Commentary on Sections Section 10: Scheme members
33.This section provides that a scheme may make provision about membership of the scheme and the functions of members of the scheme. In particular, a scheme may require or permit a specified body or other person to be a member of the scheme (subsection (2)(a)): for example, it is envisaged that a scheme may require NHS trusts, NHS foundation trusts, PCTs and independent providers in England to be members of a scheme. A scheme may also provide that where the scheme applies to cases involving liabilities of a person who is not a member of the scheme, a member of the scheme, eg. the PCT, that is responsible for commissioning hospital services from the non-member will be required to deal with the cases under the scheme (subsection (4)).
33.Subsection (2) lists some particular provisions that might be made by a scheme. A scheme may, for example, provide for scheme members to undertake investigations, notify the patient of proceedings under the scheme, and provide the patient with an explanation, an apology, an offer of remedial care and compensation in line with the scheme authority’s recommendation on the amount of compensation to be offered (subsection (2)(b)). The scheme may also provide for one scheme member to carry out functions on behalf of another in appropriate circumstances (subsection (2)(c)); for example a PCT which contracts with very few providers, if those providers were not themselves members of the scheme, may wish to make arrangements with another PCT administering the scheme to carry out functions on its behalf in order to achieve economies of scale.
34.A scheme may provide for scheme members to have regard to guidance published by the scheme authority in order to ensure that the scheme is applied consistently (subsection (2)(d)). A scheme may also require scheme members to contribute to the costs of the scheme through contributions collected by the scheme authority (subsection (2)(g)): it is envisaged that the arrangements for contributions might, for example, be similar to the arrangements for contributions to the Clinical Negligence Scheme for Trusts(4). A scheme may also require a scheme member to charge an individual of a specified description (for example, a director) with responsibility for overseeing the carrying out of specified functions under the Act (subsection 2(h)), and advising the member about lessons that can be learnt from cases involving the member that are dealt with under the scheme (subsection (2)(i)).
35.A scheme must also require a scheme member to prepare and publish an annual report about cases under the scheme and the lessons to be learnt from them (subsection (3)).