Commentary on Sections Section 6: Proceedings under scheme
25.This section sets out the sort of provision that a scheme may make as regards proceedings under the scheme (subsections (1) and (2)). For example, the Secretary of State may make provision about the investigation of cases under the scheme, the making of decisions about the application of the scheme, about the assessment of liability under the scheme and about the form and content of settlement agreements under the scheme.
26.A scheme may, for example, specify that decisions on eligibility of cases to be considered under the scheme will be made by the scheme authority, and that offers of redress will be open for a set period of time for consideration by the patient or such other person as is eligible for redress under the scheme where appropriate (such as where there is a claim under the Fatal Accidents Act 1976). A scheme may also, for example, provide that certain offers of redress must be subject to approval by a court (subsection (2)(e)). It is currently envisaged that such provision might be made in cases involving offers made to children or mentally incapacitated people.
27.A scheme must provide for the findings of an investigation to be recorded in an investigation report (subsection 3(a)) and for the report to be made available on request to the individual seeking redress (subsection 3(b)). The scheme may provide that the report need not be provided before the offer is made or before proceedings are terminated (subsection 4(a)). A scheme may also specify other circumstances where reports need not be provided (subsection 4(b)); this is intended for rare cases where there are, for example, patient confidentiality issues.
28.This section also sets out that a scheme must provide for a settlement agreement reached under the scheme to include a waiver of the right to bring court proceedings in respect of the liability to which the settlement relates (subsection (5)).