Y Pwyllgor Iechyd, Gofal Cymdeithasol a Chwaraeon - Y Bumed Senedd

Health, Social Care and Sport Committee - Fifth Senedd

23/10/2019

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Angela Burns AC
Dai Lloyd AC Cadeirydd y Pwyllgor
Committee Chair
David Rees AC
Helen Mary Jones AC
Jayne Bryant AC
Lynne Neagle AC

Y rhai eraill a oedd yn bresennol

Others in Attendance

Albert Heaney Llywodraeth Cymru
Welsh Government
David Sturgeon Undeb Amddiffyn Meddygol a Deintyddol yr Alban
Medical and Dental Defence Union of Scotland
Dr Matthew Lee Yr Undeb Amddiffyn Meddygol
Medical Defence Union
Emma Parfitt Undeb Amddiffyn Meddygol a Deintyddol yr Alban
Medical and Dental Defence Union of Scotland
Frances Duffy Llywodraeth Cymru
Welsh Government
Mary-Lou Nesbitt Yr Undeb Amddiffyn Meddygol
Medical Defence Union
Sarah Tyler Llywodraeth Cymru
Welsh Government
Vaughan Gething AM Y Gweinidog Iechyd a Gwasanaethau Cymdeithasol
Minister for Health and Social Services

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Amy Clifton Ymchwilydd
Researcher
Gareth Pembridge Cynghorydd Cyfreithiol
Legal Adviser
Lowri Jones Dirprwy Glerc
Deputy Clerk
Philippa Watkins Ymchwilydd
Researcher
Sarah Beasley Clerc
Clerk

Cofnodir y trafodion yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir trawsgrifiad o’r cyfieithu ar y pryd. Lle mae cyfranwyr wedi darparu cywiriadau i’w tystiolaeth, nodir y rheini yn y trawsgrifiad.

The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included. Where contributors have supplied corrections to their evidence, these are noted in the transcript.

Dechreuodd y cyfarfod am 09:32.

The meeting began at 09:32.

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datgan buddiannau
1. Introductions, apologies, substitutions and declarations of interest

Croeso i bawb i gyfarfod diweddaraf y Pwyllgor Iechyd, Gofal Cymdeithasol a Chwaraeon, yma yn y Senedd. O dan eitem 1, cyflwyniadau, ymddiheuriadau, dirprwyon a datgan buddiannau, allaf i groesawu fy nghyd-aelodau o'r pwyllgor i'r cyfarfod y bore yma? Allaf i ymhellach esbonio bod y cyfarfod yn naturiol ddwyieithog? Gellir defnyddio clustffonau i glywed cyfieithu ar y pryd, o'r Gymraeg i'r Saesneg, ar sianel 1, neu i glywed cyfraniadau yn yr iaith wreiddiol yn well, ar sianel 2. Dŷn ni ddim yn disgwyl y larwm tân, felly, os bydd y larwm tân yn canu, dylid dilyn cyfarwyddiadau'r tywyswyr.

Welcome, everyone, to this latest meeting of the Health, Social Care and Sport Committee, here at the Senedd. Under item 1, introductions, apologies, substitutions and declarations of interest, may I welcome my fellow members of the committee to this meeting this morning? May I go on to explain that the meeting is bilingual? Headphones can be used for simultaneous translation, from Welsh to English, on channel 1, or for amplification, on channel 2. We do not expect the fire alarm to sound, so, should it do so, please follow the instructions of the ushers.

2. Gwasanaethau Awtistiaeth yng Nghymru: Sesiwn dystiolaeth gyda'r Gweinidog Iechyd a Gwasanaethau Cymdeithasol
2. Autism Services in Wales: Evidence session with the Minister for Health and Social Services

Dŷn ni'n symud ymlaen, felly, i eitem 2. A dŷn ni'n edrych ar wasanaethau awtistiaeth yng Nghymru—sesiwn dystiolaeth gyda'r Gweinidog Iechyd a Gwasanaethau Cymdeithasol. Wrth gwrs, o dan eitem 2, bydd Aelodau yn gwybod y cefndir yma i'r materion awtistiaeth, ac mae hyn yn gyfle i'r Aelodau holi'r Gweinidog Iechyd a Gwasanaethau Cymdeithasol ynghylch hynt y gwaith o'i gwneud yn haws i bobl ag anhwylder sbectrwm awtistiaeth a'u teuluoedd gael cymorth. Bydd yr Aelodau'n ymwybodol bod y Gweinidog wedi cyhoeddi datganiad ysgrifenedig ar 23 Medi, yn rhoi'r wybodaeth ddiweddaraf i'r Aelodau am y newidiadau i wasanaethau awtistiaeth.

Felly, gyda chymaint â hynny o ragymadrodd, a gan ddiolch am y dystiolaeth ysgrifenedig yma ymlaen llaw, dwi'n falch iawn i groesawu Vaughan Gething, y Gweinidog Iechyd a Gwasanaethau Cymdeithasol, i'r bwrdd, a hefyd yn falch iawn i groesawu Albert Heaney, cyfarwyddwr y gwasanaethau cymdeithasol ac integreiddio, Llywodraeth Cymru. Bore da i chi'ch dau. Ac yn ôl ein harfer nawr, achos mae amser yn dynn y bore yma, dwi'n gofyn yn garedig i'r cwestiynau fod yn fyr, a hefyd i'r atebion fod yn gryno. Helen Mary i ddechrau.

We'll move on, therefore, to item 2. We are looking at autism services in Wales—an evidence session with the Minister for Health and Social Services. Of course, under item 2, Members will be aware of the background to the autism issues, and this will be an opportunity for Members to question the Minister for Health and Social Services on the progress in delivering improvements in access to support for people with autism spectrum disorder and their families. Members will also be aware that the Minister published a written statement on 23 September, providing Members with an update on changes to autism services.

Having said that, therefore, and thanking you for the written evidence submitted beforehand, I'm very pleased to welcome Vaughan Gething, the Minister for Health and Social Services, and also Albert Heaney, the director of social services and integration at the Welsh Government. Good morning to you both. And as is our custom now, because time is pressing this morning, may I kindly ask for the questions to be brief, and also for the answers to be succinct? We'll start with Helen Mary.

Thank you, Dai. We've had a number of independent reviews into autism services over the last couple of years. Can you explain why we need a further review? And what sort of additional information will the current demand and capacity review provide you with that we haven't got already?

Well, part of the reason for undertaking a review now is because we know that even with the comments we've had in the last few years, since we started off being the first country having a strategy, we actually still need to understand the level of demand that there is and the latent demand that is now coming through. And, actually, that's a positive. Because we're providing a more universal service—we've got the integrated service rolled out across the country—we're seeing more demand come through, and we need to understand what that real demand is. And we have to match up not just our ambitions for the service—what we would like to provide—with the reality of what we have. That's not so much the budget, actually; it’s really about our ability to provide both the diagnostic and the therapeutic support services and the work with different partners. So, it’s important to make sure that you’ll have seen the interim report that pointed out that we do think there’s more demand coming into the system. There’s more focus on diagnostic services, but there’s a real pressure point about follow-up services as well. So, it’s why, if we don't have the workforce to be able to cover that, we could just end up diagnosing lots of people and not supporting them, and so we need to think about how we do that.

And the point that I’ve made previously, and still is worth reminding all of us of, is that we don’t have a large group of staff in this area who are just waiting to be recruited. There’s real pressure right across the UK system. We’ve actually had people move into the Welsh system because of the approach that we’re taking—they’ve made a positive choice to come here. But even so, there’s real pressure still. So, it isn’t just a question of ‘spend more money, recruit more staff’; we need to train more staff—that’s why the workforce strategy matters, and that, as we all know, isn’t quick. We don't suddenly provide all of the people who we’d want within a brief period of time. So, the demand and capacity review will help us, again, to understand where we are as well as to help us forecast what we need for the future.

09:35

That's helpful. I mean, some of it is clear, but I’m sure you’d agree as well that, every day—particularly children, but it also applies to everyone—that somebody doesn’t have a diagnosis and doesn’t have support is a day, particularly with children, that they can’t get back. So, just thinking about where you are with this review, I think it was due to be completed this month. Is that going to happen and will the review include an evaluation of the effectiveness of current service models? Is that included in what this particular review is looking at?

Yes, the review is on track and it’ll be published, and it will have information in it about the effectiveness of what we’re currently providing. But that is more than one source; it isn’t just this one review that’ll tell us about that, because, of course, we’re learning as we’re doing, which is why our reports on each of the integrated services really do matter, about provision in different parts of the country, because we don’t want a mismatch between a report that says that everything is fine overall when, actually, services in different parts of the country will be in different places. So, I’m really keen that there’s honesty, which will make my life difficult because there will be real criticisms that will differ in different parts of the country, and Members, in your regional constituency roles, will see some variance in that as well. But without the honesty, we won’t get to where we need to be to understand what we need to do to deliver the improvement that families plainly deserve.

So, you’re talking, in those replies—and that’s really useful—about having the information to make the decisions. When do you expect to be able to make the additional decisions that need to be made about what the service model ought to look like nationally—all of the things that you’ll find out from the work that you’re doing now?

Well, we already have a consistent national pathway for adults. Some of the work that we’re doing is about understanding the capacity in neurodevelopmental services. So, on each of those, I’m expecting, through the rest of this year, to have enough information to make more choices and to understand whether there are still gaps that we need to address. But I don’t want to try and forecast that I will definitely know by a fixed point in time. What I can say is that, when we have the review, we’ll publish it, once we’ve considered it, together with the response that we provide and how that does or does not affect the work that we’re doing on the code as well. It’s important to see all the things as joined up as possible.

Diolch, Cadeirydd. Based on that—and I'll come back to your question on funding and workforce in a second—you have undertaken a review and you’ve got the evaluation report produced. That had several recommendations within it, and one of those recommendations was actually to do more work so that it can inform your decisions on the developmental needs of children with attention deficit hyperactivity disorder and neurodevelopmental disorders. I suppose what we’re trying to work out initially is: are you going to accept the recommendations, because there are gaps there to do that additional work so that you can inform your decisions on how you can take forward the needs of the children?

Well, it’s not hypothetical. The report says—it’s a recommendation— further work to inform the development of services.

Yes, but then the work that we are doing will help us to inform the choices that I get to make and that I have to make, and I’ll be completely transparent not just about the recommendation, but about how we propose to take that forward, and when I have a definite decision to make and that I will make, I’ll be clear about that. But, of course, on the point about the recommendation, about the recognition that there is more work to be done, yes, and what I can't do is tell you exactly what the decision will be, because that’s about matching up the relative resource that I have. But in terms of taking the recommendation seriously and looking to do that work, yes. I just can't tell you the exact bit at the end of that, and that's where I think it's still a bit hypothetical, because that's work that needs to be done to get there.

09:40

I accept you can't that tell us what decisions you will take, but you've told us that, basically, you are continuing the work to inform those decisions. Okay.

The report also highlighted the concern of the miss-match between demand and capacity, which, in a sense, is disappointing, because, I'm sure, in the debates we've had over autism Bills and everything else, it was clearly highlighted that once something was in position, demand would increase, because we all know from our constituency work and regional work that people want to see these services improved, there is a demand for these services and there's particularly demand for assessments. In that sense, how are you going to do that? Because one of the questions was that funding needed to be in place. You talked about the workforce. We need to ensure that the workforce is funded. We need to ensure training is available. We need to close that gap between demand and capacity. Are you going to commit yourself to funding to ensure that gap is closed?

Obviously, the budget isn't really the biggest challenge; it’s actually about understanding what we need to do and then how long it might take to get staff.

I completely accept that budget is a factor, I just want to be honest though. We're about to go through budget scrutiny in this place, and within that there will be demand about money going in different directions, and there's only so much that is available. But in terms of the priority that this area has, I've already indicated funding until the end of this Assembly term, unusually, and I intend making the funding recurrent to improve autism services. So, I think that should give people some real confidence that there's a recognition that some long-term commitment is needed.

I then need to see the reality of what the workforce planning looks like in terms of the ideal number of staff we want to have, how long that would take, and what we'll need to commit. And the reason why I'm just adding in what I think is an important and an honest caveat is that if that report recommends a level of investment and staff that we can't actually deliver, because of the variety of constraints that we have, I'll need to be honest about that. But I do recognise that there's going to be a demand and an expectation that I recognise and I expect to be able to meet, to invest more in the workforce to deliver the sort of services that we want, because at present we do have a miss-match between demand and capacity.

So, yes, there will be workforce investment. What I can't do is give the sort of guarantee that lots of other areas would want too, that whatever the recommendation is the resources will be found, because I can't tell you about all the resources we have within the Government to meet all of the demands. So, I just need to be honest about that. Because otherwise I think I can give everyone a guarantee that everything will be fine and that we'll always have the money to invest in workforce, and yet, every year, we have to make compromises on what we're able to do, because of the reality of the financial position. That’s before we get into people arguing about how big the health budget is and whether, actually, we need to take money out of it to put somewhere else, which other committees will understandably ask questions about through the budget process.

Can I ask a question on demand and capacity? Because, obviously, many people highlighted the pressure of demand in previous debates. But at this point also, we're in a situation where I've got constituents who are telling me that the only way that they can get a referral to an assessment to start with is through the school. Very often schools are hesitant to do so. So, actually, demand could increase as a consequence, if you decided to say, 'Well, consultants can refer in for an assessment', because I know where a consultant has referred in and has been told, 'Sorry, it’s got to come from the school.' So, if you change the situation as to who can refer in, demand will increase. So, are you going to factor that into your considerations? Because these are young people who need assessment and then need the support the assessment will identify. Letting them down by waiting is something we shouldn't be doing. So, how do we ensure that the support and the capacity is there to deliver that? And that means you have to project further, perhaps, the demand.

And that's why the work on the demand and capacity review matters. So, going back to the first question about why we're still looking at demand and capacity, it's because we know there's more demand coming into our system. So, to take your point, yes, we do need to try and understand better the level of demand and the capacity we have within our system and we then add to that. And that comes back to the honesty about making choices for this part of the system, and what we're able to do, both to meet the demands of people in diagnostic services as well as the therapeutic support that they will want and need. And that goes into more than one area. To be fair, I recognise fully the point that you're making and I'm not trying to avoid it. I'm just being honest about the fact that, yes, I know we need to do more of that; yes, I know that it will require investment, and this will take time to get to the point where all of us, including me, would say that we're happy that we have all of the right staff in all of the right places to meet both the demand that exists and the capacity within the system to do all parts that we'd want to do. And I recognise it's much easier for me to say that objectively; it's much more difficult for a family watching this who say, 'Well, what does that mean for me?' And I'm not trying to avoid the reality of that either.

09:45

Can you give me your assurances that you will look very carefully at who can refer in? Because if you leave it to just schools, that is a real difficulty. It's a reality and I've seen it myself. Some children in schools behave normally, or behave better, because they're in a different environment. As soon as they go home, in their normal environment, they let loose. And therefore, schools don't always see the full picture; the consultants might see it and doctors might see it. So, it's a question of who can refer in.

And I don't try to walk away from that either, Dai, because this is part of what I was trying to get to in answer to some of Helen Mary's questions as well, is that we know that, actually, there's different practice in different parts of the country. In other parts of the country, they would not have the same experience that your constituents do about who does and doesn't refer in to the system and how the system currently works. That's part of what we'll want to see levelled out and made more consistent in terms of local practice matching a national referral pathway, and about who can refer in and how those referrals are then managed, because I would not say to you or anyone else that it's fine with me and it's perfectly acceptable for that variation to exist. So, yes, I know that's there and, yes, I know it's a problem and, yes, that is part of what we're looking to address in improving autism services across the country.

Yes. Thank you for your questions, or your answers, so far. I hold a regular roundtable in my constituency of people with lived experience of autism, and I think it's fair to say that they're in a fair bit of despair because they just feel that this whole thing is dragging out for a long time. I understand your reasoning, you've got to know what the situation is, you've got to know whether you've got the staff, where you're going to deploy them, et cetera. I was just slightly uncomfortable about a comment you made a little bit earlier about, 'Once we know everything, then we're going to have to see if we can take money away from another part of the NHS and other committees will have a comment about that.' I'm sure that was not meant the way it might sound to the people who will go through this because, actually, it's not setting up families who have lived experience with autism against other families with other problems. Everybody is in trouble, everybody needs help, and I would hate for the people whom I know well to think that it's all about a constant battle, because it really shouldn't be.

And talking about a constant battle, one of the areas that they are concerned about is what's happening with the code. I guess you can't put the horse before the cart, but can you please explain why the code hasn't come this year, despite the agreement that it would? And I understand you're going to go out for another consultation on it. Can you please explain your reasoning behind that, so I can go back to my constituents and explain it to them?

Yes, I think it's important to deal with the funding point because I've made investment choices long term—additional investment that is recurrent in this area. So, that really does underscore the priority and, to be fair, the National Autistic Society recognise that as well. It's just some honesty about the fact that there is only a finite budget, and I will have to make choices across the whole of the health area. And I know, as in every year, that there'll be people looking at the size of the health budget and saying, 'We should have money; money should come out of the health budget.' And if we were in a different committee, if I were going to a committee with local government, there'd be people saying, 'Money should come out of health to go somewhere else.' And it's just the honest reality. The money that we have has to reach—

And that's the point that I'm making; I'm just making that point. But within that, I've made longer term choices to invest in this area.

On the understanding of how we'll actually have duties around what's been provided and the work on the code, actually, there's been lots of work done with a variety of stakeholders, including autistic people themselves, including work with the National Autistic Society. Some of the technical groups we have, the National Autistic Society attend. There's another round of meetings coming up in November. Part of the reason why we're not going to have the code and all the guidance to consult on until the spring is because of the work we're actually doing in listening to autistic people. They wanted to have more input into the guidance that goes around the code. And I think that's important because it does actually show that we're listening rather than saying, 'No, I'm going to publish it anyway', and, 'It's tough, you'll just have to deal with the consultation.' I'm trying to get some of this right before we go to the formal consultation.

So, this committee will have a draft of the code before the end of this calendar year, as I said in my written statement. I then expect to be in a position to have the full consultation take place with the guidance and with the input of autistic people who are taking part in the consultation. If it's helpful, Chair, I'll happily provide a note for you that'll set out some of the work we've already done on engagement and some of the work that we're already planning to do, so that you can see the variety of groups of people that we are working with and listening to to try to make sure that we get this right.

So, it's about getting it right and meeting the commitments to make sure that there is a code with guidance that makes it easier to understand for families themselves, as well as services across health and social care about what their balance of responsibilities is and how they're supposed to meet those, and how families understand how they access the support they should have. 

09:50

Helen Mary's got a brief supplementary on what you've just said.

It's a really, really brief supplementary about the code, and perhaps we can come back to this. You've just said there about people understanding across health and social care. Of course, for children with autism, education is key, so will the code apply to education services too? I'm assuming that it will, because it's one of the difficulties, isn't it? You've got to have one Minister who's in charge of something like this, but, in this case, it cuts across a whole range of public services, doesn't it?

Well, the code's being issued under the Social Services and Well-being (Wales) Act 2014 and also the National Health Service (Wales) Act 2006, so it will definitely apply as a statutory code that applies to health and social care. The main statutory instrument, if you like, in education is the additional learning needs legislation this Assembly's passed as well. It should be consistent across those in dealing with the reality of the different statutory services that have to work with each other. So, yes, I expect we should clarify where the crossovers are between social care, education and health, but the code—the statutory code—applies to issues across health and social care.

Just very briefly to add to that: indeed, the work that's currently taking place is looking at how we can better support teachers and how we can better support those who are identified within schools with additional learning needs, particularly in this area as well.

Just that point. So, when you referred to that people for autism would have to—. Basically you'd have to make a review of your priorities. Of course, that's absolutely your role as the Minister for Health, but what you were talking about, for clarity, could you confirm whether it was talking about whether or not more money should go from other portfolios into health, or were you referring to people with a lived experience of autism having to fight for funding from within the health budget?

No, the choices I make, and that I've already made, make clear that I've put longer term funding commitments into improving this area. It's about the recommendations for the future and my ability to fund every single part of that. But that's a choice that I make across the whole health budget.

I will have to stand up and confirm how and why I'm investing in different parts of the services that I'm responsible for. But, I've made long-term budget choices already, and that is unusual. There are other service areas that don't have that longer term commitment.

Okay, some agility is required now. Obviously, Jayne is one of my favourites in producing the goods as regards agility. Jayne.

That's pressure; thank you, Chair. One of the committee's recommendations included calls for the Welsh Government to increase the provision of direct ASD support services across Wales, beyond the services currently offered by the integrated autism service. The Welsh Government agreed to that recommendation. What action are you taking on this? Perhaps you could give us some examples of how you're taking that forward.

We're looking, for example, at the work we do with non-devolved entities—the Department for Work and Pensions, for example, in terms of employability support. We can give you individual examples of where that's made a difference because of work that's been done, and that's generally about listening and working with individuals and understanding how to meet their needs, and reflecting back what they say about that as well.

There are examples where people have worked on employment and training, and the recognition of what that person wants has meant they've gone down a different route, but that's met the needs of that person and has changed their life. So, actually, we do have examples that go beyond, if you like, the straight health and social care provision, but are more about the broader lived experience. If you want us to come back with examples, we can do from each of the integrated services. I don't think that would be problematic.

Okay, thank you. Just going on to the point about employment support, because another recommendation of the committee's report was to take urgent action to address the clear need for employment support for adults with ASD, what action has been taken following the report to improve access to employment for people with ASD?

09:55

We've actually had a couple of linked guides for employment and training support, both a guide for work-based training providers, and also a guide for work-based learning providers. That was launched at the end of September recently, and they were developed in partnership with both the National Training Federation Wales and a number of providers, including ACT Training, and the national autism team helped to lead on the work. So, we are looking at how we make provision for providers to understand their responsibility, as well as how that goes into making sure that we have the feedback directly from autistic people themselves about the adequacy and the level of support, and whether it's meeting their needs as well. 

Thank you, Chair. Can I go back to the issue of education? The committee made a recommendation that all staff should have training in understanding autistic spectrum disorders. Can you give us more of an update on that? From my point of view, I'm particularly interested in how it links with the work that's being taken on a whole-school approach to mental health, because we had a really good discussion about the guidance that is being brought forward at the last meeting about the need to ensure that the needs of children with ASD are fully integrated into that.

Yes. So, there's the proposal that would have been done on initial teacher training that started in September this year, where there's a requirement to develop student teachers' knowledge and understanding of the additional learning needs transformation programme. So, that's being plugged into the new generation of teachers. And I think the work that goes across on the links into the whole-school approach, you should see some consistency there in the way that this works, not just because you yourselves get to observe the work that we do on that, but also in the response that not just your committee will have, but then the future scrutiny that I look forward to with my colleague, the education Minister, about how far we're moving and what more needs to be done. So, there is work that is being done on the additional specific professional learning offer and additional learning needs co-ordinators, and their role within the system for teachers already, as well as initial teacher training. 

Okay, thank you. You've dealt with the code in your answer to Helen Mary, so can I just ask about data collection, because the committee was very concerned about the lack of data, really, and we still haven't seen the new data? Can you tell us where you are on a GP register, and when we are going to see the data published on young children and young people's waiting times in a consistent way across Wales?  

Okay. So, on the register, there's a meeting imminently between officials and the SAIL team to look at the current data analysis from primary care, and they're developing a new data collection method to assist with that, so the primary care side is being dealt with. And, on waiting times, part of our challenge was that we weren't in a position to publish data that would be properly comparable and meet the accuracy and robustness of official stats, as we wanted to earlier this year. There is an ongoing review, and I think it's probably more helpful for me to write—because I don't have the detail to hand—about when we expect to be able to do that. So, rather than me sticking a finger in the wind in front of the committee, I'll go and find out and I'll write back to you. 

Diolch yn fawr, a reit ar amser. Dyna ddiwedd y cwestiynu. Diolch yn fawr iawn i chi, a diolch yn fawr iawn i'r Gweinidog yn y sesiwn yma a hefyd i Albert Heaney am eu tystiolaeth y bore yma. I gadarnhau, byddwch chi yn derbyn trawsgrifiad o'r trafodaethau yma er mwyn i chi gadarnhau eu bod nhw yn ffeithiol gywir.  

Thank you very much, and right on time. That's the end of the questions, so thank you very much, and thank you to the Minister for this session, and also to Albert Heaney for his evidence this morning. Just to confirm, you will receive a transcript of these deliberations for you to check that they are factually accurate. 

3. Bil y Gwasanaeth Iechyd Gwladol (Indemniadau) (Cymru): Sesiwn dystiolaeth gyda'r Gweinidog Iechyd a Gwasanaethau Cymdeithasol
3. National Health Service (Indemnities) (Wales) Bill: Evidence session with the Minister for Health and Social Services

Nawr, rydym ni yn symud ymlaen yn ddirwystr ac yn ddiffwdan yn syth i eitem 3, a craffu ar Fil y Gwasanaeth Iechyd Gwladol (Indemniadau) (Cymru). Dyma sesiwn dystiolaeth eto gyda'r Gweinidog Iechyd a Gwasanaethau Cymdeithasol. Wrth gwrs, o'r cefndir, bydd Aelodau yn gwybod bod yr amser yn brin oherwydd amserlen dynn i graffu ar Fil y Gwasanaeth iechyd Gwladol (Indemniadau) (Cymru), a dyma fydd unig gyfle yr Aelodau i graffu ar waith y Gweinidog Iechyd a Gwasanaethau Cymdeithasol mewn perthynas â'r Bil yma.   

Cyn i mi ddechrau, mae'n rhaid i mi yn bersonol ddatgan buddiant yn hwn fel meddyg teulu sydd wedi talu indemniad meddygol yn y gorffennol, er nad oes budd uniongyrchol gyda fi yn y mater penodol hwn dan sylw, gan fod indemniad rŵan yn cael ei ddatrys ar lefel y practis bellach, ac nid ar lefel personol. Ond dwi wedi cael fy nghynghori i ddweud hynny bob tro rydym ni'n ymdrin â'r mater hwnnw, fel dwi'n dilyn y trywydd yna. 

Dwi'n falch iawn o groesawu i'r bwrdd eto Vaughan Gething, y Gweinidog Iechyd a Gwasanaethau Cymdeithasol, Frances Duffy, cyfarwyddwr gofal sylfaenol a gwyddor iechyd, Llywodraeth Cymru, a hefyd Sarah Tyler, cyfreithiwr, Llywodraeth Cymru. Bydd y Gweinidog wedi cael digon o amser nawr i newid ei ymdrechion ymenyddol i faterion yn ymwneud ag indemniadau, felly awn yn syth i mewn i gwestiynau gyda Helen Mary Jones. 

We move on now with no fuss to item 3, and the scrutiny session on the National Health Service (Indemnities) (Wales) Bill. This is a session with the Minister for Health and Social Services. Of course, just to remind you of the background, Members will know that time is limited because of the very tight timetable to scrutinise this indemnities Bill, and this is the only opportunity for Members to scrutinise the Minister in relation to this Bill. 

Before I begin, I have to declare an interest in this as a GP who has paid medical indemnity in the past, although there's no specific interest at the moment as indemnity is now resolved on a practice level, and not on a personal level. But I have been advised to say that every time that we discuss this issue, so I am following that protocol. 

I'm very happy to welcome to the table again Vaughan Gething, who is the Minister for Health and Social Services, Frances Duffy, who is the director of primary care and health science at Welsh Government, and also Sarah Tyler, who is a lawyer at Welsh Government. And the Minister will have had enough time to change his thoughts over to indemnities, so we'll go straight into questions now, beginning with Helen Mary Jones.

10:00

Thank you, Dai. Just for the record, Minister, can you briefly set out for us what the current indemnity arrangements are for GPs and explain why the new proposed arrangements are preferable?

Well, before the reforms we started to introduce, GPs were responsible for paying their own indemnity insurance, just as lots of other professionals. When I was a lawyer, you had to have professional indemnity insurance to provide against claims that may or may not be made, either in statutory claims or, indeed, the good old-fashioned tort of negligence. So, that became a growing problem, as indemnity insurance fees rose progressively, and it caused a real problem for a number of GPs who looked again at whether they wanted to remain in practice, or remain in practice for the same number of sessions. That included both in-hours and out-of-hours and a variety of work. There was a particular challenge when the personal injury discount rate changed, and that produced a significant increase in indemnity insurance rates. And that meant that, for a number of GPs, they really were looking for the door to leave. So, Governments across the UK recognised that there was a need to intervene to make sure that indemnity insurance was on a footing where it was affordable, and that's why we now have state-backed schemes being introduced. 

We've already introduced a future liabilities scheme. That's in place. What we're now doing with this Bill is we're looking to deal with the existing liabilities scheme—so, liabilities that have already crystallised or claims that may be made about past practice. So, what we're doing in this Bill is we're looking to have a state-backed scheme to deal with those claims that have yet to be made or may exist from the past and are not covered by a future liabilities scheme. And we needed to amend the primary legislation to do so, because the powers that we're able to use to deal with future liabilities don't specifically apply to providing an individual indemnity to individual general practitioners who have paid a premium in the past—so it's, if you like, lifetime cover going backwards. So, that's why we need to make an amendment to the Bill, to give us the powers to do so. If we don't take the powers, then there's a real risk we won't be able to provide the scheme.

And that's not just an individual problem for indemnity insurance rates for GPs and whether they're willing to stay in, but actually it's a problem for the ability to have a comparable system between England and Wales. There are plenty of differences between the two Governments, but there is a practical and constructive relationship on this, where there's a recognition that it's not in the interest of GPs, whether they practice in England or Wales, to have significantly different systems. There has been work between officials about how to develop the schemes and regulations. So, the two Governments have worked in a constructive way on this. So that's, if you like, a short history about why we are where we are and why we need to take powers in this Bill to provide direct indemnities to general practitioners working in our system who have worked in our system in the past. 

That's helpful, and I think that answers the question about the purpose of the legislation, Dai. Just a supplementary question, picking up on the Minister's points about the recruitment and retention of GPs—have you any assessment as to what impact these changes are likely to have on improving recruitment and retention? 

This, presumably, won't really apply to recruitment, because this is retrospective, isn't it?

But is it your assessment that it will have an impact on retention?

Yes. So, look, it's a real concern for general practitioners—and we can talk about this generally, because we know that this is a real issue of concern for them when they're seeing the premiums going up significantly. We've previously put money into the GP contract to assist with indemnity insurance, but, actually, that as a methodology wasn't going to work and to be genuinely sustainable. And it's also why, within the other work we're doing outside the Bill, the conversations we're having with medical defence organisations themselves—. So, I think it'll help us with retention—not just, if you like, the technical part of the scheme, but, as we all know, there's a point about motivation and whether you think people are on your side and understand you. And, actually, for general practitioners, if we just left this as an issue, regardless of, if you like, the individual financial challenges, I think there would have been a larger impression that actually Governments plural weren't really interested in addressing a real problem for them. And that wouldn't just affect general practitioners themselves, but of course the public who rely on the service.

10:05

And just finally, Chair, if I may, do you expect this arrangement to represent better value for money than to continually try and deal with it, as you said, through the funding in the GP contract?

Yes, I do, because apart from anything else that means you're having to annually negotiate and not understand all of the architecture around you about what's going on. So, that's why we've engaged both external legal support but also financial advice so that we can have some assurance about the value for money of the scheme itself. 

That's helpful, thank you. I don't think I need to ask about the purpose—[Inaudible.]

Yes. Thank you. Obviously, picking up from what you said to Helen Mary, I assume that because you've had to make the change to primary legislation to enable this—is that why it didn't happen at the same time as the previous changes that you made to the insurance?

Yes. We had powers already to do the future liabilities scheme. But it's also because there is work that we're doing together with the UK Government acting as the Government for England on this as well. And so we want to try to make sure that we're developing schemes that make sense with each other too. Because there's not just a cross-border flow of staff, there's a cross-border flow of patients as well.

It's obviously a very welcome development, this whole thing, but reading all the evidence I was just a bit concerned by the difference of opinion that's arising between the Medical Defence Union, the Medical Protection Society and the Government as to how well developed the discussions are. So, if I read from the Medical Defence Union, they say:

'To date, however, the Welsh Government has not entered substantive discussions with the MDU regarding the level of asset transfer that may be required.'

Now, to be fair, MPS are saying that they're in advanced negotiations with the Welsh Government regarding the transfer of assets. And I believe there's a third union. Is it correct that there are three unions?

So, can you just go through the different stages, where we're at with the Medical Defence Union? Why does MDU say that they've not had any substantive negotiations with the Government? Whereas your explanatory memorandum is very clear that you think it's going to be about £100 million, if you haven't had those negotiations then you can't be sure of that figure.

And also MDU do make quite a pitch about the fact that, because this wasn't done in a more timely fashion, GPs have stopped paying their subs, and so they're going to have ongoing consequential liabilities that they cannot afford because the GPs have already dropped out of their scheme, whereas schemes would normally have to keep running in order to—. Well, as you know only too well, given your previous occupation, these schemes need to keep running in order to have the funds to be able to pay people out in the future. So, could you just give us an overview of where we're really at, because there does seem to be a disparity from witnesses?

Well, each of the three organisations, as they're entitled to, take a slightly different approach to their engagement, not just with this Government but with the UK Government as well. We have made the same offer to all of them in terms of our willingness and openness to engage in practical conversations and negotiations about the future.

So, going back to the point about having independent financial advice to the Government, that's about understanding what would happen with an asset transfer to be made to try and cover liabilities. So, obviously, I can't go into the details of what each organisation has provided, because that's part of the commercially confidential nature of the engagement we've been able to have, but we're at a more advanced stage with two of the three medical defence organisations, because we've been able to have a more open conversation with them based on information about how they're operating and what the asset transfer may or may not look like.

So, we've pretty much got there with one. We expect that with the Medical and Dental Defence Union of Scotland we should get there fairly soon as well—I think they indicate that in the letter they've written to the committee as well.

And I certainly hope that we'll get the MDU into the same position. So, our offer remains the same: it remains that we are ready and willing and keen to have a more detailed conversation with them and to offer the same sort of commercial confidentiality to have that around, so we all understand what we're trying to do, and I'm optimistic that we will get there. But there's plainly a different spin about the past. I don't want to try and engage in a row about the past; I'm more interested in getting to the point where we can all sit down now to agree how we deliver this, not just for the MDU, but of course, for their GPs who are paid indemnities and what that means for the future.

10:10

I totally understand that you don't want to say anything here in public that might jeopardise your negotiations with them, but my concern is that if the MDU—. And their evidence is quite strong; they feel that they're not being talked to by Welsh Government. So, I guess we'd like to have assurance that there are ongoing negotiations and it's not just a 'here's the deal—like or lump it', because that's never a great negotiation.

But, secondly, what plan B do you have, if they actually don't want to do this or refuse to or—? Is there an outcome that could be horrendously wrong and that would end up giving you an awfully big liability? I don't know—how would it work if two signed up and one didn't? And also, could you just say whether or not—. Out of those three, you've said that one is a very small operator, but, out of the other two—Medical Protection Society and MDU—is MDU the bigger out of the two? So, would that have more consequences on any forward planning?

Of the two that are in a different position, MDDUS is the smaller of those two. MDU is a big player, though, and we are keen to get to the point where we can reach agreement with them. So, we are keen to move on and we've made offers about how that could be done. And mediation is a possibility, if it helps. We are not on a mission to force them to transfer their assets, because part of the point is that the Bill is one thing and it's about giving us the powers to introduce a scheme. What that scheme will look like and how we then use the resource behind that is different, because that isn't really the Bill; that's the practical operation. But, within that, we can't get to that point without having a proper understanding of assets and liabilities to be exchanged and what that means. So, that's the nuts and bolts we need to get to to have something signed off. With two out of the three, we're in a much better position because we've had those conversations, and we want to have those conversations with the MDU, and I'm hopeful that we can do in the near future.

It's an issue for the Government, but it's an issue for them and their members as well, and the danger is, of course, that if we don't get that engagement, then there's an issue about those members who've paid premiums to them in the past and how they'll feel. Now, I think that it's in everyone's interest to sit down and to talk openly about what's possible, hoping that, with the wrap of commercial confidentiality around it, they can have assurance that that information isn't going to be leaked, placed in the public domain or used in a different way, but we need to have the same sort of conversations that have taken place with two out of the three players within the UK market as it stands.

And have you done any contingency planning for if you cannot get an agreement with MDU? What happens? Does it stop the whole Bill? Do you process—?

No, it won't affect the Bill, because the Bill will give us the powers, but the challenge will then be about how far a state scheme goes. And if the MDU don't reach agreement, then the current MDU members will proceed on the basis that their cover is with the MDU, not with a state-backed scheme. So, the powers to deliver the scheme—that's what the Bill is about. The practicality of having everyone covered by that scheme, that depends on the negotiations and the agreement to be reached about the transfer of assets and liabilities, and the openness about what that currently looks like. Now, with two out of the three, I am robustly confident that we will get there and we will be in a place to do that. If the MDU, as a third player, aren't there, they'll then need to carry on, and that's problematic, and I think it would be much better for everyone if we could have consistency in the shape of the scheme. But, as I said, I'm not in a position to force them to do something different.

So, would a member of the MDU still have to continue to pay their subs to the MDU if they weren't having current cover, because they were in the new scheme for current cover, but this is for existing liabilities—stuff they don't even know might appear, which might appear once they've retired or however many years down the road?

Yes, so on premiums they've already paid, well, that depends on their membership and the terms of their membership within the scheme. And I'm not aware of the terms on which those indemnities have been paid in the past or, indeed, whether current MDU members expect to carry on contributing. But I don't think retired GPs carry on contributing to indemnity, so this is about existing liabilities, not future ones. But that's a question for the MDU and one that we're keen to answer with them by having that conversation.

10:15

Clearly, the RIA has indicated only £30,000 cost for administrative costs, but the transfer of assets would be the major aspect. You just highlighted that, if you don't get an agreement with one of the three, then you'll have to just work with the other two, and that one will stay by itself. Are you confident that, whichever way it pans out, you'll have 100 per cent coverage of the funding of the liabilities through the transfer of assets, of the liability you'll be doing as a consequence of whichever deals you agree?

I just want to take a step back and be clear—the Bill, and the cost we've indicated are passing the Bill and then the regulations to deliver the detail of the scheme. So, that's what the £30,000 in the impact assessment is for. The asset transfer is an exchange of assets and liabilities, and is a different commercial negotiation between those three organisations and the Government, about how that scheme works. Because that isn't, actually, about the Bill; that's about the practical asset transfer. And that, again, depends on the negotiations that take place. As I say, with two out of the three, I think we're in a good position, and general practitioners and the public they serve can be confident about that, and we definitely want to get there with MDU as well. So, I'm trying to deal with the policy and the practical delivery of the policy, and then the bit that is just the Bill and the legal operation of the Bill and how the scheme would work. So, I don't think it would affect the scheme, necessarily, but I think we'd be in a better place to deliver the scheme with the regulations if we'd resolved this part, in terms of the asset transfers and exchange of liabilities, before we got into delivering the scheme and the regulations. But that's a practical point.

Okay. I accept that. But, obviously, the consequences of the Bill have the possibility of liabilities placed upon the Welsh Government, and the asset transfer is there to actually cover those liabilities. So, what I'm asking is, are you confident that the asset transfers will cover 100 per cent of your liabilities as a consequence of the Bill?

Well, no, we can't be robustly confident about that, but that's part of the point about insurance and the way that it works. That's part of the evidence you get about the nature of the assets being transferred, about the understanding of the liabilities. But, as we know, there are some things that you won't know are there until they're crystallised, and that may not crystallise until some point in the future, when a claim is made. But actually, within the negotiations that we've undertaken, we're looking at what would happen in terms of the level of liability cover provided and ongoing responsibilities for medical defence organisations as well.

I don't want to say something imperfect that would be unhelpful. If there are specific questions you want answered, it may be more simple to do those in writing, just to be clear about the level of cover, because I don't want to go outside both things that I know about what is within commercial confidentiality and things we could helpfully tell you about how we expect that scheme to operate. In broader terms, it may give you some comfort about that. But, of course, that doesn't affect the technical passage of the Bill and the powers.

If you're prepared to write to committee on that matter, it would be helpful I think, yes. Can I go back to the regulation-making powers, then, as a consequence of the Bill? Clearly, you have some regulation-making powers now, but the Bill gives you more regulatory powers. When do you intend to use those? But also, you highlight very much the negative procedure. Is there any purpose as to why it's negative and not affirmative?

Because we're amending the National Health Service (Wales) Act 2006, and all the regulations made under this particular scheme use the negative procedure. So, if you wanted—this was a point we rehearsed in the Constitutional and Legislative Affairs Committee earlier this week—to have a different process for regulations, we would have a standout process just in this one area. We're actually amending the primary legislation to introduce more powers to make regulations, but with the same scheme for them, so it's consistent within the Bill. And, of course, with the fixed liability scheme that we've already introduced, that went through under the negative procedure as well.

So, you're saying that the reason it's negative is because it's consistent with what's already in place?

Yes, and what we've already used for the future liability scheme as well.

And can you confirm also perhaps that the existing liability scheme will provide cover for the practice, not just the GP? Because we know the Welsh Government is moving towards a different type of approach in general practice and primary care, where there are more different professionals working within that practice. So, will the scheme actually cover the wider practice professionals as well as a GP?

10:20

So, it's for the individual contractors who provide that service, and all those people who've paid a premium. So, it's all those individuals who have paid a premium in the past who will be covered by the existing liabilities scheme.

It includes practice staff, whether they be salaried GPs, locum GPs, practice pharmacists, practice nurses, et cetera. So, it includes the practice staff.

Yes. We received correspondence from Health Education and Improvement Wales, and they are telling us that there's no current indemnity for educational supervision provided by GPs, consultants and other medical practitioners. Obviously, that's a bit of a gap. Is it your intention—and, obviously, it's not for the Bill; I guess it's for the scheme itself rather than the Bill—to cover medical practitioners in regard to the education services that they're providing if a claim is made by a student of some malpractice by the GP or whoever is training them?

I think there's a misunderstanding because that isn't professional indemnity cover that we're dealing with. I think that's a matter for us to resolve with HEIW about educational activities. They're not covered in the scheme of the Bill. I think they're making a different point that is outside the Bill and outside the powers that we're taking here, because that's not the provision of a clinical service. That's education and training, and, effectively, they're employees of HEIW when they're undertaking that work. So, I think that's a different point.

I take that, and it makes perfect sense, but you will address that with them, because, obviously, some sort of cover is needed—whether they should be providing that cover or HEIW should provide that cover. Somebody needs to.

We can address that with them and, between us, we can come back to the committee and confirm that that's being addressed. But just to be clear, that is not within the Bill, and it shouldn't be, either.

I think the point that they're trying to get at is, obviously, training juniors—medical students or junior doctors—they do things in a clinical situation to patients under the direct supervision of a consultant or a GP, with our registrars, that we are—the GPs or the consultants—are responsible for but they don't actually do it. It's educational supervision in the clinical context, not lecturing to them now, which, I take it, is outside, obviously. So, the point is about whether the type of educational supervision in the clinical situation is covered or is not covered. That's what we're trying to arrive at.

What is covered at the moment is the clinical practice of trainees, et cetera, in practice. They have raised a specific point about the liability of their trainers in giving training but not in the clinical practice. It's a point that they have just raised with us, and I've written to Legal and Risk, who operate this scheme, and it's about the future liabilities scheme. And so, we were waiting for a response from our lawyers in giving the exact detail of that.

Thank you, Chair. Just to clarify, then, the existing liabilities scheme will cover a GP who is working as a locum at the time the claim was incurred. Is that right? Okay. Fine. And are there any other aspects of a GP's work that would not be covered by an existing liabilities scheme?

It wouldn't cover private work, complaints involved in coroners' cases, GMC hearings. Those are the main areas that it wouldn't cover. But that's on the same basis on which they understand the indemnity cover's being provided already. So, it's standing behind the cover they've already had for their existing liabilities.

Okay. And just on time limits, our Chair of this committee referred to some examples of there being gaps of 20 years and more between an incident and a complaint about that incident being brought forward. Just about the time limits, it would be good to have clarification, if there are time limits on claims, whether it would make a difference how far back in time the claim was incurred.

No. The time limits point is really relevant to how a claim is made and the time limit that someone who wants to make a legal claim has, because you may not be aware of the actual complaining of, and the consequence of it may not manifest at the time. So, if, 10 years after the event, you realise that you've been misdiagnosed, and that's had an outcome for you, it isn't that the three-year clock to do something starts ticking from 10 years backwards, because otherwise you'd always be out of time. So, it would start at that point for you as the person who'd want to make a claim. You'd have roughly three years from then, but, actually, the cover for the GP would go back and cover the whole of their practice when they're actually paid an indemnity fee. So, as long as they're covered in the past, then they're covered by the new scheme, and it is the case that there are times when it can be a long time between the advice or the practice itself and the claim arising. So, that part isn't time limited. The time limits apply to claimants in the legal system.

10:25

Thanks, Chair. The British Medical Association Cymru Wales has said that their priority is ensuring that the scheme is not less favourable than the equivalent scheme in England. Can you just give us more detail on the discussions that have taken place between your Government and the UK Government to make sure that both schemes are properly aligned?

Yes. There's been regular conversation between officials about this, as I outlined earlier, and that is to make sure that we have a comparable set of cover provided in the regulations. And, to be fair, that hasn't been a point of contention between the two Governments, so there've been constructive conversations between officials. If you want, Frances can give you more detail, but that, if you like, is the answer.

I have a fortnightly call with my colleague in the department just keeping up to date on what's happening with the whole process, and our teams have been actively engaged, and we have, as well, similar legal and financial advisers et cetera. So, we work very closely with our colleagues in the UK.

Okay, thank you. You didn't conduct a general consultation with the public on this Bill, you just consulted with the relevant parts of the health service, because you've been arguing that it's not something that impacts directly on the public. Can you just clarify exactly which stakeholders have been consulted?

We have consulted with GPs, with the NHS, with health boards, with the NHS Wales Shared Services Partnership, Legal and Risk Services, who operate the secondary care system but also who will be taking this on, as well as the BMA, Royal College of General Practitioners and the medical defence organisations themselves.

Okay, thank you. And just finally from me, how will you measure the effectiveness of this scheme and its impact on the sustainability of general medical services going forward?

Well, really, if it provides people with the assurance that they will want to remain in general practice, so that this isn't an issue that they then look at and think, 'Well, that's a reason why I'm leaving.' And the challenge in the question, really, is if the scheme works as it should do, then you shouldn't notice the difference. It's about taking away one of the anxieties and the fears that exist, but, actually, there are different challenges on general practice. We could get this right and have other challenges that may affect different choices being made. For example, when we get back to the next GP training figures, that, if you like, doesn't affect people in practice today, and yet, of course it does, because there's something about, 'Well, if I stay in, will there by more GPs coming into the system in the future?' So, it does have an impact on people in the system. So, it's one of the factors that we think we can resolve in a very discreet, but hopefully effective way.

I just want to ask on two slightly separate areas. One is more for—perhaps you can give us some advice. But your response to Jayne about the—. I totally understand that when somebody has initiated a claim, they've got three years to complete it, but I read in the evidence that that included whether or not they had—if they lost capacity during that three years, it would still be three years. Is that common, because I understand if somebody has lost permanent capacity, then, obviously, you need to have an advocate who steps forward for them? But there must be occasions when somebody would lose capacity temporarily. Is it just a law that you only have the three years, or do you normally extend it after three years if it's a temporary loss of capacity?

That's nothing to do with us. It's not to do with the Bill, it's the way the law works about whether you can and can't bring a claim.

I don't want to get into applications made to extend time and all. That's a—[Inaudible.]—left behind.

Yes, it was just when I read the evidence, I was just a bit surprised by that, and I hadn't realised, so I just wanted to know if it was a law thing, or—.

I've just read the evidence from MDDUS—sorry, it came in yesterday, and yesterday was a bit of a busy day. For the avoidance of doubt, given that we've spoken about the MDU and the MPS, I just wanted to say that, actually, my reading of their evidence isn't that they're as happy as MPS are. I'll do a quote:

'Our position, as has been made clear on many occasions, remains that the ELS is a poor piece of public policy'.

And they also go on to say that they've been

'dismayed that there was no consultation on the model to be adopted in either England or Wales'

—so, this is in both countries—

'nor was any public procurement process undertaken.'

And they explain in quite strong detail about the fact that they don't believe this would have happened if, perhaps, the Lord Chancellor had actually changed the rules on medical tort. Could you just explain to us how much involvement you had? Did you try and push for that change at a more global level, and do you think that their concerns about the lack of discussion and their concerns about the lack of public involvement, stakeholder involvement—if, instead of truncating this Bill as fast as you have in order to get it done and dusted by, basically, I think it's Christmas, isn't it, that we'd given it more time, we could have come up with a much better solution? Because they're very strong on this, and I'll be asking that question later too.

10:30

Look, to be fair, there's some honesty in their evidence about their view that other changes could and should have been made, and they're very direct about that. They're very direct about the fact they would much rather not be here, and that applies globally across the UK to existing liability schemes, not just to specific points about Wales. And there's a straightforward disagreement about that. They're perfectly entitled to maintain that position; we live in a democracy, after all, you're allowed to have a different view. But when it comes to their view on the Bill, of course, that's contained in the last two paragraphs, where they say:

'Turning to the Bill itself, MDDUS does not wish to comment on any specific provisions. We think that it makes sense for the Welsh Government and Assembly to have the same decision-making scope on questions of medical negligence as is open to the UK Government and Parliament.'

So, that's their view on the Bill. The rest of it is their view on wider policy questions that aren't about the Bill, and, look, I have—

And this is a policy committee, so my question to you is: did Welsh Government lobby the Chancellor to make that change?

And I was coming to that, because when the Lord Chancellor made decisions about the discount rate, it wasn't something that any health department in the UK was clear-sighted on or had taken into account, but it had really big consequences. Then the second decision on the discount rate made it worse again, in terms of making really clear that it's increasing costs in an area for healthcare professionals. So, that was a big problem. Now, if you had Matt Hancock or Jeremy Hunt here, then they would not tell you that they were sighted and that they were able to influence the decision, if they were being honest, particularly Jeremy Hunt, who is now no longer in the Government—he would probably say he was pretty annoyed because it gave him a big headache, as it did to every health Minister at the time, of what you practically do. That's why we've got this policy response with the legislation, with the future liabilities scheme we have already introduced and the existing liabilities scheme that we'll introduce as well. As I said at the start, it really upset and threw up in the air an already difficult indemnity insurance market for medical professionals.

The other stuff about changing the law—well, look, there are really difficult questions there about access to justice and the bids to say there should be more fixed costs—well, I think that's an issue that if you wanted to get into, bearing in mind that that's not devolved, but if you chose, as a policy committee, to look at that, I think you'd need to look at access to justice on more than one side, and not simply about the business of operating an indemnity insurance operator, whether they're a mutual, or whether they're, if you like, an alternative form of insurance provider. But that's getting well away from the Bill. But I understand why they've taken the opportunity to give their view on those broader questions. But, as I say, their view on the Bill is contained within paragraph 17.

Yes, and I've read that, and I take that point entirely, but it is a very strong piece of evidence from them. Last question: the three organisations who represent all the doctors and all the practices throughout the UK, now all the individual Governments—all the devolved Governments are picking up and taking this forward, whether it's the current or future liability—will they still have—? I'm going to ask this of them as well, but I'm trying to think of the right way of saying it. But, essentially, does this take an enormous slice out of what their business is all about, and is that their issue?

10:35

Well, of course it affects their business, because we're intervening in what has previously been dealt with in a market with three significant players across the UK. But the choice has been made that we think that, otherwise, that market will fail in what it's supposed to provide, in terms of an affordable product that provides the right sort of cover and means that general practitioners and others can carry on providing their service. So, yes, it's a significant intervention, and it's one that's been taken by all those Governments with Ministers in the UK who want to take it forward; I don't think I'm in a position to comment on the position in Northern Ireland.

Okay, just a final point before we wrap up. Can we just have confirmation, under the ELS, the other healthcare professionals that are covered—we've had a couple of answers, but can you confirm that occupational therapists, physios and podiatrists are also covered?

They'd be covered by the practice, if they're employed within—

Whereas, of course, if they're employed by the health board, they're covered anyway.

They're covered anyway, yes, exactly.

Grêt, diolch yn fawr. Dyna ddiwedd y sesiwn, felly. Yn ôl ein harfer, fe fyddwch chi'n derbyn trawsgrifiad o'r trafodaethau yma er mwyn ichi allu cadarnhau eu bod nhw'n ffeithiol gywir. Ond dyna ddiwedd y sesiwn. Diolch yn fawr iawn i chi.

Fe allaf i gyhoeddi i fy nghyd-Aelodau y cawn ni doriad am bum munud nawr—egwyl tan i'r tystion nesaf gyrraedd am 10.45 a.m. Diolch yn fawr.

Great, thank you. That's the end of the session, therefore. You will receive a transcript of today's deliberations for you to check for factual accuracy. That's the end of the session. Thank you very much.

To my fellow Members, we'll take a break now for five minutes, while we await the next witnesses at about 10.45 a.m.

Gohiriwyd y cyfarfod rhwng 10:36 a 10:46.

The meeting adjourned between 10:36 and 10:46.

10:45
4. Bil y Gwasanaeth Iechyd Gwladol (Indemniadau) (Cymru): Sesiwn dystiolaeth gyda'r Sefydliadau Amddiffyn Meddygol
4. National Health Service (Indemnities) (Wales) Bill: Evidence session with the Medical Defence Organisations

Croeso nôl i bawb i'r sesiwn ddiweddaraf o'r Pwyllgor Iechyd, Gofal Cymdeithasol a Chwaraeon yma yn y Senedd. Rydym ni wedi cyrraedd eitem 4 ar yr agenda erbyn rŵan a pharhad o'n craffu ar Fil y Gwasanaeth Iechyd Gwladol (Indemniadau) (Cymru). Dyma sesiwn dystiolaeth gyda'r sefydliadau amddiffyn meddygol. Ac fel y bydd Aelodau'n gwybod, dyma'r ail sesiwn dystiolaeth ar y Bil, a'r olaf, wrth gwrs, achos bod amser yn brin. Mae'r Llywodraeth yn ein rhoi ni o dan gryn bwysau fel pwyllgor i graffu o fewn rhai dyddiau. 

Cyn inni ddechrau, mae yna ofyniad arnaf i yn bersonol i ddatgan buddiant personol, achos dwi'n dal i fod yn feddyg teulu ac wedi talu indemniad meddygol yn y gorffennol. Ac er nad oes budd uniongyrchol gen i yn y mater penodol o dan sylw, dwi'n parhau i fod yn aelod o Undeb Amddiffyn Meddygol a Deintyddol yr Alban ond, wrth gwrs, gan fod yr indemniad hwn ar hyn o bryd yn cael ei ddatrys ar lefel y practis bellach ac nid ar lefel bersonol, does yna ddim buddiant uniongyrchol i fi. Buddiant anuniongyrchol yw e. Mae'n bwysig i roi hwnna ar y record.

Felly, dwi'n falch iawn i groesawu i'r bwrdd Dr Matthew Lee, cyfarwyddwr gwasanaethau proffesiynol, yr Undeb Amddiffyn Meddygol; Mary-Lou Nesbitt, pennaeth cysylltiadau llywodraethol ac allanol, yr Undeb Amddiffyn Meddygol; Emma Parfitt, cyfarwyddwr gwasanaethau cynghori a chyfreithiol, Undeb Amddiffyn Meddygol a Deintyddol yr Alban; a David Sturgeon, cyfarwyddwr datblygu, Undeb Amddiffyn Meddygol a Deintyddol yr Alban. Croeso i'r pedwar ohonoch chi. Diolch yn fawr iawn ichi am eich tystiolaeth ysgrifenedig rydyn ni wedi ei derbyn ymlaen llaw. Yn ôl ein harfer, mae gennym ni ryw awr fach. Mae digon o bethau i fynd ar eu holau nhw, ac mae yna resi o gwestiynau. Felly, cwestiynau cryno ac, efallai, atebion cryno. Cawn ni weld. I ddechrau, David Rees. 

Welcome back, everyone, to this latest session of the Health, Social Care and Sport Committee here at the Senedd. We've reached item 4 on the agenda and a continuation of our scrutiny of the National Health Service (Indemnities) (Wales) Bill. This is an evidence session with the medical defence organisations. And as Members will know, this is the second evidence session on the Bill and the final one, of course, because time is short. The Government is putting us under some pressure as a committee to scrutinise within a few days. 

Before we begin, there is a requirement on me personally to declare a personal interest, because I am still a GP and I have paid medical indemnity in the past. And although I have no direct interest in the specific item under consideration, I am still a member of the Medical and Dental Defence Union of Scotland, but because the indemnity is now resolved on the practice level and not on a personal level, there is no direct benefit for me. It is an indirect benefit, rather. But it is important to put that on the record. 

Therefore, I am very pleased to welcome to the table Dr Matthew Lee, professional services director of the Medical Defence Union; Mary-Lou Nesbitt, head of governmental and external relations, MDU; Emma Parfitt, director of advisory and legal services, Medical and Dental Defence Union of Scotland; and David Sturgeon, the director of development, Medical and Dental Defence Union of Scotland. Welcome to all four of you. Thank you very much for your written evidence, which has been submitted beforehand. And, as is our custom, we have about an hour now, and there are plenty of things to discuss and we have plenty of questions to ask. So, I ask for brief questions and answers. To begin with, David Rees. 

Diolch, Gadeirydd. Good morning. I suppose we're looking very much at the situation as to the sustainability of our GP practices. We're facing challenges ahead of us in the years to come. I know of many GPs who have gone part-time or who have actually decided to leave because of the indemnity costs placed upon them and therefore they've decided no longer to practice. So, the costs of everything else and the re-registration were basically equal to what they were earning. So, do you believe that this state-backed scheme will actually have a greater impact on sustainability for GP services in Wales?

Shall I start? It's a good point and it's one that's well made, because we had been seeing for a number of years GPs retiring earlier in their practice lives, GPs avoiding high-risk areas of practice for which indemnity costs were higher, such as out-of-hours care. And, actually, since we've seen indemnity costs come down, since these schemes have been both announced and introduced, we've seen a reduced number of our GP members retiring. In fact, in Wales, actually, the out-of-hours indemnity was already taken care of by the state about four or five years ago, I think, so it was less of an issue for the out-of-hours in Wales, but certainly in England, it was affecting the number of GPs who were prepared to offer out of hours, particularly over the winter, where the Government were having to financially incentivise GPs to do out of hours by providing free indemnity in the winter months.

So, I think these the schemes will help, but I suppose the root cause of the indemnity costs was the spiralling cost of claims, and we've been saying for many years that unless something is done to address the cost of claims, then it was an inevitability that it was going to become unaffordable for GPs. And it's a shame, in a sense, that it's taken so long, and we've ended up with this outcome that the state has had to take on that unaffordable level of liabilities, rather than there having been tort reform in the past that brought those costs down. If you look at other countries—you can look at the Republic of Ireland, you can look at Australia, the American states—tort reform has brought down the cost of litigation and actually enabled doctors to continue both their practice and source their own indemnity. But in England and Wales, that hasn't been put in place and this, ultimately, was we thought an inevitable consequence.

I suppose it's worth saying from the end-user's perspective, we've supported this. We felt it was becoming inevitable that the state was going to have to take responsibility for these costs, because if tort reform was not put in, it was no longer a sustainable position. So, we are supportive of this move towards state indemnity for GPs. 

10:50

I think from MDDUS's perspective, I would agree with a lot of what Matthew has just said, but I think there are other factors as well that are impacting on both recruitment and retention. I think a lot of that could be around the workload of individual GPs, increasing lists associated with individual GPs, a shift of work out of hospital into the primary care setting. That's all very positive, but without increasing the resource to deliver that then, obviously, it puts a strain on those that are trying to provide that service. And there are other factors, such as the pension pot limits on GPs. It's a very good NHS pension scheme, but there are thresholds now that a lot of GPs in their late 40s, early 50s are coming up against, not only the lifetime allowance, but the annual allowance itself can be very restrictive in terms of what work you're prepared to do with an absolute maximum of £40,000, but in some cases a limit of up to £10,000-worth of benefits being accrued within a year, which then opens you up to a tax liability. 

Yes. I'm not saying it isn't important that it's being done, but there are other things that you should consider as well. 

Good morning. Thank you very much for your evidence papers. When reading them, what became quite apparent to me was that there was a slight difference of opinion between your views on how successfully your dialogue and negotiations with the Welsh Government are going, compared to the Welsh Government's view on how successfully they think that dialogue is going, particularly from the Medical Defence Union. I wonder if you could perhaps just give us a little bit more detail about where you are actually—. I'm not asking you to breach any confidential information, but you say quite strongly in your evidence that,

'the Welsh Government has not entered substantive discussions with the MDU regarding the level of asset transfer that may be required.'

Perhaps you could just expand on that a bit so we know where we really are.

I said a second ago that we supported the introduction of a scheme. We supported the introduction of a scheme for future and past liabilities. All the three medical defence organisations are mutuals that are owned by their members and that are funded purely by their members, so there is no profit element, there is no other source of funding for those organisations. So, it is key that any scheme that comes in does deal both with future and the escalating costs of the past. GP claims are inflating by a factor of around about eight to 10 per cent a year, which means the cost of those claims is doubling about every seven years.

I saw a case last week, a Welsh GP case. The care was provided 22 years ago and it was notified several months ago, and that's costing multimillions of pounds. The care was provided at a time when the subscriptions for the MDU were about a quarter of what they were before these schemes were announced. So, it is absolutely fundamental that an existing liability scheme is put in place, and we're very keen to have that dialogue with the Welsh Government.

I heard what Vaughan Gething said in the earlier evidence session that they are keen as well. We felt that the schemes should come in together and, indeed, that would have been April this year. There was a year's run-up since the announcement to the launch of the future liabilities scheme, in which we could have been putting in place this enabling legislation and agreeing the terms of an existing liabilities scheme. We've become increasingly concerned since the launch of the future liabilities scheme in April that we're not making enough progress towards a future scheme.

I would say that, in the last week or two, I'm hoping that dialogue is starting to move that forward slightly, but, realistically, we are disappointed at the level of progress we've made towards an existing liabilities scheme that includes MDU members, which will be around about 40 to 43 per cent of Welsh GPs included within those members.

10:55

I'm very concerned to hear that, because, obviously, we're under pressure to truncate this Bill and pass it quite quickly. And I was interested to read your concerns about the financial gap you say that's now arisen, because members have stopped paying into subscriptions. We're not actuaries, any of us here on the committee—at least, I don't think we are—so, I don't want to get into a huge amount of detail about how that works out, but can you just give us an overview about the hole that could be left within your organisations because your members might have stopped, or have stopped paying in? And also can you just confirm, when you say that the Welsh Government are saying they want to reach a deal, you guys are saying you want to reach a deal, but there's no substantive negotiations, I mean, is there some kind of dialogue going, or is it just that you've been given a deal and told 'This is it' and you've got to just accept it, or is there a proper negotiation under way?

I think we would struggle to characterise the dialogue to date as a proper negotiation. There has been dialogue, and there's quite a long way to go from our perspective. In terms of funding the past, the difficulty is nobody knows the rate at which GP claims will continue to inflate, and the past liabilities inflate at the same rate as those future liabilities. So, there will be claims appearing 20 years from now when the care was provided, say, January of this year, before the future liabilities scheme took effect. And those claims could be enormous. With the rate the claims have been inflating to date, they're likely to continue inflating. 

As things stand, with a future liabilities scheme in place, GP subscriptions have very significantly reduced. There isn't scope for any organisation really to start collecting significant amounts of extra money from GPs. We saw, two years ago, a change in the personal injury discount rate. That affected the liabilities of our members by several hundred million pounds. That single change overnight, we suddenly had the liabilities inflating, or the estimates of future liabilities. If we see similar changes to that in the future, if we don't see tort reform, if we see continued claims inflation at 10 per cent, then I'm not sure whether any organisation could say, 'Actually, hand on heart, we're going to have funds 20 years down the line that will be there to protect our members', and more importantly, to protect patients at the end of the day. So, if one is to reach the implementation of a scheme that properly covers all liabilities, properly looks after GPs, and protects patients indefinitely into the future, we need an ELS scheme, for all three organisations, to be in place. 

About 15. So, the Medical Protection Society obviously pick up the balance. So, do you think the Government's £100 million is on the mark of what they think it will cost them, or is it way off beam given what you've just said?

It's difficult to answer that without going into some of the details of the confidential dialogue that's gone on to date. 

Yes. Everybody provides their own data in relation to their own reserving calculations, and, therefore, I think, it's then an estimate that's made up by the actuaries as to quite where the position will be in future terms. I think what we have to make clear, however, is that the MDDUS deals with its funds slightly differently to the MDU. So, I think we just have to clarify, whilst I agree with the personal injury discount rate comments, which you've already noted, thank you, we are in a position whereby we collect in the past for what we think we'll need in the future. So, we are not reliant on what's coming in next year to pay for claims in the past. So, the way that our own actuaries and our own systems work is that we have been collecting sufficiently since 1902, or whenever we were first established, in order to pay out for future claims. And that is why we consider that we felt that an ELS position wasn't necessarily the right way forward because we think an integrated service for GPs is very important, whereby they have the General Medical Council and the other cover in addition, so that we can perhaps advise doctors early on, get rid of claims before they get to that stage, with appropriate complaints handling, and then have an integrated service. So, that's the basis of where we were coming from, effectively. 

I know that we do want to talk about your views on what should have been happening and the changes to tort, but I'm going to be treading on somebody else's toes.

11:00

Well, it's just here. Your evidence this morning I thought was very clear. Perhaps you could just explain a little bit more to the committee about what alternatives, if we'd had more time, in England and Wales—. And I understand Welsh Government's under huge pressure, because they've got to tie in with England, who are moving ahead at pace, and I guess the Scots Government are going to have to do that, because we don't want to have—. No?

Well, certainly, our engagement with the Scottish Government at the moment is that they are not proceeding with a state-backed indemnity scheme. It's not to say they aren't investigating it, but there are no plans at the moment. And, certainly, in terms of their negotiation with the British Medical Association through the General Practitioners Committee, it's that they're talking about direct reimbursement of indemnity costs, as opposed to entering into a state-backed indemnity scheme. Obviously, the direct reimbursement wouldn't be different from arrangements they've previously had in place for rent and rates, the out-of-hours scheme in England, to reimburse MDOs directly, et cetera. So, there are different solutions on how you could have addressed this. I think our concern, on the back of suggestions that we should do tort reform, is actually what we're doing at the moment—Matthew's spoken about the increasing costs related to clinical neg—is that we're just moving the deckchair. It's good for GPs personally that they don't now have the liability, because there's a mismatch between what they're being reimbursed as a global sum and the fees they were paying for indemnity. But, actually, the liabilities, and those increasing liabilities, are just shifting to Government, and there's nothing that I can see in the actions that are being taken that are addressing reducing the spiralling cost of the med neg claims that are coming through.

That's a very interesting comment. Of course, it's really difficult, isn't it, because we're here to talk about this particular Bill, and, as the Minister made very clear, the actual situation vis-à-vis the Bill itself, you don't have a particularly strong issue with. But your issue is much more about, actually, we shouldn't be in this position, full stop—that England, Wales, Scotland, we should actually be looking at and discussing alternative ways of driving down these kinds of insurance costs.

And MDU's position, a lot of your issue is about the Bill itself, or not about the Bill itself, but about your lack of discussions or your lack of traction with the Government in trying to reach a deal.

I think there were two points today. One, the Bill itself is a piece of enabling legislation, which will be necessary to put in place schemes that we think are necessary. We do think this should have happened quite a long time ago—that's one point we wanted to make. Furthermore, in terms of those schemes, it is fundamental that they do get put in place, and, in terms of dialogue, we were keen that people didn't walk away from this thinking we've sorted the problem, because actually we are feeling we're quite a long way away from a solution that we could work with. And, when I say 'we could work with', we have to find something that's fair for our members—not just our GP members, not just our Welsh GP members, but we have 200,000 healthcare professionals in membership, it's a mutual, they all contribute. It needs to be a solution that's value for money for the public, but is fair to MDU members. And that's what we're trying to achieve.

So, if this committee is trying to pick its way forward, then it may be—and I don't want to put words into your mouth, but are we saying that, in terms of the technical aspects of the Bill itself, there's no real issue; there could be an enormous question mark over whether, in the explanatory memorandum, the £100 million being invested by the Government, or set aside by the Government, may or may not be enough going forward; there are still issues between the Government and the organisations—each is at a different stage of negotiation about the asset transfer and what might happen—but that all of this is set against a background that is actually inefficient and incomplete and has not had proper stakeholder investment or discussion, and has not had a wider discussion throughout the United Kingdom about where we go in the future? Because I know, from a GP's point of view, it's like, 'Oh, phew, hurrah', because it's taken a massive burden off their shoulders. And, of course, one of the consequences we are hoping is that, by taking that burden off their shoulders, we may be able to persuade particularly recently retired or part-time GPs to be able to come back into service in a high-pressurised area, where we haven't got enough bodies. So, for us, there are lots of wins. But I just want to understand—when we make our report and our observations on this, your concern is really about the backdrop to all of this.

11:05

I think it's a fair characterisation of the position. I think if one looks at whether or not this is going to bring doctors back into practice, it might bring a few back into practice; it might stop a few retiring. But it may be a very expensive way of doing that.

We, and I think the other defence organisations, have traditionally been very active in defending our members, our members' reputations, our members' professional practices, when they're facing a claim. We are successfully defending about 80 per cent of claims. I don't know the position, in terms of risk services in Wales, how many they're defending, but I know NHS Resolution in England—it's closer to 45 per cent to 50 per cent of claims that are being successfully defended. So, you're not necessarily going to move to a more cost-effective system. 

Furthermore, when individuals are suing not their friendly doctor, but an organisation, are they less likely to be inhibited in bringing claims? We may see more claims in the future brought against primary care bodies as opposed to—. It's very difficult to sue an individual doctor who has been trying to do their best to provide care to you. It's much less difficult to bring a claim, say, against a health board. So, I think we might see more claims. It's difficult to say whether the level of expertise in claims handling will carry through, whether the success rates will continue to be as good as they've been.

What I think is another concern that has been raised by colleagues is that, in terms of the individual GP, I'm not convinced that they will be as well supported. When we look at hospital doctors receiving support from the NHS with claims brought against NHS hospitals, the doctors become witnesses. GPs themselves are independent contractors—it's their whole life, providing care to their patients. When a patient sues them, personally and professionally it is a massive life event. It's not just writing a witness statement for a trust; it's all-encompassing. And we will speak to them 24 hours on the phone, we will sit down with them at their practice, we'll have an individual lawyer instructed for that doctor and we will hold their hand all the way through to winning that claim, if we can win the claim—if it's not demonstrably negligent treatment that's been provided. I'm not sure whether the holistic care that's provided to the GPs is going to be of the same level when it's provided by a Government body as it would be by an organisation that purely exists to look after its doctor members. 

That's a very interesting observation and we also received written evidence from the Royal College of General Practitioners and the BMA, which are both very supportive of this legislation, and neither of them raised that as an issue at all, but I do take on board your comments there. I think I'm done for the moment, thank you.

Yes, before I come on to the question I was intended to ask, obviously this proposed legislation and this change of policy will have very large effects on you, potentially, as organisations, and, without wishing to be cynical, clearly, your mutual organisations—you're owned by your members, but you are still organisations and organisations have staff and premises and—. And is some of your view about whether or not this is the right way to proceed—? And I'm taking on board Angela's point that the technical legislation is one thing, the overall policy, but we are allowed to—as a committee, we can make comments to the Government on the wider issue of the overall policy. To what extent is your concern about this approach to do with its potential effect on your organisations? Presumably, it will mean practical things like redundancies for staff if you're not taking the cases anymore. I suppose if I was to be really cynical, I might say, 'Well, turkeys are unlikely to support the reintroduction of Christmas'.

I can say categorically that we are supporting the introduction of the state scheme. I think we feel that it would be better if we could continue handling the cases for our members who are involved in the state scheme, because I think it would be better for the members and I think we would get potentially better value for money on those cases.

The other point is that we are a membership organisation. GPs are not leaving the organisation. We open roughly four case files per GP for non-claims matters than we do for claims matters. So, the claim—

Could you tell me a bit more about what those non-claims matters might be? Presumably there are other things, like cases before the General Medical Council, that this scheme wouldn't cover. Would you—

Absolutely. We have as many members of staff working on those medico-legal-type cases as we do on the claims cases. The money runs through the claims, and it's fair to say we had significant concerns about the spiralling cost of GP claims. So, a level of our support is that actually, of course, there will be less subscription income coming in, but there will be less claims money ultimately going out of the door. So, it's a change in dynamic, a change in business model.

The GPs are staying; we look after in the region of 13,000 of our members each year who are facing things like the General Medical Council, disciplinary and performers list actions, coroners' inquests, lots of complaints—complaints that progress through to the ombudsman. We're dealing with around about 100 to 150 criminal investigations each year brought against our members, which can be anything from assault and battery through to sexual allegations through to manslaughter cases, and we have a specialist team that looks after our members there. So, this isn't protectionism; this is actually a concern that these arrangements could actually be done in a way that was better for our members, and potentially better value for money.

11:10

I would echo that. We all work in a very, very similar way, and we also see a far greater number of what we call too non-claims cases coming through the door than we do for claims. You'll have been aware that we have done a deal with the English Government for the ELS there. We felt that it was in our members' interest to do that. And, of course, by the same token, you take all those liabilities off your books. So, from the same—. And we certainly have no intention of making any redundancies. In fact, the work is coming in from other areas at a far greater speed.

That's helpful, thank you. A question to the Medical Defence Union: forgive me if I've misunderstood, but is it the case that there is some ongoing legal action in relation to the approach being taken by the UK Government? Can you tell us a little bit about what that is and what's brought that on, bearing in mind the points we've already made about not wanting to touch on anything that's commercially confidential. But, presumably, if it's legal action, it's in the public domain.

It's published as well. So, this will be a short answer. There is legal action that is ongoing. It was initiated within the timeframe, within three months of the future liabilities scheme being put in place, and, to give a very broad overview, looks at issues of fairness and whether or not the negotiations to date are likely to achieve the purposes that they were set out to achieve. It's a lot more complex than that, but I can't really go into it any more.

I think—. Forgive me—if I may just add something, the point about it is, when you're looking at litigation, the courts would much prefer you to settle matters out of court, and that's absolutely our preferred option. We only resorted to litigation because we felt we needed to do so because we weren't getting anywhere in terms of negotiation. So, we would much prefer to settle this out of court.

Is that legal action just against the UK Government, acting as the Government for England, or is the Welsh Government implicated in that legal action as well?

Thank you, Chair. I think my question around the situation in other parts of the UK has been answered around what you said about Scotland, but if there is anything else you'd like to add—. But the other—

Shall I just say that I think the situation in Northern Ireland has not progressed? Partly because there's no Stormont Government at the moment. I suspect there might be some developments.

Yes, that's—. Thank you for that. Just quickly, then, do you think there's been a sufficient joined-up approach between Wales and England? Do you have a view?

The matters we're discussing with both Governments are confidential, so in some respects it's very difficult to have a joined-up approach when in fact we're discussing confidential information in respect of our Welsh members and in respect of our members in England.

I think it's pretty fair to say that they are talking to each other. We're fully aware that they are. We're perhaps a little further down the line in negotiations with Wales and we are aware that they're fully briefed about what was happening in England and what is happening.

Right. Before I finish, can I just expand the debate to be a little bit more philosophical, as it were? You've indicated that you'd prefer not to be here with this particular sort of scheme, so, if people were starting again but with the same trajectory of costs and liabilities and stuff, which is obviously unsustainable to the future, how would you deal with the situation then? Other countries obviously have a no fault compensation situation. Are we talking of things like that? The floor is yours for the next four minutes.

No fault is one option and it is used in Norway and New Zealand and a few other countries, but it wouldn't have been our preferred solution. I think it does generate an awful lot of small actions when you don't have to demonstrate fault, so it becomes a very intensive administrative system.

And the big faults, though, does it help that—I mean in keeping costs down?

Costs are not the biggest issue in the claims that we're seeing. The big driver of the inflation in GP claims is the very highest value cases and it's the compensation that's being paid. As things stand, patients are compensated on the basis that they will source private care—healthcare and social care—for the rest of their lives. An estimate is made of the length of their lives, and that is of course spiralled up by factors, which is why the discount rate drop makes a big difference to the size of lump sum payments that are paid at the outset. A lot of those patients will have a lot of that care on the NHS. They may receive social care from the state and it's anachronistic that that system is still in place. It was a system that was put in place in 1948, at the birth of the NHS, because people were saying, 'Well, if the NHS messes things up, we've got to be able to go back and get our private care as we used to', and that system's never really changed. So, we think that should change.

We'd like to see a system whereby patients who are damaged through negligence are able to source a defined package of care—appropriate care—be that from an NHS body, be that from a Government-funded social care provider, with additional requirements or funded potentially through the tort system—not just bringing down the cost of the individual claims, but also putting a whole load of money back into the NHS that otherwise is flowing out of the NHS, and a lot of it never goes back into healthcare or social care at all.

We'd also like to see a limit on the time in which people can bring claims. I mentioned earlier a GP claim that's being brought—first notification of it was 22 years after the event, and that's a Welsh GP claim from this year. And those cases are huge, and we really need to know about those earlier. And these unlimited limitation periods on the cases are not helpful at all. We'd also like to see the enormous loss of earnings claims, because a theoretical loss of earnings claim can be added to any of these cases—. We'd like to see those capped at a sensible level that reflects the national average earnings, possibly a multiple of that, but not where we've seen people who've claimed that they've lost the ability to build a factory compensated for the whole business loss that's associated with that.

So, a number of fundamental changes, which they've put in place in other countries, could be put in place in Wales and England and could actually bring down the cost of those claims and put a whole load of more money back into the NHS that, at the moment, is flowing out of it.

11:15

We totally agree with that, actually. It's a multifactorial approach that needs to be taken. All those things that Matthew's already mentioned you can address, in addition to things such as the cost of the number of experts used—you can see that both sides sometimes have 12 to 15 experts each in a case. They all talk to each other and it's a huge spiralling cost. There are things that can be done.

Yes, actually, it was just for information. So, when a claim is judged, is there any tariff at all, for example, on, say, the compensation element of, 'Oh, God, we're so sorry this has happened to you', as opposed to the bit where you say, 'And this is going to be the cost' or 'You will need to spend—'? So, I guess it's all chopped up into different bits.

There are different bits. There are general damages and special damages. The special damages would look at things like the future cost of care. General damages are based on the tariff system. So, if one loses a little finger, it costs something similar to losing a right ear, and there's a whole tariff system. Those are really the statutory levels of compensation, but they don't cover things like loss of earnings and care costs, and it's loss of earnings and care costs that drive up the huge claims in these cases.

Just for clarification again, to actually change that scenario, is that the UK Government, or does the Welsh Government have devolved powers to do so?

I think it would be a UK-wide change. The law in respect of clinical negligence at the moment is pretty much aligned between England and Wales, and my understanding is that any changes would apply to both jurisdictions.

On Scotland—can you talk about the way the Scottish Government are looking to do it? I've just been thinking about it—I would have thought that's more bureaucratic and more costly administration-wise than this scheme, because to do so, they're going to have to reimburse somebody, forms will have to come in, confirmation of payments have to come in, then you send all of that back out. I thought that would be far more bureaucratic than this scheme.

I think there are ways that it could be organised that it wouldn't be bureaucratic. Certainly, we could bill a Government directly, as opposed to going through individuals— that's the list of members that we represent and what their indemnity costs are. So, there are different ways of organising it, which I think could satisfy your concerns.

Yes, it's all done electronically. Everybody has to have a registration. You have to have cover in order to practice, as you'll know. We've done it quite successfully.

So, say the Welsh Government are paying or keeping their moneys and putting them into its own pot, basically, you're simply saying, 'Well, look, the Scottish Government won't be using the money to put into the pot for the liabilities.'

And we then take the risk on that, whether they—. Yes.

And we retain the integrated service that we provide at the moment, which we believe our members appreciate and value. 

And which we think drives down the claims in the first place, because we try and deal with patients right at the very, very beginning with the complaints and the claims side of things. We've done it successfully for the winter indemnity scheme in England, where we were directly reimbursed for people doing out-of-hours work in England.

11:20

It’s probably worth mentioning that the claims environment in Scotland is massively benign when compared to England and Wales. Indemnity costs are a tiny fraction of what they have been in England and Wales. There just aren't as many claims and the claims are not as big. The legal environment has not encouraged claimant law firms to move in and try and progress medical negligence cases. So, the law in Scotland has never encouraged the sort of problems that we’ve seen in England and Wales. Northern Ireland is—

It's a different legal jurisdiction in Scotland and therefore the framework in Scotland in different.

This might be a bit indulgent, so the Chair will shut me up if it is, but could you tell us a bit about what that difference of legal environment is, because we know that there has been a developing claims culture? I don't want to use the phrase 'ambulance chasing', but we see those adverts on telly—that sort of stuff—in England and Wales. You're telling us that that hasn't happened in Scotland, and just briefly, could you give us some idea about what the differences in the legal environment are? I know this is outside the scope of this Bill, but if we were to make some longer term recommendations about what the policy environment ought to be, we might want to make some comments to the Welsh Government about if there are things, either that they could do themselves, or that they could talk to the UK Government about doing on an England and Wales basis that might help to change some of that culture.

Shall I start from a medial perspective, and Emma, the lawyer who works for a Scottish organisation, can possibly then pick up from a Scottish perspective? What was driving the frequency of claims in England was a system whereby patients were able to source after-the-event insurance before a case, which could, in itself, insure against the cost of that after-the-event insurance. So, lawyers would team up with insurance companies and the costs would all be covered there.

There were success fees. So, lawyers could see up to a 100 per cent success fee on their costs if they were successful, and those costs, in themselves, were sometimes much higher than we were paying in terms of the defence costs. So, there was an environment in English law—which was put in place for all the right purposes to try and provide access to justice—which actually enabled those who were shrewdly commercial to generate an awful lot of costs and have an incentive to find cases to bring.

Now, some of that was addressed through the Jackson reforms—the reforms that Lord Justice Jackson put in or recommended a number of years ago. But it hasn't entirely changed the position. The interest was being gained, and people are in the field and make a very good living out of dealing with this type of legal work. It's never grown to that extent in Scotland. I think there's something like five claimant law firms in the whole of the country that deal with medical negligence cases—it just hasn't taken off in the same way. Emma, do you want to come in?

That's essentially it in a nutshell, but the rules are very different—they don't have the civil procedure rules up there. If you take a case to trial and you are successful in defending it, you are still able to get your costs back. There is an incentive in that—people then stop and think, 'Should we be taking this all the way to trial? Is this really a valid case?' All those sorts of rules have all built into the culture that is very different. And I should also say, it's a culture across the whole of the insurance market, not just clinical negligence. So, road traffic and all those other kind of areas as well.

Okay. Just one final point from me. In terms of all three medical defence organisations are signed up or will be signed up to this Bill, or what happen if one of you does not sign up?

In terms of if one of us doesn’t put an existing liability scheme in place ultimately?

To be fair, that's different to the Bill itself—it's an enabling Act in order that if somebody does sign up, then you have the ability to do so. Whether people do or not, the cases will just be run according to that defence organisation's funds.

I think it’s fair to say, assuming the Bill goes through, all organisations are keen for an ELS to be put in place for all the doctors—England and Wales.

Ocê, pawb yn hapus? Unrhyw gwestiynau eraill? Na. Da iawn. Diolch yn fawr iawn i chi, y pedwar ohonoch chi, am eich presenoldeb. Diolch hefyd am y dystiolaeth ysgrifenedig ymlaen llaw, a hefyd am ateb y cwestiynau mewn ffordd mor raenus ac aeddfed. Mi fyddwch chi'n derbyn trawsgrifiad o'r trafodaethau yma er mwyn i chi allu eu gwirio nhw eu bod nhw'n ffeithiol gywir, ond gyda chymaint â hynny o ragymadrodd, diolch yn fawr iawn ichi.

Okay, everyone content? Any other questions? I see there are none. Very good. Thank you very much, all four of you, for your attendance. And also thank you for the written evidence you submitted beforehand, and also for answering the questions in such an excellent manner. You will receive a transcript of these proceedings in order to check for factual accuracy, but having said those few words, thank you very much.

5. Papurau i’w nodi
5. Paper(s) to note

I fy nghyd-Aelodau, rydyn ni'n symud ymlaen at eitem 5 a phapurau i'w nodi. Mi fyddwch chi wedi eu darllen nhw ymlaen llaw: llythyr gan Vaughan Gething, y Gweinidog Iechyd a Gwasanaethau Cymdeithasol, ynghylch 'Pwysau Iach: Cymru Iach'. Mi gawsom ni'r drafodaeth yn y Siambr ddoe, mi fyddwch chi'n cofio. Llythyr arall gan Gadeirydd y Pwyllgor Plant, Pobl Ifanc ac Addysg am hawliau plant yng Nghymru. Pawb yn hapus i nodi'r rheina? Iawn.

To my fellow Members, therefore we move on to item 5: papers to note. You will have read them beforehand. We have a letter from Vaughan Gething, the Minister for Health and Social Services, regarding 'Healthy Weight: Healthy Wales'. We did have a discussion on this in the Chamber yesterday, you'll recall. Another letter from the Chair of the Children, Young People and Education Committee on children's rights in Wales. Is everyone content to note those? I see you are.

11:25
6. Cynnig o dan Reol Sefydlog 17.42(vi) i benderfynu gwahardd y cyhoedd o weddill y cyfarfod hwn
6. Motion under Standing Order 17.42 (vi) to resolve to exclude the public from the remainder of this meeting

Cynnig:

bod y pwyllgor yn penderfynu gwahardd y cyhoedd o weddill y cyfarfod yn unol â Rheol Sefydlog 17.42(vi).

Motion:

that the committee resolves to exclude the public from the remainder of the meeting in accordance with Standing Order 17.42(vi).

Cynigiwyd y cynnig.

Motion moved.

Symudwn ymlaen, wedyn, at eitem 6, a chynnig o dan Reol Sefydlog 17.42(vi) i benderfynu gwahardd y cyhoedd o weddill y cyfarfod yma. Ydy pawb yn gytûn? Diolch yn fawr. Mi wnawn ni symud i mewn i sesiwn breifat, felly, a gwahardd y cyhoedd o weddill y cyfarfod hwn. Diolch yn fawr.

We'll move on to item 6, therefore, and the motion under Standing order 17.42(vi) to resolve to exclude the public from the remainder of this meeting. Is everyone content? Thank you very much. Therefore, we'll move into a private session, and exclude the public from the remainder of the meeting. Thank you very much.

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 11:25.

Motion agreed.

The public part of the meeting ended at 11:25.