HC Deb 12 March 1980 vol 980 cc1336-40 3.38 pm
Mr. Jack Ashley (Stoke-on-Trent, South)

I beg to move, That leave be given to bring in a Bill to empower the Health Service Commissioner to investigate matters of clinical judgment. The purpose of the Bill is to correct the balance of advantage that lies heavily against the individual patient making a complaint and overwhelmingly in favour of the hospital authorities. The aim of the Bill is to prevent the medical establishment from gagging an aggrieved patient by murmuring the incantation "clinical judgment".

The medical profession renders a valuable service to the community. The Bill does not seek to attack that service. It aims to provide patients with an impartial investigation of those complaints, which include matters of clinical judgment.

When people suffer damage or disaster they have a right to know what when wrong and why it went wrong. They have a right to seek the truth. That right is curtailed by the present system. As a consequence, patients are denied the explanation to which they are entitled. Complaints are investigated by the health authorities, but, as they are ultimately responsible, they sit both as defendants and as judges—the classical posture of indisputable authority.

It is misleading and idle to pretend that that such a system guarantees independent scrutiny. It plainly does not. It places the health authority in an indefensible position, because even when that authority acts with great care, its decisions are open to the charge of whitewash by aggrieved patients. There is always the lurking doubt that the medical authorities are protecting the medical establishment.

The present system is justified on the spurious ground that if patients have complaints they can sue. That is nonsense, because only the very rich or the impoverished—who are entitled to legal aid —have access to the courts. The majority risk crippling legal costs if they go to court. They face a powerful and well organised medical profession, buttressed by legal expertise.

It is natural that many patients back away, daunted by the threat from doctors and the legal establishment and by the odds that they recognise are too heavily stacked against them. Many patients, often with legitimate complaints, have no redress whatever. That means that they are denied independent scrutiny.

Many patients complain, because they want to know what happened. Some of them are very anxious to prevent the same thing from happening to other people. I am struck by the number of letters in my postbag from people who are anxious to help others. They say that they do not want what happened to them or their relatives to happen to others. That is a major reason for their concern.

The fear that some people may complain and then go to the courts for compensation leads to the worry by the medical profession about double jeopardy, and that is understandable. It may lead to double jeopardy, but the fear is exaggerated. Double jeopardy already exists in respect of the findings of the Ombudsman, but it simply has not happened yet.

There is also a fear of defensive medicine, but as virtually nothing is known about the extent of clinical error we simply do not know whether defensive medicine will arise. We do not know what defensive medicine—whatever that phrase may mean—will do. Personally, I have more confidence in doctors than has the spokesman of the medical profession. I do not think that doctors would shy away from treating their patients on these grounds. I believe that none of the excuses about double jeopardy or defensive medicine can obscure the fact that patients feel very deeply about the need for impartial investigation.

The letters of complaint that I receive are directed at neglect by doctors, at false entries or omissions from clinical notes, at concealed evidence, and at prejudiced hearings. The complaints may constitute only a tiny minority of patients —I think that they do—but until we have impartial investigations of the complaints we simply do not know whether they are justified. We certainly do not know how many are justified. Irrespective of their numbers, the patients concerned should have a right to an impartial hear- ing. That right does not exist at the moment if clinical judgment is involved.

The Davies committee favoured independent scrutiny of clinical judgment. The Select Committee, to which I pay a high tribute for its painstaking work, favoured the Ombudsman investigating clinical judgment. That Committee went into great detail and to enormous trouble, and its decision was clear-cut and heavily in favour of clinical judgment being included within the Ombudsman's remit.

According to the magazine General Practitioner the Secretary of State for Social Services went on record in 1978 as saying that he supported such a policy. I am glad to see him on the Front Bench this afternoon. He has since said that he doubts whether the proposal will gain the consent of the medical profession. I do not think that he would be justified in giving the profession the right to veto legislation if it thinks that the proposal will be inconvenient. The moment that he concedes that principle, the same principle must be conceded to dockers, dustman and everyone else. I hope, therefore, that doctors will not be permitted to exert undue interference in the legitimate powers of the Secretary of State.

The right hon. Gentleman has currently said that he is considering alternative proposals by the general consultants' committee. He is wasting his time, because the alternative proposals will mean only that the consultant concerned should discuss the complaint with the patient. If that does not succeed he should discuss it with the regional medical officer. If that does not succeed he should bring in two independent consultants. That sounds fine, until one reads the small print and discovers that the general consultants' committee blandly insists that the names of the two so-called independent consultants shall be vetted by the original consultant. How is that for cheek? It also says that if the two vetted consultants fail to convince the patient, no further action should be taken. That is an incredible proposal for seeking to alleviate the anxieties of people with legitimate fears.

As the British Medical Association's spokesman was forced to admit, these proposals leave the patient with no alternative but to shut up or sue. That is disgraceful. The proposals constitute a travesty of justice, designed simply to get doctors off the hook. They do not bear examination.

My Bill would ensure that complaints about clinical judgment were carefully and impartially investigated by the Parliamentary Commissioner, who would be advised by medical experts seeking the truth. He would not criticise, with the benefit of hindsight, doctors who had taken actions that proved to be wrong in the light of prevailing knowledge. It is important to make that distinction, because it is all too easy for science to move on and for people to find that they have made a mistake, given the state of prevailing knowledge.

The Bill ought to reassure the vast majority of the medical profession with its very high standards. It would reassure the public, who would have the right to an independent assessment of complaints about treatment that affects their health and their lives.

3.47 pm
Mr. John Stokes (Halesowen and Stourbridge)

I had expected that many hon. Members would rise to oppose the right hon. Member for Stoke-on-Trent, South (Mr. Ashley) in his attempt to obtain leave to bring in the Bill. However, since no one else has done so, and since the House is not exactly full, I feel that it is up to me to do it and for my voice to be heard in opposition.

I have been a member of the Select Committee on the Parliamentary Commissioner for some months. I have some knowledge of his work, and the greatest regard for it. The question is whether we substantially extend the Parliamentary Commissioner's scope to give him the power to intervene in what are purely matters of clinical judgment. That is a big decision for the House to make without debate. I believe that it would open up a veritable minefield, and the imagination boggles at the muddle, confusion and possible danger that would ensue.

We must, in the main, trust our doctors, nurses and surgeons. I speak as one who has from time to time nearly been killed and has therefore been under their care and judgment. I am only too aware that doctors, surgeons and nurses are human beings, and, of course, are capable of error, and that they make errors. How can those difficulties be overcome? I do not believe that it is wise or sensible, without the gravest deliberations, to seek to overcome them, by allowing the Parliamentary Commissioner a vast new extension of power in a totally unknown field. As ordinary people, we do not have either the training or the knowledge to question the clinical judgment of the medical profession.

As for enlarging the scope, surely everything in life cannot be under debate and scrutiny. If we are to live reasonably some matters must be taken on trust, unless there are grave grounds to the contrary. I fear that sometimes, today, in a modern democracy, complaints become a sort of disease. If life is to be lived from the cradle to the grave, let us hope that it will not be simply one long complaint.

I believe that it would be wrong, unwise and dangerous for the Bill to be passed at this time, after only a few minutes discussion. I hope, therefore, that it will be rejected by the good sense of the House.

Question put, pursuant to Standing Order No. 13 (Motions for leave to bring in Bills and Nomination of Select Committees at Commencement of Public Business), and agreed to.

Bill ordered to be brought in by Mr. Jack Ashley, Mr. Peter Bottomley, Mr. David Ennals, Mr. Charles Fletcher-Cooke, Mr. Alfred Morris and Mr. Donald Stewart.