to agree with the specific wording of those amendments, and they were subsequently withdrawn.

However, we agreed to take the issue away and consider whether amendments needed to be made to ensure that the intended scope of the clause is clear. The Government consider that such clarification would benefit the Bill, and Amendments 1 and 2 seek to address this issue. As we discussed in Committee, what is a reasonable search of information will depend on the type of cover an insured seeks and the type of entity it is. It is important that Clause 4(6) expresses a broad principle that is flexible enough to take account of the wide variety of insurance policies and types of cover which are bought in the non-consumer context.

Amendment 2 clarifies that “information” which an insured ought to know may include information held by a person other than the insured, specifically mentioning that this may include,

“a person for whom cover is provided by the contract of insurance”.

This makes clear that persons benefiting from the contract could come within the scope of the insured’s reasonable search. I believe that this was at the heart of the amendments put forward by my noble friend Lady Noakes and the noble and learned Lord, Lord Woolf, and I hope that they are content with the drafting we have produced on this in Amendment 2. These amendments will improve the Bill, and I hope that the House can support them. I beg to move.

[Lord Woolf (CB)]

My Lords, in accord with the approach adopted by the Minister throughout the discussions on this Bill, I would like to acknowledge the help that he gave, which was something that I and the noble Baroness, Lady Noakes, were looking for.

Amendment 1 agreed.

Medical Innovation Bill [HL]

Lord Woolf Excerpts

Friday 12th December 2014 Lords Chamber

[Baroness Wheeler (Lab)]

My Lords, as this is the first contribution from the Front Bench to the discussion of today’s amendments, perhaps I may again place on the record our support for the key principles and intent of the Bill. As we stress, Labour has always strongly supported efforts to bring innovative treatments to patients faster, and we underline the need for a major effort by government to address the barriers and bureaucracy that prevent progress being made and ensure that innovations are rapidly transcribed into practice. The noble Lord, Lord Kakkar, recently held a short debate in the Moses Room on the impact of innovation and research strategies on health improvement. It provided an excellent overview of the key issues, the progress being made, and the problems still to be addressed. We are keen to ensure that the Bill of the noble Lord, Lord Saatchi, is seen in the context of this wider, bigger picture. I know that the noble Lord accepts that his Bill will be one measure in the broader landscape of what needs to be done.

Along with my noble friend Lord Turnberg, I am also grateful to the noble Lord for the efforts he has made to address the issues and concerns raised by noble Lords across the House. In Committee we underlined our broad support for the changes—the “Sir Bruce Keogh amendments”, as they are now known—which have been made to ensure patient safety and safeguarding. We also found the round-table discussions for Peers that were organised by the noble Lord following our suggestions in Committee very valuable and useful. Again, we are broadly supportive of the new amendments he has brought forward today, which are the result of the discussions, on emergency care, on the recording of key information in the notes of the patient receiving the treatment, on excluding cosmetic surgery from the scope of the Bill, and on ensuring the preservation of the existing law about clinical trials and other forms of research.

My noble friend Lord Winston continues to express strong concerns about the Bill, and his amendments are designed to add further safeguards and limitations on the scope. He fully reflects the continuing concerns that have been voiced by a number of key stakeholders and doctors, including the BMA and the Medical Practitioners’ Union, which have issued further detailed briefs warning against the possible consequences of the Bill. At my noble friend’s instigation, I have read carefully Tuesday’s Adjournment debate in the House of Commons on patient safety and medical innovation, and in particular the contributions from Dr Sarah Wollaston MP, who expressed the strong criticisms we have heard from the noble Lord and the Bill’s critics, and the contribution from the Minister for Life Sciences, George Freeman. I thought that Dr Wollaston’s contribution well reflected the issues and concerns we have heard in this House—but also that the Minister presented a pretty balanced response as to where we are today in terms of the safeguards and workability of the Bill.

For our part, we have sought to work constructively with the noble Lord, Lord Saatchi, and other noble Lords to improve the Bill and to make it workable and safe for patients. The round-table discussions particularly focused on the outstanding areas of our concerns which we are discussing today. First, there is the issue of obtaining written consent from the appropriately qualified doctor in relation to the proposed treatment, which will come up in the next group. Secondly, we seek to ensure that the Bill does not impact on or affect the existing law on clinical trials and other forms of research. We are satisfied that Amendments 8 and 9, tabled by the noble Lord, Lord Saatchi, have the effect of reinforcing this in the Bill.

Thirdly, we desire to see a definition of “innovation” in the Bill and we have sympathy for the arguments that key areas need to be excluded from its scope, as again set out in the amendment retabled by my noble friend Lord Winston. The Department of Health has argued strongly that any definition of innovation would need to be the subject of a widespread, cross-government consultation that should include the devolved Governments. We have made a dignified retreat on our particular amendment and we accept the difficulties that would be involved at this stage in the progress of the Bill. However, my noble friend Lord Winston has made a strong case for defining innovation in respect of medical treatments and the use of drugs, and I look forward to the responses of the Minister and the noble Lord, Lord Saatchi. Like my noble friend Lord Turnberg, we think that a form of words based on that would provide a useful clarification.

On exclusions, the briefing on the amendment of the noble Lord, Lord Saatchi, states that he has considered attempting to define the extent and scope of the Bill, but has found it impossible to do so in a way that answers more questions than it raises. However, Amendment 10 does provide the important exclusion of cosmetic surgery that was sought by noble Lords across the House, and we welcome this. At the round table there was discussion about the possibility of the scope of the Bill referring to the regulated branches of medicine to distinguish the areas it covers. My noble friend Lord Winston makes this point in Amendment 12 in relation to excluding practitioners and health workers who are not registered with the General Medical Council or the General Dental Council.

Fourthly, I turn to the very important issue of emergency situations in the treatment of patients, which is a strong area of concern for noble Lords across the House, including my noble friends Lord Turnberg and Lord Winston, and the noble Lord, Lord Kakkar. Amendments 14 and 15 tabled by the noble Lord, Lord Saatchi, address this by providing a reference to emergencies as an example of a situation in which the existing common law Bolam test would apply and a doctor might not engage in the procedures of the Bill. But if there is further clarification in respect of the issues raised by my noble friend Lord Winston, we would be grateful for that. Amendment 1 raises other issues in respect of emergency care, and again I look forward to hearing from the noble Lord, Lord Saatchi, and the Minister in response.

As I have said, we have worked constructively with the noble Lord, Lord Saatchi, to make the Bill safe and workable, and we believe that the amendments that were made in Committee—and that we hope will be made today—will make it a better Bill. It has strong support, but we know that key stakeholders still have major concerns. There needs to be strong commitment from the noble Lord, Lord Saatchi, and the Government to address these issues and ensure that there is full consultation on the regulations, guidance and codes that will enforce its implementation. The registration of innovative treatments will be crucial, and this will be picked up by my noble friend Lord Hunt under our amendment later.

Finally, I remind the House of the four key tests of what the Bill will achieve, which were set out to the House of Commons by the Health Minister, Dr Daniel Poulter. He said that the Bill must,

“ensure it does not … put patients at risk … deter good and responsible innovation … place an undue bureaucratic burden on the National Health Service; or … expose doctors to a risk of additional liabilities”.—[Official Report, Commons, 21/7/14; col. 999W.]

Again, I would be pleased to hear from the noble Lord, Lord Saatchi, and the Minister as to whether they consider that the Bill in its amended form will achieve this.

[Lord Woolf (CB)]

My Lords, I hope that I will be forgiven for not speaking before the noble Baroness, Lady Wheeler, addressed the House. Unfortunately, she responded more quickly than me in getting to her feet; thus, we have this order. The progress of the Bill has been a remarkable example of this House at its very best. The Bill has been very carefully scrutinised by people who have immense knowledge of the areas covered in the Bill. That does not mean that anything said by a particular Member of the House with undoubted expertise in this area is necessarily right in this matter. As is the case with many Bills, sometimes more than one profession can be involved. I suggest that this is an example where two professions, which in the past have been guilty at times of excessive conservatism, are involved and have been loud in some of the things that they have had to say. The other profession of which I am thinking is my own; lawyers are not always celebrated for their innovative approach. They have improved from the situation of not so long ago. They are more ready to accept change—indeed, they have been forced to accept it—than they willingly would have done in the early days when I was practising.

I have been criticised in letters I have received in a way in which I perhaps am not accustomed for my involvement in the Bill sponsored by the noble Lord, Lord Saatchi. Those who have asked me to identify cases by name and reference so that they can analyse the cases and show how they do not help any particular argument might be relieved to hear me say that if they want to know where I come from, I wrote a little book called The Pursuit of Justice. I focused on the medical profession at that time because I found that its conservatism was interfering with the pursuit of justice. As far as victims were concerned, one of the most difficult areas of litigation in this country was clinical negligence cases.

Both sides in those cases were put into great difficulty because of that conservatism. On one side were the patients who often wanted the doctors to say sorry. On the other side were the doctors who felt that they could not say sorry because if they did they would be admitting liability for negligence. So the two never met—and that, I am afraid, can happen.

I listened very carefully to the graphic examples given by the noble Lord, Lord Winston, of where he thought that the Bill could be a problem. In his first example, he said that there was a difference of opinion between his anaesthetist, who did not think that an unusual and innovative form of intervention was appropriate, and the noble Lord, who thought that it was appropriate in the circumstances. Happily, he took the initiative and acted in an innovative way. But if one pauses and thinks about what would have been the position under the Bill as it is at present, would it have made the situation more difficult or would it have alleviated the situation? I suggest it is quite clear that it would have done neither.

Medical Innovation Bill [HL]

Lord Woolf Excerpts

Friday 27th June 2014 Lords Chamber

[Lord Woolf (CB)]

My Lords, like those who have gone before me, I congratulate the noble Lord, Lord Saatchi, on his Bill and endorse the view of the law as it is at present, so clearly enunciated by the noble and learned Lord, Lord Mackay. What is important to appreciate—and, possibly, this may not have come through clearly in some of the speeches delivered today, although all of them were carefully considered and moderate in their tone—is the fact that the Bolam test, good as it is in the courts for determining questions of negligence, is not designed to deal with the question of innovation, although it has been tempered so that it does not prevent innovation, as it might otherwise.

Some time ago now, I had the task, given to me by the noble and learned Lord, Lord Mackay, of looking at civil justice and proposing reforms to it. The area in which there was the greatest need for reform was with regard to medical negligence and how such cases were conducted. There was a remarkable situation whereby doctors and patients were unable to speak to each other and had no confidence in what would be the consequence of doing so. The doctors on the one hand said, “We are threatened by these actions, which can ruin our lives and our careers”, and the patients on the other hand said, “All I wished was for somebody to say sorry for what happened, and no doctor came and said that to me”. The reason for that was that the doctors were worried that, if they did say sorry, it would be interpreted as an admission of negligence, whereas no sensible court would ever take that view.

I stress these matters because, at present, doctors do what I would regard as vital work, taking their courage in their hands and doing what they think is in the best interests of their patient, even though it involves innovation, while having no way of telling beforehand whether they can successfully comply with the Bolam test. The other thing that the law does not do at present is to require doctors to do what is necessary if they are going to innovate in a responsible way—that is, to be open about what they are doing, to make it clear that what they are doing is innovating and to take carefully thought-out steps to see that the cleansing effect of openness that we have heard about applies to what they do. One very important effect of this Bill is to set out a course that must be taken by a doctor if he is going to innovate. Those steps have been gone through in turn by the noble and learned Lord, Lord Mackay; they speak for themselves, and I do not propose to say any more about them than this.

In a Bill of this sort, you can try to find a balance between the dangers involved in innovation and the protections necessary in the interests of the patients, albeit that the patient may not be appreciative of that fact, and may be desperate for something to be done, while no responsible doctor should do what an irresponsible doctor would do. There is always going to be a danger, but there can be a balance. That is a word that really has to be applied with regard to consideration of the Bill. I suggest to the House that it draws a proper balance and takes into account the need to encourage innovation and remove barriers to innovation, while at the same time taking into account the risks by doing so.

The final thing that I would say about this Bill is that it is nonsense to suggest that the culture of litigation that now exists does not have a dampening effect on doctors. The doctors with whom I spoke when I conducted my inquiry made that clear, and doctors whom I have met in the course of my social life have equally made that clear. It is something that hangs over them. At the moment, the problem with the Bolam test is that it may provide them with protection when they get to court, but that is little comfort to doctors who have litigation going from stage to stage through the process to the courts, and whose lives are cast into the shadows by what is happening to them. It will be a great benefit that comes from this Bill, if that is removed by the open and transparent steps that it recommends.

[Lord Winston]

I apologise for intervening, as I understand that this is a time-limited debate, but this seems to me a very important issue. Every surgical operation in a sense is innovatory because anatomy varies from patient to patient, and many emergencies are highly innovatory when a patient is bleeding. Is the noble and learned Lord convinced that litigation may not be a problem in those circumstances where a surgeon decides not to innovate to try to save a patient’s life when they are bleeding? That seems a very difficult issue under law.

[Lord Woolf]

Of course, I fully accept that there is a problem in that situation and that not all doctors will be as brave as the noble Lord, given the innovations he told us about in his speech. Other doctors will take the less courageous course and, if faced with an emergency, will take what they feel is essentially the safe route, even though it may not be the best one.

Taxation: Tax Collection

Lord Woolf Excerpts

Thursday 4th July 2013 Lords Chamber

[Lord Newby]

There is considerable scope for HMRC to undertake the kind of discussions that the noble Lord describes. The additional resources that we put into compliance have been spent in no small measure dealing with exactly that. The amount of revenue that we have been able to recover has increased by a number of billions, but this does not deal with problems such as the ones that my noble friend Lord Teverson has described.

[Lord Woolf]

My Lords, 40 years ago I was junior counsel to the Inland Revenue for a time. At that time, I and the Inland Revenue understood the legal position to be that every taxpayer had the right to arrange their affairs to reduce their liability for tax. I understand from what the Minister has already said that it is proposed to reconsider that situation. So be it. However, until it is changed, does the Minister agree that the principle that I have just enunciated is still a good principle of law and one to which the Inland Revenue still has to have regard?

[Lord Newby]

My Lords, I agree that it is a good principle, but the problem we face at the moment is that large multinationals are able to order their affairs so that in some cases they end up paying virtually no tax, or nothing that is proportionate to the tax regime in any major country.