Commentary on Sections
Section 1 - Power of Welsh Ministers to make regulations in respect of NHS Redress
2.Subsection (1) sets out the general principle that Welsh Ministers may make regulations to provide for NHS Redress arrangements which will enable matters to be settled without having to go to court where a qualifying liability in tort arises. Subsection (2) provides that the arrangements will apply to cases where there is liability in tort arising out of health services provided as part of the National Health Service in Wales, or elsewhere provided that it is commissioned as part of the health service for a person resident in Wales. As set out in subsection (3), the arrangements will apply to liability in tort arising on the part of:
NHS Trusts in Wales;
Local Health Boards;
Special Health Authorities;
Welsh Ministers;
Any body or person providing or arranging for the provision of services in Wales as a result of an arrangement with any of the above bodies. This means that general practitioners; dentists, pharmacists and ophthalmologists providing NHS care or independent hospitals commissioned to provide care as part of the NHS may incur liability.
3.Subsection (4) provides that liabilities in tort must be in respect of personal injury or loss arising out of a breach of duty of care, in connection with the diagnosis of illness or of care and treatment provided. Therefore redress will normally apply in relation to patients receiving NHS care. Subsection (4) specifically provides that this liability will be owed as a result of an act or omission by a healthcare professional, but the Welsh Ministers have the power to specify any other body or person who might also incur liability.
4.Arrangements would not be restricted to claims by patients. So long as claims otherwise fall within the definition in subsection (4), it may cover claims that could be brought following the death of a patient by virtue of the Law Reform (Miscellaneous Provisions) Act 1934 (which provides that where a person has a cause of action and that person dies, the action may be pursued for the benefit of his estate). It may also cover claims brought by the dependents of a deceased patient under the Fatal Accidents Act 1976. This provides that where a person's death is caused by any wrongful act, neglect or default which is such that, had death not occurred, it would have entitled the person injured to maintain an action and recover damages in respect of the injury, liability to an action for damages continues for the benefit of dependents of the person who died, such as a wife, child or civil partner.
5.Subsection (6) provides that people working under a contract of employment will not be personally held liable for negligence, rather it would be their employer who would be liable for their actions.
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