HC Deb 22 February 1972 vol 831 cc1104-14
The Secretary of State for Social Services (Sir Keith Joseph)

With your permission, Mr. Speaker, and that of the House, I should like to make a statement about the appointment of a Health Service Commissioner.

The Government have decided that there should be a Health Service Commissioner as part of the arrangements for dealing with complaints in the National Health Service. Although the great majority of complaints are satisfactorily dealt with by health authorities, there are some that the citizen should be able to refer to an entirely independent person if he remains dissatisfied with the action taken by the Health Service authority. A commissioner would serve this independent function and would reinforce the rights of those who use the Health Service, without detracting from the responsibilities of the Health Service authorities or reflecting on the value of the work done by the staff of the service.

There will be a Health Service Commissioner for England, one for Wales and one for Scotland, but, initially at least, the three posts will be held by the same person. This is an important expansion of the machinery for the independent investigation of complaints for which the Parliamentary Commissioner for Administration represents a proven precedent. It would be premature for the commissioner to be designated now. The Government think, however, that the work of the Health Service Commissioner and of the Parliamentary Commissioner for Administration should be closely associated, and they recognise that there are strong arguments for considering whether these posts should all be held by the same person. Before reaching a decision on this, the views of the Select Committee on the Parliamentary Commissioner for Administration will be sought. Appointment of the commissioner will be by Her Majesty by Letters Patent. In this and in his tenure of office, he will follow the precedent set by the Parliamentary Commissioner for Administration, and will enjoy the same degree of independence in carrying out his functions. The Health Service authorities will continue to be responsible for investigating complaints made to them, as part of their general management responsibilities. The commissioner will consider only those complaints made by or on behalf of patients which have already been made to the responsible authorities and not been resolved to the complainant's satisfaction. Complainants, or those acting for them, will in all cases deal directly with the commissioner.

The commissioner will be responsible for investigating actions taken by or on behalf of the Health Service authorities where it is claimed that an individual person has suffered injustice or hardship through maladministration, or through a failure to provide necessary treatment and care. He will not, however, deal with complaints from staff about their pay and conditions of service, or with complaints concerning contracts or other commercial transactions. Nor will he investigate the actions of general medical and dental practitioners, pharmacists, ophthalmic medical practitioners and opticians, all of whom are not employees of the Health Service but are in contract with it. A statutory procedure already exists for examining complaints against them, and this will continue, without the involvement of the commissioner. In Scotland the commissioner will not deal with complaints falling within the jurisdiction of the Mental Welfare Commission.

Together with my right hon. Friends the Secretaries of State for Scotland and for Wales, I have had thorough and constructive discussions with representatives of the medical profession about complaints bearing on the relationship between clinicians and patients. We have decided that the commissioner should be precluded from investigating any action taken in the course of diagnosis, treatment or clinical care of an individual patient which, in the commissioner's opinion, was taken solely in the exercise of clinical judgment.

In cases coming within his jurisdiction, the Parliamentary Commissioner for Administration does not look into complaints when the complainant has or had a right of appeal to a tribunal or a remedy by way of proceedings in a court of law, unless he is satisfied that in the particular circumstances of the case it is unreasonable to expect the complainant to resort or have resorted to it. The Health Service Commissioner will follow the same practice I would expect that he would need to use his discretion to investigate this type of case only on rare occasions.

The procedure under which the Commissioner will conduct investigations will be similar to that observed by the Parliamentary Commissioner for Administration. He will be required to send a report of the results of investigations to the complainant, to any person complained against and to the responsible health authorities. He will make an annual report, and may make special reports, to the Secretary of State, who will be required to lay them before both Houses of Parliament.

Legislation will be required to enable the Health Service Commissioner to be appointed.

Mrs. Castle

Is the right hon. Gentleman aware that we would wish to congratulate him on his realisation, following the publication of the Payne Committee's Report and the succession of reports that we have had on the scandals in our long-stay mental hospitals, that the establishment of an independent investigator external to the Health Service is imperative? Is he further aware that it would be tragic if we were now to throw away the opportunity to create a really effective form of external investigation? Although his statement is so long and detailed that it is impossible for us clearly to understand all its implications, does he appreciate that at first hearing it seems to have some disappointing and even alarming elements?

May I ask three questions? When the right hon. Gentleman says that a complaint must be made to the responsible authority in the first place, is he not aware that if the complaints have first to be made by patients, relatives or nurses to the responsible authority, then, as the Payne Report, the Farleigh Report and the others have shown, many complaints will never be made, because patients are in many cases helpless and nurses go in fear of victimisation if they make a complaint? Is it not essential in view of the exceptional circumstances in the hospital service for there to be a right of direct access to the commissioner in the first place, formally or informally? Can we have the right hon. Gentleman's assurance that this will be possible, because otherwise we shall not avoid the sort of situation raised in recent reports?

Secondly, may I suggest that in view of these exceptional circumstances it would not be right to merge the posts of Health Service Commissioner and Parliamentary Commissioner? Thirdly, could the right hon. Gentleman elaborate on the rather obscure reference to the rights of investigation into complaints on the relationship between clinicians and patients? Can he give the House an assurance that there will be no limitation on the discretion of the commissioner to take up any complaint?

Finally, will he give an assurance that in view of the importance and complexity of this matter we can have a debate in the House before any final form of investigation is decided upon?

Sir K. Joseph

The question of a debate in the House will be met by the needs of the legislation required to bring about this commissioner. It is sensible that complaints should continue to be made first to the Health Service Authority, where in most cases they will be put right. In answer to the right hon. Lady's question, the knowledge by the Health Service authority that patients, their relatives or nurses will have access to the Health Service Commissioner if a complaint is either suppressed or not properly dealt with will surely remove any danger about suppression of complaints. No decision has yet been made on whether the post will be held separately or by the Parliamentary Commissioner for Administration, and I am consulting the Select Committee about this. We decided after discussion with the doctors that it would be intolerable for them to face a multiplicity of complaint procedures. They are already subject to procedures on clinical matters through the courts and the General Medical Council, as well as the perfectly satisfactory complaints procedure for family practitioners, opticians and chemists.

Sir R. Turton

While congratulating my right hon. Friend on announcing a long-overdue reform, may I ask him to explain the position that Members of Parliament would be in with this commissioner? It would appear that the channel is not to be, as it was with the Parliamentary Commissioner for Administration, through the Member of Parliament alone. How will he avoid the duplication of an hon. Member taking the matter up with a Minister at the same time as his constituent is taking the matter up with the Health Service Commissioner?

Sir K. Joseph

I hope that the House will recognise the difference between the two functions. The Parliamentary Commissioner for Administration is part of Parliament's supervision of the performance of Government Departments. The Health Service Commissioner is intended to be part of the fabric of the Health Service. I expect, although this will be subject to discussion during the passage of the legislation, that Members of Parliament faced with complaints suitable for the Health Service Commissioner would be wise to ask whether their constituent has first and foremost put the complaint to the Health Service Authority. If that has been done and the constituent is dissatisfied, he could then recommend him to go to the Health Service Commissioner.

Mr. David Steel

Will the right hon. Gentleman accept that we on this bench warmly welcome his statement as something for which we have been pressing for some time? Will he also accept that we share the hesitation that has been expressed about his exclusion of medical practitioners and others from the scope of the commissioner's duties? When he talks about complaints on behalf of patients, does this include the possibility of a complaint by relatives of a deceased patient, not necessarily on behalf of the patient? Lastly, would he reflect that it is probably undesirable to combine this job with that of the Parliamentary Commissioner for Administration precisely because of the difference that he has outlined?

Sir K. Joseph

We will certainly take that last point into account. I dealt with the hon. Gentleman's first point earlier. The answer to his second point about representations by relatives on behalf of a deceased patient is "Yes".

Mr. Brian Harrison

Is my right hon. Friend aware that I warmly welcome the step that he has taken? Could he use this as an opportunity to make clear the liabilities of management committees following investigation of these complaints?

Sir K. Joseph

Management committees that come under the criticism of Health Service Commissioner will no doubt respond as do any others to criticism, by trying to put right that which has been criticised unless they feel there is nothing more to be done. The sanction here is public criticism of a public body.

Mr. Michael Stewart

While warmly congratulating the Secretary of State on this step, may I ask him two questions? First, would he accept that, although the proposed restrictions on the proposed commissioner's powers may be necessary at present, this House ought not to accept them as permanent and we must judge in the light of experience whether it might not be right to give the commissioner wider powers? Secondly, what would be the relationship between the proposed commissioner and the Select Committee of this House to which the present ombudsman reports?

Sir K. Joseph

I shall need to consider the last point raised by the right hon. Gentleman. As to his first question, the House will always want to be very careful to avoid multiplying the ways in which any individual can be subject to process. What we are excluding at the moment are those cases where anyone in the Health Service is subject to legal procedure or is already subject as a clinician to quite separate, existing sanctions. The House will always be careful to maintain that principle.

Sir B. Rhys Williams

May I thank my right hon. Friend most warmly for his statement and express the hope that it will soon be followed by the necessary legislation? May I ask him to give consideration to the need for the commissioner to have jurisdiction to investigate complaints against institutions supported by local authorities?

Sir K. Joseph

My right hon. Friend the Prime Minister announced only a few weeks ago that there is to be an ombudsman in connection with local government. That is the answer to my hon. Friend's question.

Mr. Conlan

While congratulating the Secretary of State, may I ask him two questions'? First will the commissioner be able to investigate complaints about the unequal distribution of consultants from area to area'? Secondly, will he be able to look into questions of the unfair and unequal distribution of financial resources within the regional authority areas and between district and district?

Sir K. Joseph

Yes, so far as these do not trench upon clinical decisions. The Health Service Commissioner may often have to reflect on the management use of resources made available to the service.

Dr. Stuttaford

Is my right hon. Friend aware that we wish to congratulate him very much on the announcement he has made, but does he realise that there is always a need for speed in investigating medical complaints because the staff of hospitals move from one hospital to another very quickly'? Will he reconsider his decision not to allow direct access to the commissioner by Members of Parliament?

Sir K. Joseph

I do not think that direct access by Members of Parliament—which surely would be indirect action concerning a patient—would speed the process at all. The complaint would go to the Health Service authority, and if the complainant were still unsatisfied he would have direct access to the commissioner.

Mr. Ellis

Is the right hon. Gentleman aware that many people feel that the only part of the tripartite services where there is an element of consumer sovereignty is the part administered by the local health authority? Will he take a leaf out of the book of the previous Administration and ensure that area health authorities will have influence as representatives of the local authority?

Sir K. Joseph

That is a separate question, as I think the hon. Member knows.

Mr. Kinsey

Can my right hon. Friend tell us when this proposal will come into being as some cases pending consideration by the ombudsman are on medical matters which should be dealt with?

Sir K. Joseph

I am afraid that I cannot give my hon. Friend guidance on that. This will not be done in time to deal with existing complaints.

Mr. Russell Kerr

What staff has the right hon. Gentleman in mind for the new commissioner?

Sir K. Joseph

I cannot tell the hon. Member that yet.

Mr. Boscawen

Can my right hon. Friend say whether this procedure of appeal to an ombudsman will replace right of appeal to the Medical Services Tribunal? If not, cases will take a very long time before they are finally heard by the ombudsman.

Sir K. Joseph

I should like to look deeper into that question, but I think that the answer is "no"; it is a parallel process and does not affect the Medical Services Tribunal. I will write to my hon. Friend.

Dr. Miller

While welcoming the proposed appointment and congratulating the right hon. Gentleman on it, may I say that I think there will be considerable weakening of the authority of the commissioner if he does not have the ability or the right to investigate clinical complaints? I can appreciate the right hon. Gentleman's unwillingness to interfere in this sphere, but is he not aware that there are two spheres in which there could be cause for complaint by patients? The first is in the procedure of performing operations which prove either to have been unnecessary or to have been wrong operations. That is in the medical field. In the dental field there is the situation in which thousands of people are walking about this country with plastic monuments to the gross inefficiency of the dental profession because they have had teeth removed which need not have been removed. Will the right hon. Gentleman again consider making it possible in the terms of reference of the commissioner for a direct complaint to be made in these fields?

Sir K. Joseph

I think the hon. Gentleman would find himself in a very small minority among the professions in taking the line he has taken. The House must remember that clinical judgments are already open to challenge by hospital authorities, the General Medical Council and the courts, and complainants already have recourse to them. We do not think we should add the commissioner. In any case, there should be a limit to the number of investigating bodies.

Mr. R. C. Mitchell

Can the right hon. Gentleman give an indication of when he expects to introduce the necessary legislation and whether the commissioner can investigate complaints due to lack of co-ordination between hospital services, the hospital welfare services, and so on?

Sir K. Joseph

I cannot give an answer about the time when legislation will be introduced. The second question was a very good one. This will depend on the relationship as defined between the Health Service Commissioner and local ombudsmen as announced by the Prime Miniser.

Mr. Ross

Of course we are interested in this proposal, but some aspects are rather vague and rather limiting. The right hon. Gentleman said that there would be three commissioners—one for Scottish, one for Welsh, and one for English complaints—but that initially this appointment is to be held by one man. [An HON. MEMBER "A Scotsman."] Can the right hon. Gentleman tell us how long this initial period is to last and what is the intention in future? Does he think that someone looking into the Scottish Health Service should report to an English Secretary of State?

Sir K. Joseph

The reports will be made separately to the Secretaries of State. If I had described the whole of this process I would have had to make a longer statement, and that I do not think the House would want. The Commissioner will report separately to the Secretary of State concerned.

Mr. Speaker

Mr. John Parker—

Mr. John Mendelson

On a point of order, Mr. Speaker. The Secretary of State made an announcement as to future debates.

Without touching on the substance of his statement at all, may I submit that in view of the many concerns expressed about the scope of the new appointment it would be wise for the Government to allow a debate to take place before they put the legislation into final draft? Otherwise when they bring the legislation forward they will be committed as a Government. May I urge through you that the Government should allow a debate on this proposal before the legislation is drafted?

Mr. English

Further to that point of order, Mr. Speaker. The Secretary of State did not say that the Parliamentary Commissioner has a jurisdiction over the hospital service and directly in the case of some hospitals in respect of which any complaint has gone so far as to reach his Department. There is some need for clarification.

Mr. Speaker

These are not matters of order, but may be matters for discussion at the time when the Bill is introduced, or before. This is not a matter for me.

Mrs. Castle

Further to that point of order, Mr. Speaker. You rather suddenly called my hon. Friend the Member for Dagenham (Mr. Parker), who is to introduce the next business. This matter has been rather left in the air, first, as to when we can expect the legislation, and, secondly, as to when we can have another opportunity to clarify a whole number of unsatisfactory points. If we could have an answer on the two questions—the possibility of a debate and the time of the legislation—that would help the whole House.

Sir Harmer Nicholls

Is not this one of those matters which God made the usual channels to deal with?

Mr. Speaker

It is obvious that these are matters for discussion. The Leader of the House has been present and has heard most of this discussion. These are not matters of order. The point has been made in an alleged point of order, and there it must rest.