§ [Relevant documents: The First Report from the Select Committee on the Parliamentary Commissioner for Administration of Session 1993-94 on the Powers, Work and Jurisdiction of the Ombudsman (House of Commons Papers No. 33-1 and II), the Fifth Report from the Committee of Session 1993-94, containing the Government's Reply thereto (House of Commons Paper No. 619), the Sixth Report from the Committee of Session 1993-94 on the Report of the Health Service Commissioner for 1992-93 (House of Commons Paper No. 42) and the Third Special Report from the Committee of Session 1994-95, containing the Government's Response to the Committee's recommendations on the Reform of the NHS Complaints Procedures (House of Commons Paper No. 334).]
§ Order for Second Reading read.4.21 pm
§ The Minister for Health (Mr. Gerald Malone)
I beg to move, That the Bill be now read a Second time.
As you are only too well aware, Madam Speaker, the House is often the cockpit of rather violent debate. It is sometimes the focus of international attention and the seat of controversy. I do not think that this debate is necessarily going to be one of those occasions and perhaps you will welcome that, Madam Speaker.
I was slightly concerned to note in the Peterborough column of The Daily Telegraph that this measure is the subject of no controversy at all, and that
Silence, it is hoped, will descend on the House of Commonsfrom about now until about 6.30 this evening. We are enjoined to be quiet because "Gardener's Question Time" is apparently being recorded in the Palace of Westminster's Terrace Restaurant. On this important measure, however, I do not think that we will be quiet.
I was somewhat concerned to learn, however—I am sure that the House will share the concern—that you, Madam Speaker, have an interest in what is happening in "Gardener's Question Time" because you have a
sickly Busy Lizzie which has been struggling unpromisingly on the kitchen windowsill.If we lose your presence during this important debate, we will understand why.
Although it may not be in the cockpit of controversy, this Bill is extremely important. It extends the jurisdiction of the health service commissioner. It is one of the main planks of our reform of the national health service complaints procedures. The Bill will touch not only on all those who work in the NHS but on patients. The Bill will introduce the most significant change proposed to the role of the health service commissioner—or ombudsman, as he is better known—since the inception of that post in 1973.
If Parliament approves the measure, patients and their relatives will, for the first time, be able to complain to the ombudsman about all aspects of the care and treatment provided by the NHS. The statutory bars that operate to prevent the ombudsman from investigating complaints about the exercise of clinical judgment and about family health services will be removed.
The Bill in essence would amend the Health Service Commissioners Act 1993. That Act provides that there shall be a health service commissioner for England, for Wales and for Scotland. For the sake of clarity, I should 850 say that the Bill and the notes on clauses refer to commissioners, in the plural, or to a commissioner. All three offices have always been held by the same person, so I shall avoid such artificial language in this speech and refer to the commissioner or the ombudsman, which I think the House will find more comprehensible.
I turn to the origins of the proposals. If one works in the health service, I suppose that the understandable personal reaction to receiving a complaint is to feel negative and defensive. NHS bodies are also understandably institutionally nervous about encouraging people to complain because of the often simplistic, blame-oriented exposure given to complaints' numbers by the media.
The handling of complaints in a responsible and sensitive way is one of the services that patients and their relatives ought to expect the NHS to provide. If complaints are investigated fully and objectively without automatically finding fault with staff, valuable information can be gained on how to improve services for other patients. That is why we want a new system for complaints in the NHS.
As the House will know, an independent review of NHS complaints procedures was commissioned in 1993 by the then Secretary of State in response to continued and growing concerns about the complex and unfriendly systems in place. Different procedures apply to different parts of the NHS, making it difficult for patients to know how to complain at all. It was a maze through which patients were expected to travel and difficult for them to undertake.
The review committee, which was chaired by Professor Alan Wilson, vice-chancellor of Leeds university, considered more than 250 pieces of evidence before reaching its conclusions. The committee's report, "Being Heard", was published in May 1994. One of its main recommendations was to extend the health service commissioner's jurisdiction to cover all NHS complaints. The proposed extension of the ombudsman's jurisdiction was also recommended by the Select Committee on the Parliamentary Commissioner for Administration in its first and sixth reports of the 1993-94 Session.
Following an extensive consultation exercise on the report, the Government announced their acceptance of its main recommendations in "Acting on Complaints", published on 22 March 1995, and, at the same time, responded to parallel recommendations made by the Select Committee, which were later published as its third special report of the 1994-95 Session. Copies of these documents are, of course, in the Library.
The proposal to extend the ombudsman's jurisdiction and the other main recommendations made by the Wilson committee were widely welcomed in the 600-plus responses. The fact that there were 600-plus responses shows just how important the matter is. I am especially pleased by the broadly positive response of professional bodies to the Wilson proposals. The drive to improve complaints procedures sits well with the basic clinical objectives of ensuring the best for patients, rigorously auditing results and seeking to apply lessons from that audit.
I turn to the principles that will underpin the new system. The system is built on nine principles, which were all set out in the Wilson report. They arc all fairly straightforward: responsiveness, quality enhancement, cost-effectiveness, accessibility, impartiality, simplicity, 851 speed, confidentiality and accountability. One extra principle emerged from our discussions on "Acting on Complaints": thoroughness. Those principles will be embodied in the new system.
The new complaints procedure will focus on satisfying complainant concerns, while being fair and being seen to be fair to practitioners and staff. The same basic procedures will apply to all parts of the NHS and to all types of complaint, with the minimum number of different features necessary to reflect different contractual arrangements, the need for professional advice, and so on.
§ Dr. Norman A. Godman (Greenock and Port Glasgow)
Will the Minister confirm that the ombudsman does not have any power to inflict any kind of sanction against an organisation or individual guilty of, say, gross negligence? May I give him an example to consider? The day before yesterday, medical records concerning abortions carried out at the Rankin hospital in Greenock were found by a member of public. They had been left by administrative staff in the derelict hospital. I have brought the matter to the attention of the office of the Minister of State, Scottish Office with a view to making a formal complaint.
In this case of gross negligence, the health commissioner will not be able to impose any penalty on those found guilty. He will just issue recommendations and utter soothing words to those poor women, who will be terribly distressed by the affair.
§ Mr. Malone
As the hon. Gentleman well knows, there are other ways in which redress can be sought in such matters. He understands, I am sure, the purpose of the ombudsman's jurisdiction. The ombudsman has to report to the House and to make recommendations. Indeed, he can lay special reports if he feels that the circumstances warrant it. That is the purpose of the procedure and it is not the intention of the Bill to change the purpose of the ombudsman, as set out originally in the National Health Service Reorganisation Act 1973. If the hon. Gentleman is looking for further redress, he should realise that other avenues are open to people who feel that they have been affected in different ways and who need different forms of redress. My hon. Friend the Minister of State, Scottish Office, who is sitting beside me, has heard what the hon. Gentleman has said.
I return to the outline of the new system. It will deal only with complaints, not with disciplinary matters; that underpins the point I made to the hon. Member for Greenock and Port Glasgow (Dr. Godman). We are discussing with the professional representative organisations how to separate the existing terms of service procedures for family practitioners from complaints procedures.
The reforms to the NHS complaints procedures will improve the way in which complaints are handled at every level. There will be a three-tier approach throughout the health service. The first stage—local resolution—will involve the local health care provider seeking to resolve the problem directly with the complainant, wherever possible through a speedy and effective informal approach. Clearly, that is by far the best way. If the complainant remains dissatisfied, he or she may ask a non-executive director or convener of the trust, health 852 authority or health board involved to decide whether a three-person independent review panel should be set up to review the complaint, with independent professional advice on clinical issues. If both those measures fail, the third tier is for the complainant to refer his or her complaint to the ombudsman, who is completely independent of both the health service and the Government, and who is answerable directly to the House.
Many concerns have been raised about the implementation of the proposals; I now turn to the implementation timetable. The reforms to the internal NHS complaints procedures will be implemented on 1 April 1996 by means of subordinate legislation separate from the Bill. If Parliament supports the measure, and subject, of course, to Royal Assent, we hope that the provisions can be brought into force as close as possible to that date so that all patients have access to the third tier of the reformed complaints system.
§ Mr. Nick Ainger (Pembroke)
Is the Minister satisfied that, by 1 April 1996, staff will be well aware of how the system will operate? If required, will training have been provided before 1 April?
§ Mr. Malone
The hon. Gentleman makes a valid point. It is important that staff are trained. It is important that proper guidance is given to them and that they have the tools with which they can implement the procedure. I attended a conference at which staff learned about the introduction of the proposals and I was much reassured not only by the well-developed interest with which staff were taking the matter forward but by the fact that software systems had been well developed so that management of the system could be eased in. I know that the timetable is tight, but in the interests of all—both those who work in the health service and patients—it is important that we stick to a rigid timetable. We have in place all the necessary training aids and procedures. The deadline is tight, but we shall make it.
I come now to the detailed provisions of the Bill. Clauses 1 and 2 deal with family health service and independent providers. They add GPs, dentists, pharmacists, providers of NHS ophthalmic services and independent providers to the list of those whom the commissioner may investigate and set out his remit in respect of the investigation of complaints about these providers.
The point of bringing independent providers within the commissioner's jurisdiction is to put beyond any doubt—although I do not believe that any doubt was justified—the existing presumption that his jurisdiction already covers the services which they provide to NHS patients. The measure makes it clear beyond peradventure that an NHS patient will fall within the provisions of the complaints procedure, whoever is providing the service.
Ever since the National Health Service Reorganisation Act 1973—under which the commissioner's office was first established—the legislation governing the commissioner's procedures has been intended to allow him to investigate complaints about services provided to patients by independent providers under contracts with the NHS.
We are taking the opportunity in the Bill to clarify the existing powers of the ombudsman in section 7(2) of the 1993 Act by bringing independent providers expressly within the ombudsman's jurisdiction. Independent providers are covered only in so far as they provide services to NHS patients. 853 Clause 3 brings schedule 1, which deals with supplementary and consequential provisions relating to family health service providers and independent providers, into effect.
Clause 4 brings the Mental Welfare Commission for Scotland within the commissioner's jurisdiction and specifies certain functions of that body which are excluded from investigation. This restores the position in Scotland to that in England and Wales, where the Mental Health Act Commission is already within the commissioner's jurisdiction.
The functions of the Mental Welfare Commission relating to visiting detained patients and investigating their complaints would be brought within the commissioner's jurisdiction. Those functions relating to the review and discharge of detained patients, which in England and Wales are carried out by the mental health review tribunals, would remain outside the commissioner's jurisdiction. This again reflects the position in England and Wales. Parity will now be restored across the three nations beyond any doubt.
Clause 5 deals with the availability of another remedy, and secures that the new NHS complaints procedures should have been exhausted before a commissioner can investigate a complaint, subject to his discretion to investigate where he considers it unreasonable to expect the complainant to exhaust the other procedures. There is nothing new in the measure, which reiterates a power that is expressed in a different way in earlier legislation.
The new complaints procedures will provide an opportunity for independent review within the health service, and it would normally be reasonable to expect a complainant to have attempted to resolve his complaint through this procedure before it could he investigated by the ombudsman. Although the ombudsman is keen to take on whatever work is put his way, all the procedures should be exhausted within their proper context. That will ensure that the proper number of cases get through to the ombudsman, but that the other routes are properly used.
It is recognised that there may be circumstances in which it would be unreasonable to expect this—for example, where there had been excessive delay in considering the complaint locally or, on certain occasions, where a member of staff wanted to refer a complaint to the ombudsman on behalf of a patient unable to act for himself or herself. It is possible for the ombudsman to use his discretion in reasonable circumstances to hear the complaint directly.
Clause 6 deals with the important issue of the exercise of clinical judgment—one of the fundamental changes brought about by the legislation. Clause 6 removes the statutory bar on the commissioner investigating complaints about action taken in consequence of the exercise of clinical judgment. When the office of commissioner was set up in 1973, complaints about actions arising directly from the exercise of clinical judgment were explicitly excluded from his jurisdiction.
The reason given at the time was to avoid impinging on doctors' freedom to treat their patients as they thought best; but the House will agree that the world has moved on considerably since those days. Of course we fully respect the independence of the medical and other clinical professions, and the special expertise and training which members of those professions hold, but it is very hard to explain to patients who simply do not understand that they 854 may not ask the ombudsman to investigate the very complaints about which they often feel most concerned—those relating to the clinical decisions made about their care and treatment within the NHS.
In extending the ombudsman's jurisdiction to allow him to investigate complaints about clinical judgment—by any of the recognised health care professionals in the NHS, including doctors, nurses, midwives, family health service providers and others—it is necessary to ensure that the professional expertise involved in such judgments is fully respected, and also to ensure that those investigated are treated with scrupulous fairness. It would not be right to criticise professional judgments simply because they happened to result in hardship or suffering through no fault of the person who exercised the judgment, understandable though it might be for the patient to wish to complain in such circumstances.
§ Mrs. Elizabeth Peacock (Batley and Spen)
Will my hon. Friend say a little, before he moves on to the next clause, about what action can be taken if the ombudsman finds that something has gone wrong which has left someone in a much worse state after surgery than before it? People, and certainly constituents of mine, have found it most difficult to take action in such cases.
§ Mr. Malone
I shall deal with that point later in my remarks. If it is appropriate to pass any information that is gleaned by the ombudsman to another forum where it can be used, that will be possible.
§ Mr. Barry Jones (Alyn and Deeside)
Before we deal with the process of the ombudsman, let us consider the case of a GP who is found guilty of professional misconduct. He appeals and, after appealing, is enabled to continue practising until his appeal is heard—perhaps for six or 18 months. What might the Government do to help assuage the fears of members of the GPs' panel?
§ Mr. Malone
On the hon. Gentleman's last point about the GPs' panel, I am not sure. We are discussing powers that we have taken in recent legislation to empower the General Medical Council to deal with such matters in a far more flexible way, as the hon. Gentleman knows, so that the outcome satisfies patients' rights and interests. That is a slightly separate, although parallel, matter to that which is before the House today.
I return to the detail of clause 6. In considering whether to uphold a complaint about a clinical judgment, the commissioner will need to take account of clinical advice. That is a central element in the changes that are before the House in the Bill. For example, the commissioner will need to take account of whether the judgment was of an acceptable professional standard. The commissioner has been helpful by making available to the House a paper setting out how he proposes to exercise his new jurisdiction, should Parliament approve the Bill. I commend the paper to right hon. and hon. Members, for it sets out in some detail—and, unusually for documents of this kind, in straightforward English and with clarity, which I welcome—how he proposes to approach questions about clinical judgment and other issues arising from the provisions in this Bill. I commend it to the House.
The 1973 Act which set up the office of health service commissioner made provision to enable the commissioner to receive independent advice. Those provisions are 855 preserved in the 1993 Act and enable the commissioner to obtain advice from anyone who, in his opinion, is qualified to give it. The commissioner's paper sets out the principles that he is minded to follow in seeking such advice.
Clause 7 deals with general health services. It removes the statutory bar on the commissioner investigating complaints about family health services and provides that he cannot investigate action taken by a health authority or health board in investigating alleged breaches of terms of service by family health service providers. This is entirely in line with the existing provisions in section 7 of the 1993 Act which prevent the commissioner from investigating personnel or disciplinary matters relating to service in the NHS.
Clause 8 deals directly with personnel matters. It amends the provision in the 1993 Act which provides that a commissioner shall not investigate action taken in connection with personnel matters in relation to service under the National Health Service Act 1977 or the National Health Service (Scotland) Act 1978, to include service under the National Health Service and Community Care Act 1990. This is simply a tidying-up measure. Clause 8 also secures that a commissioner can investigate action taken by a health service body in operating a complaints procedure.
The general public have access to the commissioner to complain about, among other things, the way in which NHS complaints systems have treated them. Clause 8 ensures that NHS staff, family health service providers and independent providers and those working for them are given the same right to complain about the way in which complaints systems operated by health service bodies have treated them, in the interest of equity. Employees of health service bodies would, by virtue of the provisions in clause 5, normally need to invoke and exhaust established grievance procedures for dealing with such complaints before the ombudsman could investigate.
Clause 9 abolishes the requirement that a health service body should be given an opportunity to investigate a complaint. This is overtaken by the provisions in clause 5 about the exhaustion of the NHS complaints procedures.
Clause 10 requires a commissioner to send a report of an investigation to the health service body which is the relevant one when the report is made. This is simply a tidying-up measure to take account of the fact that health service bodies can be reconfigured during the period of an investigation.
Clause 10 also fulfils the Government's commitment to legislate on certain recommendations about reports made by the Select Committee on the Parliamentary Commissioner for Administration. It removes the requirement to inform the relevant health service body where the commissioner decides not to investigate a complaint, and requires the commissioner to lay special reports and annual and other reports on the performance of his functions directly before Parliament, rather than via the Secretary of State, thus enhancing the direct link between the commissioner and Parliament and, in particular, the House.
Clause 11 extends the exemption from giving evidence in proceedings to a commissioner's advisers. That is necessary because of the greater need to obtain advice 856 from external advisers once the commissioner's remit is extended to include clinical judgment. The clause also allows a commissioner, at his discretion, to disclose information—this is the point that my hon. Friend the Member for Batley and Spen (Mrs. Peacock) made in relation to an earlier clause—to the appropriate regulatory or health service body or employer where he considers it necessary for the protection of the health and safety of patients.
At present, the commissioner is somewhat in the position of a confessor. Any information that he discovers during an investigation may not be passed to any person other than for the purposes of the investigation and any report of it, or for certain other very limited purposes. Therefore, if, during an investigation the commissioner discovers information that does not fall to be disclosed for those purposes, but indicates that a person constitutes a threat to the health or safety of patients—for instance, on grounds of health or conduct—he may not disclose it to any person outside his own office. Clause 11 corrects that defect in the 1993 Act. In the interest of natural justice, the clause requires the commissioner to inform any person about whom he discloses such information.
Clause 12 makes financial provision for the Bill. The Bill's provisions would increase expenditure by the health service commissioner's office under the Health Service Commissioners Act 1993. The cost of this is to be met by transfer from the relevant votes of the Department of Health and the Welsh and Scottish Offices. The costs arising from the Bill will be met from existing resources.
§ Dr. Tony Wright (Cannock and Burntwood)
The Minister says that the additional costs arising from the Bill in relation to the health service commissioner will be £5 million in the first year, rising to £6.5 million the following year. Taken as a whole, this change to the NHS complaints system will clearly have considerable costs across the system beyond those occasioned by the new role for the health service commissioner. Could the Minister say how large those costs will be and why they are going to be taken only from existing resources?
§ Mr. Malone
The hon. Gentleman will probably be aware from previous discussions in the House about the Wilson report that the view is that, once the Bill is implemented, it will, over time, be cost neutral. When it is implemented effectively, it will reduce the complexity of the diverse complaints systems in the health service. That will be very much a saving. He will understand that we have a whole family of complaints systems, which are frequently difficult to administer. take substantial time and often result in people taking complaints through all stages in the process because they do not get satisfaction. We are replacing that system with a more streamlined, single system which will serve the whole national health service.
I take this opportunity to set it on record that I hope that the Bill will result in far more complaints being resolved quickly within the body that is responsible for dealing with the complaint so that fewer complaints are passed up the system to the second tier and, eventually, to the ombudsman. That is the purpose of the Bill and the assessment is that, should the system he implemented in the way that we foresee, over time it will he cost neutral—and a better system, too.
The Bill is part and parcel of our reforms to the way in which complaints are handled throughout the NHS. It will, as I have said, improve the efficiency of the way 857 in which we handle complaints and enable health care providers to learn valuable lessons from investigating complaints and so improve the efficiency and effectiveness of services generally.
Clauses 13 and 14 deal with repeals and commencement. Clauses 15 and 16 deal with the extent of the Bill and citation.
There are two schedules to the Bill. Schedule 1 deals with amendments to the 1993 Act, which are supplementary and consequential to the main provisions of the Bill on family health service and independent providers. Schedule 2 sets out the repeals to the 1993 Act provided for in the Bill.
I shall briefly outline the main provisions of schedule 1. Paragraph 2 enables the commissioner to investigate contractual or commercial transactions that relate to the purchase of services for NHS patients from independent providers by GP fundholders, who are newly brought under the commissioner's jurisdiction as family health service providers. That is simply a logical extension of the powers that the commissioner previously enjoyed in other areas. In addition, paragraph 2 excludes from the commissioner's jurisdiction complaints arising from disputes between family health service providers and health authorities or health boards about the arrangements made between them for the provision of family health services.
Paragraph 3 of schedule 1 provides for family health service or independent providers, or those working for them, to be given an opportunity to comment on any allegations in a complaint and ensures that family health service and independent providers are able to take action, such as disciplinary action, against a member of staff in relation to matters under investigation. In essence, it means that, when a complaint is made, other possible lines of redress will not close down while it is being dealt with.
Paragraph 4 extends the commissioner's powers to require information and documents to be supplied to cover the investigation of complaints about family health service and independent providers.
Paragraph 5 makes provision for reports about the investigation of complaints about family health service and independent providers closely following the existing provisions for complaints about health service bodies. Paragraph 7 adds family health service providers to the list of those who are ineligible for appointment as a commissioner.
I make no apology for going through the measures in the Bill in some technical detail because, although it is uncontroversial, it is fairly complex in its way. I have tried to give a thorough and businesslike review of the Bill's detailed provisions. It is an important measure and one which I have great pleasure in bringing to the House.
It is also a fitting occasion for us to set on record our appreciation of the work done by the health service commissioner and to look forward to the extension of his role. It is a role that will be brought to hear for the benefit of the patients. I believe that the measured way in which the Bill is drafted will be found to be for the benefit of not only patients but all who work in the service.
§ Mr. Henry McLeish (Fife, Central)
I acknowledge the 858 Minister's comments about the health service commissioner, Mr. Reid. The House will agree that the work that has been done so far has been excellent. He retains independence and impartiality. I hope that, as the Minister suggested, the new powers will be used with the same wisdom as were the previous powers.
It is important to state at the outset that we welcome the Bill. We embrace its principles and support its ideas but we believe that it can be strengthened in Committee. We shall wait for it to go into Committee before discussing strengthening measures.
While I praise the health service commissioner, it is also important to quote his words from his third annual report, for 1994-95, in which he states:
aspirations about more effective complaints handling are hot air. They need now to be matched by performance.While progress has been made, the Government would agree that we could make more progress. Clearly, the commissioner shares that aspiration.
It is also right to pinpoint the fact that this is all about complaints procedure and the rights of patients. It is also about a service that needs to be responsive, accessible and, as the Minister rightly said, accountable. It is important to stress that we owe it to the professionals in the service to have a fair system. Part of any complaints procedure is the worries, fears and concerns that professionals have, especially if investigations take place over a lengthy period. For all those reasons, this is an important debate.
The Bill builds on the Medical (Professional Performance) Act 1995 which, in its way, extended the competencies of the General Medical Council into new areas of performance. That is in the patient's interest. The Bill complements the 1995 Act and goes a great deal further in terms of complaints procedure.
I endorse the Minister's comments about the new procedures that will be implemented in April 1996. I share the concerns of some people that the timetable may be too tight, but we need ambitious timetables if we are to make progress. Obviously, the Government will want to implement the measures with sensitivity and take on board some of the criticisms made by some health groups. The two-stage process, which will be complemented by the new work of the health service commissioner, will help the whole process. There is nothing better than a set of procedures that gain the confidence of patients and professionals and, at the end of the day, improve what is now an important part of the changing face of the health service.
The Minister also pinpointed the important areas into which the jurisdiction of the commissioner has been extended. We welcome the measures on clinical judgment. That is an important development. From the comments so far by the commissioner and others, including the British Medical Association, that will have to be approached very cautiously indeed because while huge sensitivities govern the activities of professionals, there is a great number of complaints about clinical judgment.
We welcome the fact that the commissioner's jurisdiction has been extended to family health service practitioners, whether GPs, dentists, pharmacists or optometrists. That is important and brings consistency to the application of his work. 859 The fact that the commissioner's jurisdiction will be extended formally to independent providers is also important. As the amount of money flowing into the private sector increases, it is vital that NHS patients using private sector facilities are covered by the ombudsman. We shall look into that in much more detail in Committee and explore how it will work. The proposals build on the three-step complaints procedure, but the first two steps do not exist with private health care. If NHS patients are to be part of that process, we must ensure that we know what is happening in private hospitals. Vital public resources now go into those hospitals through the Government's reforms and it is crucial that we understand what is happening.
The Minister rightly pointed out that these proposals are built on some substantial reports, including those of the Select Committee on the Parliamentary Commissioner for Administration and the Wilson review, which started in 1993 and has come up with proposals for a two-stage complaints procedure to begin in 1996. That review flags up the new powers that have been given to the commissioner.
The BMA and others feel that it is important for the ombudsman to deal with the question of clinical judgment and they have expressed a number of genuine concerns. Labour Committee members are concerned about inconsistency in the jurisdictions. In terms of maladministration, the merits of a decision taken in this process cannot be the subject of an investigation but, in terms of clinical judgment, that concern is waived and the commissioner can look at process and clinical judgment.
§ Mr. McLeish
The Minister nods. We may want to see whether the commissioner's responsibilities could be extended fairly and squarely to administration and clinical judgment.
§ Mr. Malone
I am grateful to the hon. Gentleman for his support for the Bill, on which there is cross-party unity in principle.
On the hon. Gentleman's specific point, he will be interested to read the paper published by the commissioner, which runs to some 70 paragraphs and sets out in detail how he proposes to tackle those matters. That paper will form part of the debate in Committee, as it sets out most of the commissioner's thinking.
§ Mr. McLeish
The Minister makes a fair point. We shall read the paper with interest, and will make a stab at reading it all before Committee stage. There must be consistency in any extension of jurisdiction and I shall read the commissioner's comments.
May I deal with the first two stages of the complaints procedure? Stage 2 of the new procedure has an interface with the commissioner's role. The public, as patients and family representatives, are concerned about impartiality. At stage 2 of the complaints procedure, a non-executive director of a trust, for example, will be instrumental in screening a complaint to decide whether a panel should be set up to investigate it further. Although the commissioner will expect normal procedures to have been exhausted before he enters the frame, he has the ability to override those and enter the complaints procedure at an 860 earlier stage. The Minister can ensure that public fears about partiality are allayed by going beyond having a non-executive director of a trust, for instance, as the key person who screens a complaint and decides whether it should go further. He must clear up any confusion that might arise if the commissioner decides to enter early into the complaints procedure rather than wait until all normal procedures have been exhausted. Clarity is the issue and I hope that the Minister who winds up will deal with that point.
The private sector's inclusion in the complaints procedure is an interesting development. We agree that there should be fairness throughout the system in relation to NHS patients. I imagine that, apart from a tiny minority of people, complainants will be NHS patients. Are we to believe, then, that the commissioner will have jurisdiction over those NHS patients? Whether they are treated in a private hospital through private health care insurance or because they have been referred by a fundholder or district health authority, they should be covered by the health service commissioner's extended jurisdiction. It would be a fundamental change if everyone were included in that extension. I hope that the Minister, who is writing feverishly, is responding at least mentally to my comments.
The complaints procedure in the NHS is a three-step process but, in private provision, two of those steps do not exist. In Committee, we shall seek to find out how complaints are processed in the private sector. There is an important interface between private sector patients and patients referred to private hospitals by the national health service. If the Minister's assurance that NHS patients will be covered by this measure is to be taken at face value, will he assure us that virtually everyone in Britain with access to independent provision will be covered? Will the Minister clarify that point when he winds up?
We must ensure that there is no confusion in terms of the patients charter and targets for accident and emergency and ambulance provision. Some people say that the new system should clarify current procedures, be effective and provide quality and fairness. Given the interface between the new procedures, we must avoid problems with existing Government targets and standards.
Professionals in any walk of life find change difficult to accept. Those in the national health service are no different. Any complaints procedure must generate trust and confidence and, at this stage in the development of the NHS, transparency is vital. Constituents who complain to me about the health service are often as concerned about the process and how they are treated as they are about the issue about which they wish to complain. That shows that, within any organisation, the culture is crucial. As the Government move towards implementing the new proposals, including extending the commissioner's jurisdiction, the issues of trust, confidence, transparency and accountability will become front-line issues for the public. We want to avoid confusion and delay, and the commissioner is concerned about the time that inquiries take. It is therefore important that we look closely at that matter.
As we have argued before, any procedure must he about quality. People will never be 100 per cent. satisfied and the rising volume of complaints within the NHS shows that we shall not satisfy huge numbers of people. Ultimately, the system must he not only fair in its application but seen to be fair. 861 The commissioner, Mr. Reid, made a vital comment when he said, in an important paragraph:
The best way to deal with a complaint is to handle it quickly, politely and effectively at local level.The Minister said that earlier, and I endorse that. Mr. Reid continued:
I would be the first to applaud if the new complaints procedures reduced the number of complaints which had to come to my office. The effective involvement of lay persons as well as professionals in complaints arrangements locally should generate greater confidence in the objectivity and rigour of an internal investigation. It will help if staff in all professions look upon complaints not as a personal affront but as a valuable contribution to audit and to the improvement of service.That paragraph contains several thoughts. First, Mr. Reid wants problems to be dealt with locally and effectively solved. That is what we should like. Secondly, he emphasises the crucial fact that, in a complaints procedure, people should be treated with civility and politeness. Far too often, the way in which people are treated is what generates aggravation, and that is often unnecessary.
I know that the Government and the Opposition cannot build that consideration into the culture of the NHS from the centre. Professionals owe it to patients to act with their best judgment, but it requires a commitment from Government to ensure that the complaints procedure is properly resourced and is applied consistently throughout the country. That will inform the confidence of professionals, which in turn will help the patient.
Last year, 90,000 people decided to write about their treatment in the national health service. Complaints to the commissioner have increased by nearly 28 per cent. in one year, to 1,782. Unfortunately, we are on a rising curve of complaints in the service. As the commissioner said, that does not necessarily mean that there are more problems in the national health service; it may mean that more people are aware that they can complain. That strikes at the heart of another consideration—the size of the NHS, and the need, in such a large organisation, for access points so that people may use the service complaints procedure.
The system should be simple for people to use. People need to know that their concerns will be treated sensibly by the professionals involved. However, one of the problems that the Government's reforms in procedures might involve is the issue of how the managers police the professionals in the NHS.
I return to the stage 2 process, identified earlier. I hope that the Minister accepts that it cannot be right to leave it entirely to a non-executive director of the NHS, in the instance that I quoted, to decide whether someone's complaint goes further than it currently does. Independent observers, community health councils and consumer councils are aware of the sensitivities in the NHS, but they want their fears allayed. The concerns of patients must be treated with the utmost seriousness. I hope that the Minister, when he replies, will be able to tell us that in Committee we may consider widening that stage 2 process, because it interfaces directly with the commissioner's role.
That leads me to the question of what role the community health councils will play in the procedure. In a system that will have been significantly changed, we shall need organisations with an advocacy role; organisations that are able to advise independently and, at 862 each local level, organisations that can monitor objectively and feed that information back into the system for the benefit of all.
A readily accessible, understanding system is required. Without mentioning the community health councils, it seems to me that the Government have a vehicle that might be substantially improved in relation to the patient complaints procedure. I hope that, in Committee, we shall be able to consider ways in which those organisations might be better deployed in the process.
I have mentioned the perception of fairness. We all have a heavy responsibility to ensure that people consider the system to be fair. I believe that, in Committee, we must carefully consider ways in which to achieve a balance. I reiterate that we want to protect professionals, but the system must be transparent and accountable. It is crucial for patients to be able to obtain redress if the treatment is not what they believe that it should be.
An issue that affects the complaints procedure is the increasing fragmentation of the national health service. In some respects there has been no particular acrimony in the debate, and I do not intend to start any on that issue.
§ Mr. McLeish
My comments do not cover some of the comments by my hon. Friend the Member for Wakefield (Mr. Hinchliffe), and that is healthy for democracy.
The increasing fragmentation of the NHS makes it more vital that complaints processes are simple and effective. Many organisations are worried about the uncertainty created by the reforms. The fact that more confusion and uncertainty exist, and that more paper is being pushed around than previously, does not help us to create a simplified complaints procedure.
I urge the Government to be aware, when we speak about resourcing those changes without extra funding, that obviously the funding will come from somewhere. It is important for the Government to remember that we cannot proceed with substantial reforms in complaints procedures without adequate resourcing, adequate energy and adequate commitment from the Government. Those are vital. That does not require a specific answer, but the Government must acknowledge the problems that lie ahead.
The other crucial issue is consistency throughout the country. The commissioner made some comments about the way in which complaints are handled throughout the regions. In the Health Service Journal on 13 April 1995, he was interviewed by a Mr. Matthew Limb, who says:
One area Mr. Reid has earmarked for further investigation is what he calls the 'mystifying variety' in complaints handling from region to region …In the former Oxford region in 1993-94, for example, there was only one formal investigation from a total of 4,268 complaints.By contrast, in the former North Western region, which received 5.338 complaints, there were 66 independent committee inquiries.Mr. Reid accepts that the discrepancies are 'very remarkable'… 'How they had exercised that discretion is not always explained and that is unsatisfactory,' he says.The Government should be aware, not only that there is a general issue of a new complaints procedure and access to it, but that certain authorities are not doing as well as others in achieving effective outcomes of the complaints procedure. The systems may differ widely, and that must be acknowledged, but, wherever people live, 863 they should have the same access to a fair system, regardless of the circumstances of the local health service. The Government should take that issue seriously.
I accepted, and I believe I agreed with the Minister, that the time scale is ambitious. However, we must ensure that we get it right. I welcome the fact that the commissioner has published that information document on what he will do, but the implementation of his proposals will probably coincide, in April 1996, with implementation of the wider complaints procedure. I urge the Minister not to dismiss some of the criticisms that are being made. He should keep on trying, but ensure that every possible area is explored, so that the complaints procedure, when introduced, serves the purposes that it is intended to serve.
My final comments are about my experience as a local Member of Parliament. I am sure that the Minister has shared that. Tragically, when a Member of Parliament receives complaints from constituents, it is often at the most sensitive time for any family. It may involve a death or serious accident. It may be a minor affair, but nevertheless it generates real passions—strong feelings in families, and often patients. Communication matters at such a time. Every professional must be able to communicate to patients what is going on.
If communication were qualitatively improved, it would prevent many complaints reaching a Member of Parliament's office, a complaints procedure or the ombudsman. I do not know how that may be achieved, but we should send a loud message from the House to everyone involved in the process that, in spite of the pressures under which they may operate, those are human beings whom we are dealing with. Sensitivity is critical in any service but, as I tell my constituents, it is a two-way process. Things are said in the heat of passion or bereavement, but professionals are human as well. We can legislate all we want, but unless patients and professionals have a common goal, the system cannot succeed. Self-regulation carries a tremendous responsibility. Independent advice is needed, but we also want the whole process to be successful. If there is good will, a commitment by Government and understanding on the part of professionals, the new process can work.
I look forward to the Committee stage. I hope and believe that we can improve the Bill. If the Opposition have been generous this evening in embracing the Bill, I hope that the Minister will be equally generous in Committee in confronting and accepting common sense and logic.
§ Mr. James Pawsey (Rugby and Kenilworth)
I congratulate the hon. Member for Fife, Central (Mr. McLeish) on many of his points. He was particularly right to emphasise the importance of communication. In many cases that came before the Select Committee, poor communication was the essence of the complaint. My hon. Friend the Minister referred to "Gardener's Question Time". For a moment, I thought that a significant concession had been made to my hon. Friend the Member for Reigate (Sir G. Gardiner), and that his robust views on Europe had at last been recognised by the 864 granting of his own question time. I was disappointed to realise that my hon. Friend's reference was to a radio programme, which I thought had been transferred to Classic FM.
My hon. Friend the Minister made a thoughtful speech. If I am fortunate enough to serve on the Committee, I will look forward to developing many of the themes that my hon. Friend outlined.
I welcome the Bill, which is in many ways a tribute to the hard work of the Select Committee on the Parliamentary Commissioner for Administration. The Committee's recommendations have overwhelmingly been accepted and are incorporated in the Bill. The Committee is playing an increasingly important role in the national health service and in the resolution of complaints. I am pleased that several members of the Select Committee are present, and I have no doubt that we shall hear from them. I was delighted to hear the hon. Member for Fife, Central say that the Bill will enjoy the support of Labour Members. I believe that it will have the support of right hon. and hon. Members in all parts of the House.
§ Mr. David Nicholson (Taunton)
My hon. Friend referred to communication and the work of the Select Committee. Does he agree that the Committee sees some of the worst cases that come before the Parliamentary Commissioner—some of which represent the most appalling treatment of extremely sick and sometimes elderly people in hospital through maladministration or mismanagement? Does my hon. Friend agree that it would be a good thing if more people knew of their right of complaint to the Parliamentary Commissioner and that everyone who works in the health service knew of that right? That might produce improvements, which would avoid dreadful cases coming before the Select Committee.
§ Mr. Pawsey
The House will understand why my hon. Friend makes such an outstanding contribution to the Select Committee's work. He is right in all that he says. It is necessary for more members of the public to understand the complaints machinery. I endorse my hon. Friend's points.
The post of health service commissioner was established in 1973, and it is held by the person who is also the Parliamentary Commissioner for Administration—a case of two commissioners in one body. The Bill's background is the existing NHS procedure, which the Committee believes is
designed for the convenience of the providers of the service rather than that of complainants.The citizens charter task force stated:
Complaints systems should be simple to understand and use … Procedures, where possible, should be consistent across different parts of an organisation and should cover the whole organisation.The Select Committee argued that the NHS
falls woefully short of that standard.The patients charter maintains:
Patients must always come first.The charter has heightened expectations that may not always be realised. The public do not always get that which they have a right to expect. The Select Committee noted long delays in dealing with complaints, grudging apologies and general inadequacies that take a great deal of overcoming. Complaints are a benchmark of service that often identify poorly trained staff or bad management. 865 Complaints can and should improve service, and there ought to be changes to the philosophy of protecting one's own. From that reality of the NHS complaints procedure. the Select Committee and Professor Wilson recommended a comprehensive complaints system. As my hon. Friend the Minister said, that will be introduced in April next year.
The health service commissioner is established as the independent appeal mechanism above the health service's internal system. The commissioner's reports do much to improve and validate the internal system. In 1994-95, 91 per cent. of complaints to the commissioner were upheld. Even today the Select Committee still finds evidence of gross delays and failures in handling complaints—that, after procedures were introduced in line with the patients charter. The Bill will do much to improve complaints handling.
Currently, the commissioner can investigate complaints where he feels that maladministration has occurred and the complaint falls within his jurisdiction. As we heard this afternoon, that is unsatisfactory because many areas of the health service cannot be subject to the ombudsman's scrutiny as they are outside his jurisdiction. The Bill remedies that defect and represents a major step forward in the treatment of NHS complaints.
Clauses 1 and 2 add family health providers to the commissioner's jurisdiction. They include general practitioners, community dentists, opticians and pharmacists. The Select Committee maintains:
The current exclusions deprive the public of a right considered necessary in all other sections of the NHS. We believe this should be changed.That important and far-reaching recommendation was endorsed by the Wilson report on NHS complaints procedures. The principal contact that most of the public have with the health service is through their GP, dentist or optician. It seems strange that those have so long been outside the ombudsman's reach. My only concern about their inclusion, which may be shared by some of my hon. Friends, is the great and rapid expansion in the number of complaints that are likely to reach the commissioner. When the public discover their new and necessary right, there will be a flood of complaints. In the early days, they may not be dealt with as expeditiously as we would wish. I will return to that warning note later.
The Bill also enables the ombudsman to investigate complaints about family health services, their staff or those who have been given delegated powers. As with all complaints, the complainant should first exhaust the new NHS complaints procedure.
The second, and perhaps the most controversial area to be added to the commissioner's jurisdiction, is action resulting from the exercise of clinical judgment by doctors and other health professionals, when they provide services in or for the national health service. The Select Committee is convinced that a lay element must be introduced into any clinical complaints procedure. That will certainly help to convince members of the public that the procedure is both fair and impartial.
Doubtless, the Standing Committee that considers the Bill will wish to decide how those lay members will be appointed, and what their qualifications should be. I believe that this will be a key matter and that the lay members will have an important role. I believe, therefore, that such appointments should be carefully considered.
866 The ombudsman has powers to obtain advice from any person who is appropriately qualified, and who will assist him in his investigations. That is particularly important in matters relating to clinical judgment, when the medical evidence may be very technical and more controversial than is usual. Those giving such advice can be paid fees or allowances as determined by the ombudsman, but by agreement with the Treasury. I hope that the Treasury will be forthcoming, because when the ombudsman's powers are widened, as envisaged in the Bill, that professional advice will be an absolute necessity.
I repeat that I am concerned about the impact that the Bill will have on the commissioner's work load. From my constituency experience, I know how many people come to my surgery or write to me to express their concern about their GP, or the way in which they—or, more usually, a relative—were treated in hospital. The Wilson committee urged the introduction of clinical judgment to the health service commissioner's remit, and when the Select Committee referred to the issue in the sixth report of Session 1993-94, it concluded that the extension was necessary.
An important by-product of the reforms may he a reduction in medico-legal cases. I believe that the public will soon come to realise that justice can be found more easily, and certainly more cheaply, by having recourse to the ombudsman than by going to the courts.
The changes contained in the Bill will have enormous implications for the NHS. Complaints about NHS care, wherever it is delivered, will become potentially subject to the scrutiny of an independent and impartial ombudsman. That constitutes both a major and a beneficial change.
I have little doubt that the two reforms will bring great changes, both to the work load and to the office of the health service commissioner. The reforms will improve the NHS, because complaints are "jewels to be treasured", as one witness said when examined by the Select Committee. I suspect that those two measures will uncover, if not a king's ransom in jewellery, certainly that of a duchess. [Interruption.] As ever, my hon. Friend the Minister shows the speed of his wit.
We should remember that, in the majority of cases, the ombudsman will not investigate complaints until the health service's procedures have been completed by the complainant. Incidentally, NHS staff may use the complaints machinery if they believe that they have suffered injustice as a result of the procedures operated by health service bodies.
As my hon. Friend the Minister said earlier, the commissioner can pass information arising from his investigations to appropriate regulatory authorities. This should mean, for example, that when a doctor or a surgeon has an infectious disease, that information can be given to a professional body or to his employers. The reason for this is that the infected person is likely to constitute a threat to the health and safety of patients. In all such cases, the ombudsman has a duty to inform the relevant person that such information has been passed to a third party.
All the proposals will significantly change the office of the health service commissioner, and will, as I have mentioned, substantially add to his work load. According to the explanatory memorandum, the cost of the changes will he about £5 million in the first year, rising to £6.5 million, in real terms, in subsequent years. That 867 seems to me to be a relatively small amount for the enormous burden of work that I believe will result. I hope that that sum will prove adequate for the reforms, which are the most radical since the office of commissioner was established in 1973. I am sure that the Select Committee will keep a watchful eye on finances, because it is not a job that anyone should try to do on the cheap if public confidence in the commissioner is to be maintained.
§ Sir Dudley Smith (Warwick and Leamington)
My hon. Friend has raised the point that the population as a whole has a high level of trust in the health service commissioner, as opposed to any internal inquiry, however honourable. In those circumstances, it is important, as the Bill spells out, that there should be the opportunity to take further action after an internal inquiry. The essence of the Bill is very democratic and therefore it should not be underfunded. Sacrifices should be made in other directions rather than underfunding the health service commissioner.
§ Mr. Pawsey
My hon. Friend makes a powerful point. I am sure that the House and the Standing Committee will take careful note of what he has said. The Select Committee, some months ago, took evidence from one of the Warwickshire health authorities about a case from his constituency, so my hon. Friend is knowledgeable about those matters.
The Bill suggests that approximately 130 or 140 extra posts will be required to discharge the new duties. That explosion of new staff will pose a challenge to the ombudsman. Certain of those posts will be filled by medical staff able to provide advice on complaints relating to hospital specialities and, separately, on general medical services. My predecessor, Sir Anthony Buck, when he was Chairman, used to remind the Committee that justice deferred is justice denied. Therefore, it is essential that the new staff are trained as quickly as possible to deal with the expected avalanche of cases. The training must be thorough and comprehensive, as I believe the hon. Member for Pembroke (Mr. Ainger) mentioned.
The need for new staff to come on stream quickly is underlined by the fact that, in 1994-95, the time taken to complete an investigation was almost 60 weeks—a figure that compares unfavourably with 45 weeks in 1991-92. The principal reason for that increase in investigation time was the growth in the number of cases received by the commissioner's office. The number went up from 1,112 in 1989-90 to 2,226 in 1994-95. If, as a result of the reforms, the number of complaints increases to the degree that I envisage, that will substantially increase the work load of the ombudsman's office.
I was pleased that other recommendations made by the Select Committee have been accepted. For example, the commissioner will now present his reports direct to Parliament, rather than to the Secretary of State for Health. That will help to underline the commissioner's total independence from Government.
§ Mr. Pawsey
I would be delighted to give way to my hon. Friend, who is one of the hardest-working members of the Select Committee. I would welcome his contribution.
§ Mr. Hargreaves
My hon. Friend is too kind. Does he agree that the Select Committee, as well as the Standing Committee which will consider the Bill, should he only too well aware and sensitive of the extra time that will be involved when the clinical element is included in the investigative work of the health commissioner?
§ Mr. Pawsey
My hon. Friend makes a strong point. The Select Committee will keep a watchful eye on the time involved, and I hope that the Standing Committee will also give some consideration to it.
Currently, the Select Committee uses the reports of the ombudsman as the basis for its work. That procedure will continue. The Committee may well decide to take evidence from, for example. the family health services or indeed other independent providers where they provide services under arrangements made with various health authorities.
The ombudsman and the Select Committee are moving into uncharted waters with the two additions to existing powers. The specialised areas involved are likely to be highly technical and complicated, and they will require a careful introduction—the very point made by my hon. Friend the Member for Birmingham, Hall Green (Mr. Hargreaves). I am pleased and reassured that Mr. William Reid, the current ombudsman, will be overseeing matters. He is careful, prudent and knowledgeable and has acquired enormous expertise in the administration of his high office. Those qualities will be needed to the full when the Bill is enacted. The avalanche of work that I foresee may, at first, be slow in coming, but come it will.
I acknowledge that resources have always been adequate for the efficient discharge of the ombudsman's duties. He has not had cause to complain about them. The reforms are designed to provide a comprehensive complaints procedure for the NHS in order to make it work even better and to give an improved and more reliable service to patients. Those are high ideals. I recommend the Bill to the House.
§ Mr. David Hinchliffe (Wakefield)
I am conscious of the Christmas spirit in the Chamber, so I do not want to be unduly critical of the Bill.
I welcome the broad ideas behind the Bill. My particular concern—I am sorry that the Minister left the Chamber as soon as I stood up—relates to the tact that I do not believe that the Bill addresses some of the weaknesses in what the Government have termed as stages l and 2 of the complaints procedure. I hope that the dialogue in Standing Committee will cover some of the wider points that have not been picked up by Conservative Members who have spoken in the debate.
In a debate on the role of the health service commissioner, it is particularly important to consider the implications of the changes to the health service as a result of the National Health Service and Community Care Act 1990. That Act fundamentally changed the procedures that must be followed by individuals who wish to complain about their treatment by the NHS.
Although the Bill relates to complaints, I should like to put it on record that, despite what the Government have done to the NHS—I am as critical as anyone else of their changes—the vast majority of people in my area receive 869 a reasonably decent response from it. Today, I do not want to appear critical of those who try to give a reasonable service—GPs, nurses, hospital doctors, consultants or whoever.
§ Mrs. Peacock
I agree with the hon. Gentleman that, generally, we all get an extremely good service from the NHS. About six weeks ago, I was taken to the accident and emergency department of the hon. Gentleman's local hospital on a Sunday evening after an accident, and I received excellent care. I received it not, as the hon. Gentleman might think, because of who I am—no one knew who I was; I was just another casualty brought in on a Sunday evening.
§ Mr. Hinchliffe
My worry is that the hon. Lady might not have had such good service had the hospital known who she was.
We need to evaluate stages 1 and 2 of the complaints process before we consider in detail what is contained in the Bill. I was struck that the Minister used the word "maze" when describing what the public face when they want to make a complaint. As a result of the changes—or the reforms, as the Government describe them—in the NHS as a result of the 1990 Act, the simple fact is that the public are baffled about where they should go when they have a complaint about the NHS.
In my area, we have a community health trust and a community health council. If I were a betting man, I would wager that 99 per cent. of the local people do not know the difference between that trust and the council. They must understand those subtle differences, however, if they wish to make a complaint of whatever nature about the NHS. The purchaser-provider split introduced under the 1990 Act has confused vast numbers of people about who is responsible for what when they want to make a complaint.
As an example of such confusion, I should like to cite the case of a young lady in her late 20s, who came to see me in September. She had a complaint about the circumstances that led up to the surgical removal of her right breast. I felt that that young lady had a justified, serious complaint about the manner in which she had been treated by various elements of the NHS. Her complaint related to the role of the GP, and his initial diagnosis, when she consulted him about a lump in her right breast. Her complaint also related to the role and diagnosis of the hospital consultant; the seven-week delay before she was given a mammogram; and the delay before she received surgery for a serious condition. She also had cause to complain about the lack of proper follow-up arrangements provided by the community health trust, which is responsible for the provision of district nursing services, on her discharge home.
In the circumstances, and given the involvement of different elements of the new NHS, I thought it was appropriate to write one letter to the purchaser of the services. I expected to receive some assurance that a proper investigation would be carried out. I wrote to the purchaser and set out the young lady's complaints in detail.
In reply, the health authority said that it assumed that I had made representations to the various other elements of the NHS involved. That meant that I had to write separate letters to the hospital trust responsible for the treatment at hospital; the health authority about the role of the GP— 870 the authority now undertakes the role of the family health services authority; and the community health trust concerning the lack of follow-up district nursing services. The letters were sent and the health authority advised me that the lady was out of time in lodging a complaint against her general practitioner because the normal limit of 13 weeks had been exceeded.
The woman had consulted her doctor in 1993. By the time that the process had been completed, there was talk of an operation in September 1994. She was excluded from making a complaint against her GP, because of the time taken by hospital diagnosis and subsequent treatment. Surely that was profoundly unfair. I make no judgment on whether the GP was right or wrong, because that is not my role. I am not an expert clinician. At face value, however, I feel that the woman had reasonable grounds for concern about the way in which she had been treated.
I do not know whether the Government have considered the impact of the internal market within the health service on the work load of Members. Having been in this place since 1987, I have seen a marked increase in the work that I have to undertake in dealing with complaints about the national health service. I could make a political point, and say that my increased work load is the result of the internal market. It is clear that it has more than duplicated the agencies to which we have to write as Members to establish on behalf of our constituents whether they have had proper treatment within the NHS.
In the case to which I referred, I had to write two letters to the district health authority, one to the community health council, one to the hospital trust and one to the community trust. I wrote five letters on the back of one specific complaint. In addition, there was correspondence with the constituent and her solicitor.
I have had experience of similar cases where the local authority has been involved. In some of those cases, there has been the issue of community care—in other words, a person has been discharged into the community, and the social services have been involved. The Government must be aware that the complaints procedures arising from the implementation of the National Health Service and Community Care Act 1990 have resulted in a huge amount of additional work. That would be unnecessary if we introduced a clearer and more sensible local NHS complaints system.
§ Mr. Hargreaves
I, too, have noticed a huge increase in the NHS work load that results from my mailbag. I am sure that other hon. Members have shared the same experience.
I return to the difficulties that were experienced by the hon. Gentleman's constituent as a result of a mammogram. A close member of my family went through the same experience slightly more than a year and a half ago. There were exactly the same problems. It is my impression, however, that the Bill will enable the commissioner to examine the sequence of events from beginning to end, and to investigate it thoroughly and properly.
§ Mr. Deputy Speaker (Sir Geoffrey Lofthouse)
Order. We are moving away from the Bill. The hon. Member for Wakefield (Mr. Hinchliffe) should confine his remarks to the Bill.
§ Mr. Hinchliffe
In a sense, Mr. Deputy Speaker, I do not disagree with the hon. Member for Birmingham, Hall Green (Mr. Hargreaves). I am concerned that the Bill will not unravel the earlier stages of complaints. It seems that we are tackling the problem backwards rather than forwards.
If the Government were to consider establishing a one-shot, one-stop, complaints system as a first stage, as opposed to continuing with the various elements of the present complaints system, the huge increase in demand for the ombudsman's involvement might be reduced. In a sense, if complaints reach the ombudsman, the system has failed. If people are still aggrieved at that stage, it would seem that the system has failed. The system should allow people to receive satisfaction earlier, especially when serious complaints are made of the sort that I have described, as the result of local investigation.
I am concerned about self-investigation. I hear complaints about the police investigating themselves. Surely it is reasonable for people to think that it is wrong that a hospital trust should effectively investigate itself. The same applies to a health authority. I should like to see complaints procedures tied in much more to local level, and simplified at that level. If my hon. Friend the Member for Fife, Central (Mr. McLeish), the Opposition spokesman, wishes in some ways to reduce expenditure on the health service, tidying the complaints procedure would lead to a more effective use of scarce resources within the NHS.
One of the consequences of the 1990 Act is an increase in buck-passing when there are complaints within the NHS. There is a "not me, guy" attitude. It seems to be, "It is somebody else's responsibility, not mine." I have noted the attitude on several occasions in several areas.
I travel by train from Wakefield to King's Cross every week. Since the privatisation of the railways began, the "not me" mentality has developed within the railway system. Instead of an apology for the train being late and acceptance of responsibility by the provider of the service, the company which runs the service from Leeds to King's Cross blames Railtrack. In effect, it says, "Blame Railtrack, it isn't our fault, guv. It's somebody else's fault." That is happening with the NHS.
I am concerned that the Government have not taken account of the way in which various organisations are blaming one another. As I have said, I have seen the process developing within the NHS. The purchaser blames the provider, and the provider says that the purchaser has not provided enough money. There is argument about responsibility.
I do not wish to knock good officials in the local NHS area I represent, but I have received some difficult representations from general practitioners. Some GPs feel that their patients are not receiving proper treatment, because of the two-tier system that has arisen because of fundholding. I am sorry that the Minister has left the Chamber, because my argument relates directly to the commissioner's role in responding to complaints. My constituents' GPs, and some hospital consultants, feel that they are being badly let down by a two-tier system that gives priority treatment to fundholders in various ways.
Behind the scenes, off the record and privately, people say, "That is true. It is not our fault. It is their fault. It is not the hospital's fault, it is the health authority's fault." Or they might say, "It is not the health authority's fault, 872 it is the hospital's fault." The buck is being passed. Perhaps I am not surprised that the Minister has left the Chamber, bearing in mind the fact that it is the fourth time that I have raised the issue. Indeed, it is the fourth time that he has avoided responding to a serious issue.
The commissioner should have the power to carry out detailed examinations in penetrating bureaucratic responses, which lead to agencies within the internal market blaming one another. There is a lack of response, of which I am becoming tired. Serious issues are raised, and my constituents are not receiving the responses they deserve.
Many of the problems that arise in the complaints procedure stem from the fragmentation of the service, and that has arisen with the implementation of the 1990 Act. The Bill does not meet patients' concerns and grievances. The commissioner's role will remain far too limited. Despite the extension of that role, the commissioner will not be able to deal with certain issues. I shall localise my argument by referring to my constituency.
Until the internal market was introduced—I am not sure what the connection is between deterioration in service and the introduction of that market—the primary complaints that I used to receive about the health service in Wakefield turned on the quality of hospital food. It may be that people have become more willing or more prepared to complain since the introduction of the internal market. Unfortunately, we had a serious problem with the quality of hospital food, arising from the cook-chill system, and I have raised that issue several times.
The complaints that I receive about the health service in Wakefield are about basic caring provision at ward level. The picture I get is not of uncaring nurses, as I know many nurses personally; I have neighbours who are nurses, and they are decent people and well motivated. But they are so stretched at ward level that things are going badly wrong. They are under-resourced on the basics, and complaints arise through patients not receiving basic treatment that they have a right to expect.
The reason for that may well be underfunding. 1 query what the role of the ombudsman can be in the Bill where a complaint is about the allocation of resources, because, as you well know, Mr. Deputy Speaker, from representing an adjacent area to my own and one that is within the same health authority area, my area has a major problem arising from the revised resource allocation formula introduced by the Government to allocate resources to individual health authorities.
Percentage-wise, my area has lost more resources than any other health authority in the Yorkshire and northern region. I am conscious that some of the complaints that will end up with the commissioner relate to simple facts about under-resourcing of services at the local level. The commissioner has a role to play in that context. I can see my hon. Friend the Member for Stockport (Ms Coffey), the Whip, looking at me to say that it is about time I sat down—I used to like her.
I shall finish on a key issue for my constituents. The market forces factor introduced in the new resource allocation formula assumes that an area of lower property prices will have cheaper staff. That is nonsense. It assumes that the purchaser will drive down the wages paid by the provider. That is fundamentally wrong.
The other issue of which the commissioner should he aware, and which should he considered in the Bill, is the way in which the standard mortality rate, which is used in 873 the allocation funding formula, penalises the areas where people tend to die younger. The area that you and I represent, Mr. Deputy Speaker, has a history of mining and heavy industry, where people tend not to live as long as those who have not worked quite as hard in other areas or under such difficult working conditions.
We are penalised because we have fewer older people, despite the fact that hospital interventions are precisely the same as they would be with people dying later—
§ Mr. Deputy Speaker
Order. The hon. Gentleman has tried hard to keep within the confines of the Bill. He has not always succeeded, and he is straying from it now.
§ Mr. Hinchliffe
You have been very patient, Mr. Deputy Speaker, and I respect that.
I conclude with a point that needs to be explored, and it relates to the complaints procedures. We should contrast the way in which the Government introduced the Bill, on the role of the commissioner, with the manner in which they treat community health councils—supposedly the patients' voice. My hon. Friend the Member for Fife, Central touched on that issue. In my area, community health councils are denied observer status at the board meetings of the community trust and the hospital trust, which I think is wrong. To the credit of the health authority, they can attend the health authority meetings.
Another point that I wish to raise is the current consultation document issued by the Department of Health on the membership of community health councils. We are in danger of undermining some of the strengths of community health councils by removing from their membership some very good people: experienced members, who have had a role to play in dealing with issues and complaints, which did not then have to go to the health service commissioner, whose role is examined in the Bill.
I notice that the Minister for Health has just walked back in, but I am sure that he will read my speech tomorrow morning and give me a response to some of the issues that I have raised.
The Bill is presented as a step forward, and I concede that. It is an enhancement of the important role of the commissioner. I am saying that the current system is unwieldy and expensive. It duplicates complaints mechanisms, and we must address that. The Bill does not look at some of the fundamental questions that need to be addressed within the NHS complaints procedure.
§ 6.4 pm
§ Mrs. Elizabeth Peacock (Batley and Spen)
As my hon. Friend the Minister for Health said, the Bill is pretty central to the Government's plans to reform the health service, particularly the complaints procedures. I suggest that many of the reforms are much better. In fact, one of the main changes that I welcome is that my local hospital rather than the regional office in Harrogate now holds the contracts for all the consultants who work within the area. That has brought much of the administration and supervision to a local level.
As we heard, the measures in the Bill will be implemented in April 1996. I welcome that. As hon. Members have commented, it is a tight schedule, but I am sure that my hon. Friend will get the Bill through by then and ensure that the necessary training is in place to enable it to proceed.
874 The Bill is most welcome. I suggest that it is overdue. It is a measure that I have long thought we should introduce, to enable constituents, such as my own in Batley and Spen, to have their clinical complaints investigated. I realise that it is a sensitive issue where professionals are concerned; nevertheless, there are times when that facility should be available. For the first time, patients and relatives will be able to complain to the health service ombudsman about all aspects of care and treatment provided by the national health service, and that must be a step forward. The bar which, until now, prevented the ombudsman from investigating complaints about clinical judgments and family health services provided by general practitioners and dentists will be removed. I welcome that, particularly the inclusion of GP and dental services.
We have heard from hon. Members on both sides of the House who have constituents who cannot afford to take the necessary legal action to instigate procedures against members of the medical profession when "accidents" occur and when surgical procedures leave the patient much worse after the surgery than before. In my 12 years in the House, I have had four or five cases where I felt completely helpless. Having exhausted all the procedures, I was not able to assist my constituents. They did not have the necessary finance to go to law to settle their grievances and they feel extremely let down—understandably so—by the NHS.
There was a very sad case where a constituent's mother died unexpectedly after so-called keyhole surgery. My hon. Friend will be aware of the immense work that was done by the late Michael Silverman, who lost his wife through keyhole surgery a few years ago. Tragically, he has now died, but he spent a lot of time and money in the past two or three years raising the issue of keyhole surgery and the necessary training for it. In another case, a constituent of mine, a fit and very active 51-year-old, went into hospital for what appeared to be a straightforward procedure and came out in a wheelchair, with no hope of redress against the health service or the consultants, because there was insufficient money to take legal action. I am not sure precisely how that will he resolved by the Bill and by the commissioner's change of responsibilities, but I hope that it will make a considerable difference, because I have seen at first hand how those families were devastated and their lives changed beyond all recognition. I am sure that their lives were changed in a way that is not easy for us to imagine.
I referred both those cases to Mr. Reid, the parliamentary ombudsman. He is always exceptionally willing to examine cases where we feel as Members of Parliament that we do not have any other avenue to go down, but he could not take action as they were outside the remit of his work. I therefore have a special interest in the Bill, and have looked carefully at what Mr. Reid said in his report. In paragraph 21, he notes that
the vast majority of legal claims for medical injuries or negligence are settled out of court. Where in such cases a complainant receives damages there may be no admission of fault or explanation.That is fine, but I must repeat that many people do not have the resources to reach that stage, given that each medical report that they may need costs £350 or £500. They need that amount to obtain information from the consultant, and another £300 or £400 to obtain, perhaps, X-rays. That is far beyond the means of many of my constituents. 875 In paragraph 22, Mr. Reid goes on to say:
In considering whether to investigate in cases where there may be a remedy in the courts or a right to go to a tribunal, the Ombudsman expects ordinarily to have regard to the broad considerations in paragraph 21",and specifically to one or two others. The ombudsman must also have regard to
whether it is evident that his or her primary concern is to obtain damages (as distinct from an explanation, apology, or action taken to put matters right)".A person may be seeking damages in extreme cases. People whose lives have been ruined and who, at a very young age, find that they cannot work any more may, if they have no other recourse, seek damages if it is felt—and proved—that the consultant had a responsibility to avoid such an outcome. I hope that that aspect will be examined carefully in Committee.
I understand that the health service ombudsman will continue to investigate complaints about the way in which services are provided—failures to provide service, for instance, and maladministration—and that is welcome. I must say that the majority of objections to the way in which a complaint has been handled are resolved after I have taken them to my local health trust, Dewsbury Healthcare NHS trust. Earlier, my hon. Friend the Member for Rugby and Kenilworth (Mr. Pawsey) spoke of a lack of communication; as with so much of our work—certainly mine—the problem here frequently relates to a blockage in the channels of communication that should make people understand exactly what is happening.
I note that the ombudsman will continue to be prevented from investigating complaints about disciplinary and other personnel matters. That is right: such matters should be resolved locally, in the shortest possible time. Consultants and other professionals should not be suspended on full pay for long periods when they are doing no work in the health service.
I believe that the national health service throughout the country takes complaints very seriously. The Dewsbury trust is excellent in that regard, but it cannot always resolve clinical complaints. The only option is for the patient or the family to take legal action, which—as I have said—is extremely expensive.
With respect to the General Medical Council, its various committees and the lay assistants who examine some of the cases, I must say that I am not convinced that the GMC has always had the necessary expertise to decide whether cases should proceed. That certainly applies to the cases that I have taken to the British Medical Association in the past. I feel that it is a bit of a closed shop, and that the Government should examine the position. In my experience, it is almost impossible to surmount the barrier: everyone closes ranks. That cannot be in the best interests of constituents with genuine cases against health authorities.
The latest six-monthly report from the health service commissioner shows that more than 8 million patients were treated in 1993-94, and 40 million were seen as out-patients. Only 1 per cent. registered complaints. Whatever I may say to my hon. Friend the Minister, I feel that we must see those figures in context. We are talking about a very small percentage—probably only a small percentage of that 1 per cent. of complaints represents serious cases in which no resolution could be found.
876 Nevertheless, although a huge number of cases clearly would not be referred to the ombudsman, the cases involved are important to patients and their families. Let me repeat what my hon. Friend the Member for Rugby and Kenilworth said a while ago: we welcome the extra resources that will be put into the service, but I hope that, if extra money—let us call it what it is—is needed in future to ensure that the ombudsman can examine cases referred to him, my hon. Friend the Minister will put pressure on the Treasury in the usual manner to ensure that the service is not curtailed through lack of finance.
§ Mr. Simon Hughes (Southwark and Bermondsey)
There is clearly general agreement that the Bill is a good thing. I join other hon. Members in welcoming it.
In its first report on the national health service complaints system, the Select Committee on the Parliamentary Commissioner for Administration quotes from a document entitled "Complaints Do Matter", produced by the National Association of Health Authorities and Trusts. The document stated:
There is considerable dissatisfaction within the NHS, amongst the health professions and organisations representing patients and also amongst informed opinion, regarding the current arrangements for handling health service complaints. The arrangements are seen as being over-complex, failing to be user-friendly, taking too long, often over-defensive and often failing to give any satisfactory explanation of the conclusion reached.The Select Committee concluded:
The current complaints system in the National Health Service seems designed for the convenience of providers of the service rather than of complainants.That, I think, was very much the general view.
I have never understood the argument—or, rather, I have understood it but have never begun to support it—that the ombudsman should not have the right to investigate complaints relating to clinical practice. If we allow the Police Complaints Authority to investigate the professional job done by the police, it is absurd to say that the core job that is done in the health service cannot also be investigated. It was possible to examine the paperwork, but not to look into whether someone had been seen in the right way or had received the right treatment.
It has taken a long time for us to reach this point—although I note that things have moved quickly since the Select Committee made its recommendation in November 1993, and I pay tribute to it for that. In May 1994, the Wilson report was published. I commend that document: like others, it is very readable and hits the nail on the head. The Select Committee quickly picked up what the report said, and the Government presented proposals in March this year and legislated in November. Once the show was on the road, things moved rapidly. Throughout that time there was uncertainty about whether dealing with clinical complaints would feature in legislation, but we should be grateful that it has. I imagine that the profession felt rather defensive, and may still, but it serves as the servant of the public which must complain on the public's behalf. The purpose of the Bill is to give the lay public the right to make their health service serve them properly.
All of us—no matter how good the health service may be in our localities, and no matter how excellent our hospitals may be—present a succession of complaints 877 when things go wrong. Guy's hospital is in my constituency, and many of my constituents visit St. Thomas's and King's College hospitals. Those are excellent hospitals; they are probably among the best in the country. Nevertheless, things regularly happen that should not happen. The Wilson report sets out the reasons why people want to complain about such things.
Complainants are not normally vindictive; they simply want an acknowledgement that things have gone wrong. They often want an apology from the authorities, an explanation of how the problem can have come about and a report on what has been done so that the mistake does not occur again. Sometimes they want compensation or redress. Sometimes they want punishment, feeling that someone should not be allowed to get away with bad practice, bad supervision and bad management. Often they want to ensure that they are heard. All those are very good reasons.
Like the hon. Member for Batley and Spen (Mrs. Peacock), I think it highly unsatisfactory if the only recourse that people have is the extremely unhelpful process of law. I say that as a lawyer. Taking a medical negligence action through the courts is about the most unsatisfactory form of legal action there can be. If there can be a procedure that, in a known system, deals much more quickly with the matter and does not require people to spend money that they may not have, that is far better.
It is also vital—this will be the merit of the Bill—that everyone knows and can understand the system. The hon. Member for Wakefield (Mr. Hinchliffe) made the point that many people do not know the system at all. They do not know what the proper system is because, in large measure, there is not a proper system in the health service—it is very hit and miss. They may go to see their Member of Parliament, who may write to the chief executive of the trust or the health authority. Normally, something happens. There may or may not be a meeting. It may include only the people involved; but they may have left, so someone else comes. A person who has nothing to do with the incident may be involved. One gets the impression, however—let us not mince words on this—that people look after each other and defend their interests. Often, the reality is that people—if they do become involved—will not say anything about their colleague if that person has messed something up.
That is not the case all the time. The other day, I had occasion to complain about the treatment at St. Thomas's hospital of a relative of constituents of mine. The authorities whom we met said, "We apologise. We should not have behaved like this. The management on the ward was appalling. Various things should never have happened. Your relative was extremely badly looked after." Mercifully, that lady survived and is now being treated in another hospital, where the care and attention that she is given are much better. We must, however, have an impartial system, which is a good thing.
The hon. Member for Batley and Spen cited the past two half-yearly reports and gave examples of some of the ombudsman's cases. In those examples, it is clear that things often go wrong. From those reports—it happens that those were the ones mentioned—it seems that they go wrong in London more often than elsewhere: 18 of the 52 reports involve London-based complaints. There are, I think, still more complaints per head of the population in London than anywhere else. I am sure that Ministers are aware that those are some of the things that the health 878 service needs to sort out. If we have all these resources, it is bizarre that, in the capital city, things go so badly wrong so often.
It is clearly logical, therefore, that the ombudsman's powers will be extended, first, to deal with clinical matters and, secondly, to deal with other parts of thehealthservice—things one's general practitioner, dentist or optician does or does not do. An unsatisfactory, very much "around the houses" system is still in place in relation to getting a GP. Shopping around for a GP, and trying to get another GP if one is struck off a GP's list, is still very hit and miss. That system needs to be reformed, but if we can have one that is fair, independent and speedy, which is important, so much the better.
The previous Chairman of the Select Committee on the Parliamentary Commissioner for Administration reiterated the trite, but true, saying that justice delayed is justice denied. I endorse what he said. It is no good having investigations stretching out over months or years. People want investigations to come to an end. Often they involve a bereavement; often someone has died. People want to be able to wrap up that portion of their experience, which is often extremely unpleasant to recollect and go through. They feel they have to and they want it done quickly.
In addition, I welcome the Bill's two Nolanesque powers of direct intervention. The first—which is in clause 5, I think—is that the ombudsman can shoot through the system: he can say, "I am going to investigate that, no matter where it has got to in the system." That is a good thing. The second is that he can lay reports directly before Parliament—they do not have to go around the health service's hierarchy. That is good, because the ombudsman system works on the strange equilibrium principle that an ombudsman investigates and makes recommendations and that his authority resides in the fact that Parliament will consider his report and, presumably, hit the health service over the head if it does not act properly in response to his report. That odd, inconclusive, historical, constitutional balance often appears in Britain, but, even so, in general terms, it is better—if it is cheaper and quicker—than going to law.
It is even more important that we get this right because we have an undemocratic health service. Yes, we have Ministers at the top, but no one pretends that the local health commission or local health trust are democratic bodies. I argue that they should be. As long as they are not, and as long as all the people who run them are appointed by the Secretary of State for Health, it is even more important that we have a proper complaints system that works. The public cannot sack the management, other than at a general election, which may he a bit of an overreaction if one is trying to deal just with a problem in the local hospital and if one does not necessarily think that the whole of the management should go. In my constituency, people think that the management should not have been there in the first place, but that is a separate issue—one clearly needs to be able to have the best possible form of complaint.
The system fails to do two other things. It does not—this is not intended, but it is worth observing—provide a health service inspectorate. I strongly believe that we need a proper health service inspectorate, as we have in the education service through the Office for Standards in Education, in the Prison Service, and for the social services. There should be a body that can go in—the community health councils do this to an extent, hut they 879 do not necessarily have the clout that a national inspectorate or a federation of community health councils would have. That is part of the missing link in an undemocratic health service.
The last, as it were, ambiguous thing that is left involves the ombudsman's ability to take up a matter where the complaint about the commissioning health authority is in terms of where, for example, it placed a contract and where a relative was treated. The ombudsman has the power to investigate such a matter if it causes, I think the phrase is, "harm to the individual". The individual still lacks the power to complain if a health authority asserts its right to treat the patient in a certain place or in a certain way. This is one of the failures of the present purchaser-provider system, which does not give the customer—the user—real power.
The new system will work if it has the resources. The hon. Member for Batley and Spen, the Chairman of the Select Committee—the hon. Member for Rugby and Kenilworth (Mr. Pawsey)—and the hon. Member for Warwick and Leamington (Sir D. Smith) made it clear that this will not work unless the money is put up front and enough people work for the commissioner to do the job. We do not want a system that results in a queue of cases, such as those waiting for asylum decisions, where a great pile is kept in an office corner because there are not the people to deal with it. That would be unacceptable.
I believe, and the ombudsman floats the idea in his report, that we should have regional ombudsman offices. People relate to the regions of England and to Wales and Scotland, and we should have regional offices in England too.
We should have the power and entitlement to have a stage 2 investigation, and it should not be at the discretion of some senior health service appointee who might arbitrarily decide not to investigate. People should know that they have a complainant's set of charter rights, deadlines and timetables, in the same way as they have patients charter rights and timetables for treatment. I hope that many things will be done to tighten the system slightly. Like the hon. Member for Fife, Central (Mr. McLeish), speaking for the Labour party, I hope that the Minister will be sympathetic. We have been nice to him and said that this is a good Bill and a nice framework. I am sure that, collectively, we can improve it hugely in Committee, go a bit further and fill in the loopholes. I look forward to a constructive Committee stage, good legislation that works on the statute book and an improved complaints system in the near future.
§ Mr. Roger Sims (Chislehurst)
I think that most hon. Members present will be aware that I am a lay member of the General Medical Council and perhaps, in the absence of any clear guidance flowing from the so-called Nolan resolution that we passed a few weeks ago, I should declare an interest in the sense that I receive a modest fee from the GMC in connection with my work as a lay screener, but that is what the fee is for. I am not an advocate for the GMC and, in any event, on this issue, the GMC takes a neutral stance.
Naturally I welcome the Bill for all the reasons that have been explained. As the hon. Member for Fife, Central (Mr. McLeish) said, this Bill and the Medical 880 (Professional Performance) Act 1995 are complementary. Both make doctors more accountable and extend the rights of patients. It is important to be clear that it is the national health service which employs doctors, which requires them to comply with the terms of their contracts and which can take action should doctors not comply with those terms. The General Medical Council's role is to maintain a register of doctors, and no doctor can practise unless he is on it. The GMC lays down standards and ensures that doctors comply with them.
I want to examine the part of the Bill which gives the ombudsman the power to consider clinical judgments. As far as I can see, that expression is not defined either in the Bill or elsewhere. If a doctor sees a patient at his surgery or at the patient's home, my understanding is that the doctor's task will be to consider the patient's symptoms, to question the patient, to take a medical history if he does not already have one, to discover the patient's recent activities and what he has been eating and drinking and to carry out the prodding, poking and pushing which doctors tend to do if there is pain in certain parts of one's anatomy. It is the doctor's job, if he thinks it necessary, to carry out tests or to arrange for those tests to be carried out.
In other words—to use the phrase which the GMC occasionally uses in its correspondence—the doctor is obliged to
put himself in a position in which he can properly assess the patient's condition and the treatment needed.Once that has been done, the doctor must use his clinical judgment to assess the patient's condition and decide upon and implement the appropriate treatment.
If the doctor has not followed the appropriate steps in making the diagnosis, then of course his action or lack of action could cause him to be brought before the local medical services committee, which will decide whether he has complied with his terms of employment. The doctor could also find himself before the GMC, possibly charged with serious professional misconduct. The circumstances will determine whether the doctor finds himself before the MSC, the GMC or both. The important question is whether the doctor has done the right things. If he has taken the necessary preliminary steps, it is for the doctor to make the judgment on diagnosis and appropriate treatment, or on whether to refer the patient to a specialist.
It is fortuitous, Mr. Deputy Speaker, that you happen to be in the Chair. You are perhaps in a better position than many of us to know that medicine is an art as well as a science and that people differ. We are all different and react differently. If you and I, Mr. Deputy Speaker, were to go to our general practitioner with similar symptoms, it may be that we would be found to be suffering from different conditions. Similar conditions may be given the same treatment, but with a different effect on different patients. A combination of symptoms might indicate a whole range of possible conditions.
A few years ago, to give a personal example, I had stomach problems. I shall not regale the House with the details, but suffice it to say that the doctor tried one or two treatments, on a sort of trial-and-error basis, before he decided that the problem was clearly my gall bladder, for which I subsequently had an operation. The symptoms could have indicated several other conditions. There is a lot of publicity at the moment about meningitis, which is a notoriously difficult condition to diagnose. Certain symptoms could easily be the early 881 stages of meningitis, but they could also be all sorts of other things. If all GPs were to send straight to hospital all the patients who presented themselves with symptoms that could develop into meningitis, the hospitals would be overwhelmed, particularly at the moment.
If a doctor has taken the steps that he should take to put himself in a position to make a clinical judgment, then surely that is as much as one can expect of him. It may be that his judgment is wrong, with distressing or even fatal results. However, if he has made his judgment in all good faith, as matters stand now, he would not normally be proceeded against by the GMC. We must bear it in mind that, quite apart from all the circumstances that I have described and the different conditions under which doctors have to make diagnoses, they are human. As in any other walk of life, it is possible for doctors to make mistakes.
I am not saying that the ombudsman should not examine clinical judgments. I am simply concerned that he should not treat harshly a single incident. If that were to happen, it could lead to doctors being ultra-cautious and to their practising defensive medicine, as tends to happen particularly in places such as north America. One of the effects of the Medical (Professional Performance) Act 1995 when it comes into force is that, although I have said that a single incident or misjudgment would not normally make the doctor the subject of consideration for the GMC, a series of similar acts indicating deficient performance could lead to his being brought before the GMC. So if it were found that in a number of instances a doctor's ability to diagnose, or his clinical judgment, were at fault, then he could certainly be brought before the GMC. That is to be welcomed.
I support the purpose of the legislation which is to ensure protection for the public and to add to patients' rights. I am simply anxious that the implementation of this part of the Bill does not so affect the way in which doctors carry out their professional duties that not only they but patients would be the losers.
I welcome clause 11. As my hon. Friend the Minister said in his introduction, it gives the ombudsman the power to notify regulatory agencies such as the GMC of material that his investigators have gathered; material which may not necessarily be disclosed for the purpose of the investigation but which he thinks ought to be looked at for the benefit of patients.
That power, although of course not mandatory, will give the ombudsman discretion, which he does not have at present, to disclose to the GMC information about a doctor when it appears to the ombudsman that there may be a threat to the health or safety of patients. That, like the rest of the Bill, is surely to be welcomed.
§ Mr. Nick Ainger (Pembroke)
The hon. Member for Chislehurst (Mr. Sims) referred to the problems prevailing in the complaints procedures in north America, where massive litigation is going on all the time. I understand that that is one of the main reasons why practitioners there leave the medical profession. It is not because they are found guilty. It is because of the costs of the huge insurance premiums that they have to pay for adequate medical insurance to protect them from litigation. We need to ensure that our national health service complaints 882 procedure stops us from falling into that trap. We need a complaints system that has the confidence not only of patients but of practitioners.
As hon. Members will know, legislation often originates from the direct experiences of their constituents; from people turning up at their surgeries or writing to them and drawing particular problems to their attention. Certainly, I have become interested in the work of the health commissioner because of issues that have been raised directly with me.
Although it has been interesting listening to the debate and to references to Select Committee reports, the Wilson report and so on, I am speaking in the debate because of the personal experiences of my constituents, especially the case of Mrs. Rhoda Quigley, which exemplifies the reason why we must grant the commissioner the right to investigate the clinical judgment of practitioners in the health service.
I shall briefly run through the rather tragic case relating to my late constituent Rhoda Quigley. She was diagnosed as having a serious heart problem and informed that she needed an operation on her mitral heart valve, which was to be performed at the London Chest hospital—some 250 miles from her home in Pembrokeshire. She travelled to the hospital on 24 August 1994 and was immediately admitted. It had been arranged beforehand: she travelled there by an ambulance car provided by the Pembrokeshire NHS trust and was operated on the following day.
Mrs Quigley's family visited her and were concerned that she did not appear to be making much progress following her operation. They were surprised when, on 31 August, they were informed that she was to be discharged on 3 September. They made their concerns known on the ward and to doctors there, but they were assured that Mrs. Quigley would be fit to travel on 3 September. The family inquired as to how she would travel back to Pembrokeshire, bearing in mind the fact that her husband, who had stayed in London with her, had already suffered two strokes and needed a stick to walk. The ward suggested that perhaps she could travel back by rail. The family were, however, well aware of the problems with the rail service, especially west of Swansea, and they decided to drive from Pembrokeshire, pick her up in London and take her back to Pembrokeshire.
While they were driving down the M4 back to Pembrokeshire on 3 September, Mrs. Quigley felt ill and was in pain. Her legs, which were badly swollen, were causing her great discomfort. They stopped at motorway services to purchase some painkillers, which Mrs. Quigley took. A mile after they had rejoined the motorway, Mrs. Quigley died in the back of the family saloon. I am sure that Members appreciate not only the tragedy but the personal involvement of a family when somebody dies—basically—on the hard shoulder of a motorway.
Following that, the family contacted the cardiologist, who explained in three letters why he felt that Mrs. Quigley was in a condition to be discharged. The family remained dissatisfied, not only in relation to her health at the time of discharge, but especially because transport had not been properly arranged to take Mrs. Quigley back home.
The family contacted me in January and I wrote to the chief executive of the Royal Hospitals NHS trust, as well as raising the issue of transport with my local NHS trust. 883 I was assured by my local NHS trust that, in fact, it had no record at all of being contacted by the Royal Hospitals trust or the London Chest hospital in order to provide transport, despite the fact that Mrs. Quigley's family had been told on the ward that that was the case and that the local trust had refused to help by providing an ambulance or any other form of transport.
I received a reply from the chief executive of the Royal Hospitals trust in which he said that he had investigated the complaint, had checked with staff and that the unanimous opinion of the staff was that, at the time, they had felt that Mrs. Quigley was fit to be discharged.
I then referred the case to the health ombudsman and received a letter dated 30 June, in which Mr. Reid stated:
I enclose a booklet which outlines what I can and cannot do. Section 6(b) of the booklet explains that I cannot investigate or question clinical decisions about the care or treatment of a patient.He said that he noted from the trust's letter of 24 May to Mrs. Quigley's daughter, that when
the consultant surgeon saw Mrs. Quigley 48 hours before her discharge, he thought she would be ready to go home shortly after the consultation… As matters stand, I cannot question the doctors' judgments about Mrs. Quigley's medical condition. I believe that this restriction to my powers also prevents me from taking up the matter of Mrs. Quigley's transport.After receiving that letter, I wrote back to the commissioner and pointed out that it would appear from what Mrs. Quigley's family had told me that there were members of staff at the hospital who believed that some form of transport should have been provided. Mr. Reid responded on 8 August, and said:
Even if some members of the nursing staff considered that Mrs. Quigley should have travelled by ambulance, the final decision was for the doctor responsible for her care. That decision was made in the exercise of his clinical judgment, and as such is not investigable by me.That is a very good example of why I think it absolutely essential that the health ombudsman is given the right to investigate clinical judgments. All my constituents want is what they consider a fair and independent inquiry into their concerns. They are not looking for compensation. They want to get the truth about how and why their mother was discharged.
As the hon. Member for Southwark and Bermondsey (Mr. Hughes) said, the reasons why people complain and seek an inquiry are complicated in some ways, yet straightforward. In many cases, they want to put the tragedy behind them. If they do not think that they will get an independent inquiry, they become extremely frustrated and they find it difficult to put the sad memories behind them.
There can be no inquiry into the Quigley case when the Bill becomes an Act because it contains no retrospective element. That is right because if it did, the ombudsman would be inundated by complaints going back many years. However, I hope that his new powers will ensure that the tragedy that Mrs. Quigley's family faced will not be repeated.
I welcome the Bill and I especially welcome the inclusion of a clinical judgment element, but I have some points of concern about training on which I touched in 884 my intervention during the Minister's speech. Staff need to be well acquainted with the new procedures, but there are cost implications. The complaints procedure has three stages and resources will be made available to the ombudsman at stage 3.
If stage 2 in particular is to have the confidence of patients, they must feel confident about the independence of the non-executive directors of the trust or health authority who will act in the screening process. My fear is that because patients may feel that the screening process will be carried out by somebody who has a vested interest in not serving their needs, far more complaints may go through to the ombudsman. People may receive a fair judgment at stage 2, but because there is a question mark over the independence of that stage, the ombudsman's work load may be significantly increased.
I understand, and to an extent welcome the fact, that we want the complaints procedure to be in place as soon as possible. However, the Government have not taken fully into account the training costs between now and April, and after that, or the human resources element. I imagine that, in large trusts, a number of staff would have to be designated to deal with complaints properly; that will have significant cost implications.
The question of clinical judgment does not refer only to the direct treatment of individuals by the hospital, by the GP or by other practitioners, such as dentists and ophthalmic surgeons. Presumably, clinical judgment will now include the discharge from hospital into private residential nursing homes. In many cases, as we know from our surgeries and from debates here, that is an extremely grey area. In the past, the health ombudsman could not address the question of whether it was right that an individual patient should be discharged from hospital or what level of medical and nursing care was required. That was not part of the ombudsman's remit. With the new element of clinical judgment, we may find that many complaints will involve questioning the clinical judgment involved in discharging patients from an NHS hospital into a private nursing home, especially when patients have to pay for that care.
Another worry concerns fundholders; I am not making a contentious point. From reading the Bill, I am not clear whether fundholding decisions in relation to finance will be covered by the ombudsman. If there is no maladministration, the ombudsman cannot become involved, but there are other cases and I quote a recent one in Wales. A GP in the constituency of Montgomery removed a family from his list because they refused to he inoculated. As a number of children were involved, the bonus that the GP would have received from his family health services authority was affected. For three or four days, the family was removed from the doctor's list until pressure was put on for him to put them back on the list. That is an extreme example, but there may he financial decisions by fundholders that relate to clinical judgment. I hope that the Minister will touch on that point because it is not clear whether such financial decisions are covered in the Bill.
I welcome the Bill and I should like to serve on the Standing Committee, Whips willing. As many hon. Members on both sides have said, it is clear that the national health service complaints procedure is not working properly. That causes problems for patients and for practitioners. We need to get the procedure right and I accept that the Bill is a step in the right direction.
§ Mr. Matthew Banks (Southport)
There has been much agreement in the debate, although I had hoped that there might have been slightly less ambiguity from Opposition Front-Bench Members about toughening up and strengthening the Bill—I think that those were the words used by the hon. Member for Fife, Central (Mr. McLeish)—in Committee. The hon. Member for Wakefield (Mr. Hinchliffe), who now speaks from the Back Benches, was a little more robust about some of the changes that he felt should be made. There is ambiguity about the Bill and about a number of other issues, such as GP fundholding and the private finance initiative, which were also touched on in the debate. I wish we knew what amendments Opposition Front-Bench Members intend to table in Committee; it is not entirely clear.
In view of the lateness of the hour, I intend to follow the example of my hon. Friend the Member for Batley and Spen (Mrs. Peacock), who spoke eloquently and with some brevity. Conservative Members believe that the public have a right, as my hon. Friend the Member for Batley and Spen said, to expect that the NHS should be open and accountable to the patients it serves. In that light, the care that patients receive should be based on rights and standards, which have been clearly set out in the patients charter. The new code on openness, introduced in June, ensures that information is made available to the public so that they can make informed choices about their health care.
The Bill will be an extra step in making the NHS truly accountable. Despite the fact that the NHS continues to treat a record number of patients—8 million patients treated and 40 million seen as out-patients in 1993-94—only 1 per cent. of NHS patients have registered complaints.
I would like to place on record my satisfaction with the manner in which the Southport and Formby NHS trust and the community health services trust have dealt with complaints which I and other local people have drawn to their attention.
The Government are right to reform the complaints procedures, and this Bill is going the right way about it. For the first time, patients and relatives will be able to complain to the health service ombudsman about all aspects of the care and treatment provided by the NHS. This will alleviate any suspicion on the part of users of the NHS that their complaints to a range of professional bodies will prove fruitless, because those complaints will now be dealt with independently.
Clauses 1 and 7 of the Bill make it possible for the health service commissioner to investigate complaints arising from the most frequent point of contact between the public and the NHS—GPs, dentists, pharmacists, ophthalmic medical practitioners and optometrists. This is clearly crucial to any attempt to increase accountability within the NHS, while the consequential increase in responsibility and work on the part of the health service commissioner will be offset by the increase in funding envisaged in clause 12. I take due cognisance of the fact that extra costs will be met from within existing resources.
Clause 6 of the Bill, dealing with the exercise of clinical judgment, will allow the commissioner to consider the substance of a complaint about the exercise of clinical judgment, as well as the manner in which it has been handled by the health service. I am pleased to 886 see that the Bill, in the interests of equity, allows those subject to the complaints procedures—the employees of health service bodies themselves—to have exactly the same right as the general public to complain about the way in which the system has treated them.
The independence of the office of the health service commissioner will be strengthened by clause 10, and I am pleased to see that special, annual and other reports on performance functions will be made to the Secretary of State. I am pleased also that copies of those reports will be placed before each House.
I am glad to see that the Bill will incorporate the Mental Welfare Commission for Scotland in the list of bodies which the health service commissioner for Scotland may investigate. This will bring the position in Scotland into line with that in England and Wales. All too often, we are trying to get into line with Scotland, where—in so many respects—things are rather better than here in England.
The Bill makes the health service commissioner the heart of the NHS complaints system. Along with increased responsibilities, the commissioner will continue to investigate complaints about how services are provided, about any failure to provide services and about maladministration. With the provisions of the patients charter, the Bill will lead to improved accountability and openness of NHS services and to an improvement in the standards of health care.
William Reid, the present ombudsman, has said that this is the most significant measure to be introduced in the 22 years in which the post has existed. When one hears such a comment from someone of Mr. Reid's calibre, one should have no doubt whatsoever that we are moving along the right lines.
§ 7.2 pm
§ Dr. Tony Wright (Cannock and Burntwood)
A body called the Citizens Charter Complaints task force laboured mightily, and eventually defined what a complaint was. It said—this is a wonderful phrase—that a complaint was
an expression of dissatisfaction requiring a response".If we had time, we could perhaps reflect on that. None of us likes to have expressions of dissatisfaction requiring a response levelled at us. I suspect that hon. Members like them least of all, which is probably why Members of Parliament are the only remaining public servants who do not have a charter attached to them. We are not required to give a period of time within which we should answer letters. We are not required to be nice to people or to see people. We are not told how we have to behave. We are charter-free. So a certain humility is required when we pronounce upon the expectations that other public services have to discharge. Some hon. Members may say that if people do not like us, they can boot us out. That is true. But looking at Conservative Members, I am struck by the fact that there will be some booting out shortly; not because of individual deficiencies on the whole, but because of guilt by association.
I want to extend a hearty welcome to much of the Bill and to offer genuine congratulations to the Government on moving so firmly, clearly and quickly on it. They have behaved with commendable speed. Their targets for implementation are very ambitious, the central reform of finally separating disciplinary complaints from ordinary complaints is greatly to he welcomed and the ambition of establishing a unified system is essential. 887 I have some questions and queries, and one particular squabble. The Bill is "long overdue". Those are not my words, but those of the British Medical Association. We have known for years that the NHS complaints system has been a disgrace and a mess, and we have done nothing about it. The state of the system was best summarised in the Select Committee on the Parliamentary Commissioner for Administration's 1993–94 report on the health service ombudsman, which said:
The current complaints system in the NHS seems designed for the convenience of the providers of the service rather than that of complainants.It is striking and worth remembering that the handling of complaints has constituted the biggest category of complaints handled by the ombudsman. The complaint-handling system has been at the core of so much that has been wrong.
The Select Committee—of which I am proud to be a member—sees consultants all the time who claim not to have a role in the system, and who claim that there is no need for them to answer people's letters or to see them. We see managers who cannot manage, and other things which give rise to the need for what the Royal College of Nursing called a "culture change".
There is evidence of the failures of the existing independent professional review system, which varies around the country. There is a similar variability in terms of the family health services authorities' service hearings. There are inexplicable variations around the country in how the system works which we have known about for years but done nothing about. That is a scandal and a disgrace—thank goodness reform has at last arrived.
I have some questions about the reform. Why is the House being asked to consider only this Bill, which relates to an amendment to the powers of the health service commissioner, and not a general Bill about the ombudsman himself? This was recommended by the Nolan committee when it considered quangos and the need—as recommended by the Select Committee—to revise the jurisdiction of the ombudsman as a whole. I hoped that the Government would do that, but they have not taken the opportunity to do it in this Bill.
Why is this not a general NHS complaints Bill? The Government's ambition is to create a unified complaints system, and yet we have only a partial Bill which looks only at the role of the commissioner. It seems extraordinary to me that the House will not be able to consider the major elements of the new system, which are to be on the basis of the Hospital Complaints Procedure Act 1985 and the National Health Service Act 1977. The elements of the new complaints system, to which some hon. Members have referred, will not be available for discussion or amendment inside the House because the Government have not come forward with a unified complaints Bill.
Why has there not been at least an inquiry into the important related matters? In particular, why has there been no equivalent investigation into the area of medical negligence, which we know is fraught with difficulties and delay? Is it not crucial that, having had the Wilson inquiry into the complaints system, we now have a parallel and equally urgent inquiry to sort out the mess on the medical negligence side of the system?
888 I was not persuaded by the Minister's answer that the Bill would have a nil cost in the long term. There are substantial costs attached to making this cultural change inside the national health service. We should not apologise for that. I urge the Government to state that they are investing in setting up a good-quality complaints system. That is something worth doing and the Government want to devote resources to it. When I quibble with the Government, it is when they say that those resources must come from other areas of expenditure.
I suggest that in the longer term—indeed, perhaps the longer term has now arrived—we shall have to think about creating a separate, distinct NHS ombudsman rather than one wrapped up inside the larger ombudsman system. If we had had a decent Bill, we could have revised the term. Here we are using a sort of Sunday term "commissioner" when the popular term is "ombudsman". The Select Committee recommended that change and the Government endorsed it, but they have not legislated for it. That opportunity has been missed.
I have some questions about the variability of the stage one procedure. There is a need for consistency around the country. There are worries on that score. I have particular worries about complaints which relate to more than one NHS provider. My hon. Friend the Member for Wakefield (Mr. Hinchliffe) spoke well about that. The fact that the Government have sought to disaggregate the health service into a system of separate bits is in a sense neither here nor there as far as we are concerned today. More important, that fact should not be here or there for the complainant. Complainants should not have to negotiate their way around a divided, fragmented and disaggregated system. There should be a simple point of entry and someone to help them through it.
The Government's interim guidance says that there will be separate, parallel complaints systems because a complaint may refer to different parts of the system. That cannot be satisfactory. It breaks down the unity that we strive for. I also have worries about the screening procedure for stage 2 and about who will do the screening. The non-executive board member will convene the screeners. Quite how that will be done raises all sorts questions that are yet to be resolved.
One major issue which I wish to register and which I hope can be discussed again in Committee is the role of the ombudsman in stage 2 or independent review complaints. When someone make a complaint, it will he examined under the informal first stage. If the chief executive refuses to instigate an independent review panel or stage 2 hearing, the chances are that the complainant will then appeal. The appellate court will he the ombudsman. The ombudsman will face a deluge of appeals against refusal of a stage 2 hearing. What will he do? Will he have the power to recommend or order that there shall be a stage 2 hearing? There is confusion about that. Will refusal to authorise a stage 2 procedure when one should have taken place he regarded as maladministration by the ombudsman? That matter has to be resolved.
My greatest worry is whether what we are doing shuffles the ombudsman to one side when we think that we are doing something different. Will the ombudsman be able to come into the picture and investigate only when the stage 2 process is exhausted? All the assumptions seem to be that that will he so. That was not the 889 ombudsman's initial understanding. It may be the understanding that he has expressed in the longer paper to which the Minister referred, but in the ombudsman's initial response to the Wilson committee, which appears in the sixth report of the Select Committee on the Parliamentary Commissioner for Administration in 1993-94, he said:
I would not intervene where the first stage procedures have not been exhausted. However, where a complainant has had a formal investigation at the behest of the chief executive, I do not consider it necessary or appropriate to expect in every case that the complainant should have to go to stage 2 before coming to me.In other words, at that point the ombudsman believed that complainants would have the choice between going through the stage 2 or independent review procedure or going through the ombudsman procedure. There is an important point attached to that. One thing we know is that the ombudsman system has enabled citizens and, in this case, NHS complainants, to achieve a quality investigation of their complaint. My worry is that if we make it more difficult and diminish access to the ombudsman system, we shall think that we are extending the remit—in a sense, the Bill does so—but in practice we may finish up excluding citizens, patients and complainants from access to a system which has more than proved its worth.
My last point is one of language. Within the Department of Health there must be a sub-department of circumlocution. Whatever else has happened in the new health service, there has been a proliferation of byzantine language. Every person who appears before the Select Committee on the Parliamentary Commissioner for Administration these days bears a new and more extraordinary name. People involved in complaints are usually called something like customer relations officer or customer services officer. Sometimes it is more elaborate. Whoever handles complaints at local level will be crucial to the success and co-ordination of the system and access to it.
In the first response to the Select Committee, the Government called the local person a complaints officer. In the interim guidance they used the term "complaints manager". Let us have a complaints officer or CO. Why not link in quality, as we properly should when talking about complaints, and have quality and complaints officers or QCs? Let us have a robust name for a robust role; a clear name for a clear job. That will be essential to clearing up the mess that the present NHS complaints system is.
§ Mr. Andrew Miller (Ellesmere Port and Neston)
I welcome the thrust of the Bill, but I hope that the Minister has taken on board some aspects referred to during the debate which may give rise to some amendments in Committee. One such aspect is the question of clinical judgment. It is a difficult definition to arrive at. It is important that we know how the Government believe that the phrase will be used in the context of the legislation and by whom. During his preliminary investigations, will the commissioner be empowered to call expert witnesses to examine the case papers which confront him and determine whether the complaint is a matter of clinical judgment or medical negligence? It is a fine dividing line. The House needs to consider it extremely carefully.
What will happen to cases that come before the commissioner which relate to matters that might go before the courts? In the paper, "Responsibilities of the Health 890 Commissioner", published by the health service commissioner and placed in the Vote Office, there are some interesting paragraphs on page 9.
Paragraph 20, which deals with remedies in courts or at a tribunal, states:
If the Bill is enacted so as to bring complaints about the exercise of clinical judgment within the Ombudsman's jurisdiction there may be more complaints where he has to consider whether the person aggrieved has a remedy in the courts, or a right of appeal, reference or review before a tribunal to which a person has a right of appeal etc, and if so whether he may nevertheless investigate because he considers it would be unreasonable to expect the person to seek that remedy.We all understand the thrust of the commissioner's statement but it is full of potential ambiguities.
In paragraph 22, the commissioner refers to cases where, in his view, the primary concern of the complainant is to obtain damages. He says that he will not deal with such cases. The matter involves some difficult definitions. It may well be—and later in the paper the ombudsman acknowledges this—that people who initiate complaints may honestly not, at the outset, intend to seek redress in the courts. It may be that, as a result of the investigation by the commissioner, it comes to their attention that a matter is so serious that it should be subject to subsequent litigation.
The hon. Member for Batley and Spen (Mrs. Peacock) made some important points about people who were damaged—I think that was her word—in the course of treatment. The House may recall that recently my hon. Friend the Member for Rossendale and Darwen (Ms Anderson) had an Adjournment debate on the issue of women who have suffered damage as a result of treatment of cervical cancers using a device known as a selectron. Incidentally, the Minister, in his new responsibilities, may want to consider commitments given by his predecessor, the Under-Secretary of State for the Home Department, the hon. Member for Bolton, West (Mr. Sackville), who still owes me some detailed responses on dose rates and so on. I am sure that the reshuffle was not intended only to pass the buck on that. I look forward to a response. However, that case is a classic example of the fine dividing line between clinical judgment and pure negligence.
Clearly, many of the women who suffered damage in that case were the subject of experimentation. Fortunately, procedures have been changed. Unfortunately for those women, the Bill does nothing to deal with their problems because the commissioner states, and I presume that this is the Government's intention, that there would be no power for him to deal retrospectively with matters covered by the Bill. That is an example of a complex case where an experiment in the health service has had disastrous effects on a significant number of women.
In paragraph 21 of his document the commissioner states:
Legal proceedings provide no assurance to the complainant that any action has been taken to prevent recurrence of the matter complained about.If the Bill had been in force and one of those women had taken legal action, it would not have stopped the practice in its tracks. The matter needs more rigorous attention from the Department of Health and perhaps wider powers for the commissioner. 891 The other side of the coin, as my hon. Friend the Member for Fife, Central (Mr. McLeish) said, is equally important—the rights of practitioners to a proper defence in such cases. The sort of mechanism that we put in place will be critical. As many matters of clinical judgment could end up in litigation, practitioners may not be encouraged to be as open as they should be with the commissioner because he may decide that there was a complaint. People who complain may, at the outset, genuinely tell the commissioner that they have no intention of taking the matter to litigation, but when the report comes out they may take such action. What rights will clinicians have in such cases? How much of the documentation will be in the public domain at that stage?
On independent providers, it may help if I take an example from dentistry and consider the case of a company such as Denplan. It would be helpful to know where the Minister thinks the buck will stop in respect of NHS dentistry practices that have sold out lock, stock and barrel to Denplan, as has started to happen in my constituency. Who will carry the can in the case of company structures such as that where the direction comes from the national health service but provision is through a private operator, which is, in turn, owned by another organisation?
§ Mr. Malone
I was shaking my head because the hon. Gentleman's point is absurd. Denplan is an organisation that sells what is effectively a financial plan to reward independent dentists when they treat a patient in the private sector. It is a perfectly straightforward arrangement.
§ Mr. Miller
The Minister needs to learn more about his responsibilities because in my constituency, Denplan has bought out practices lock, stock and barrel.
§ Mr. Miller
The Minister shakes his head. I suggest that he checks the facts. In those circumstances, where does the buck stop? Is it with individual dentists or with their employer? Who is their employer—the national health service or the directors of Denplan? The Minister needs to consider that carefully because there is a difference between the dentist up the road in Victoria street, who will provide people off the street—including Members of Parliament—with treatment under the national health service but has on his wall an advertisment for the insurance element of Denplan and the practices that are now owned by Denplan. There is a quite different set of circumstances.
§ Mr. Malone
I do not want to detain the House as we reach the closing stages of the debate, but let us get this absolutely clear. Even if what the hon. Gentleman says is right, it is clear that when dentists treat NHS patients, they are working in an NHS capacity and when they treat patients in a private capacity, whether or not Denplan is involved, they do so in an entirely different capacity. If a corporate organisation employed a dentist to give someone NHS treatment, it would fall within the 892 definition of a provider of health care within the NHS and within the ambit of the legislation. The hon. Gentleman does not need to be confused. It is perfectly clear.
§ Mr. Miller
It is not perfectly clear; far from it. Different practices vary tremendously, from the pure NHS service to those that provide insurance-backed policies for some of their treatment, for some of their work, to those that are owned by a third party. The relationships involved are quite different. What would happen if a practice was no longer owned by the NHS but owned by an offshore company? Would it be covered by this Bill?
Confidentiality is an increasingly important part of the national health service debate. The hon. Member for Bolton, West made some interesting observations on the radio in answer to recent criticism of the health service in The Times or The Sunday Times. I discussed with him the role of the Data Protection Registrar. Will complaints about the misuse of confidential information held on computer records be subject to complaint to the commissioner under this structure, or will they be referred to the Data Protection Registrar? Given that the Government are undertaking a review of the Data Protection Registrar's office, which they announced on 10 May, will the Minister tell us when he winds up what discussions the Department of Health has had with the Home Office on that matter? Where does it fit into this legislation?
During this debate I had an intriguing thought: how would a clinician defend his judgment to ration a service? Would the commissioner be empowered to take evidence from the regional health authority, the Department of Health and Ministers? Would his remedies include the power to criticise or express a view on matters relating to the health service in cases where rationing was the reason why a patient could not get the treatment to which he or she was entitled?
All those matters are extremely complicated. Despite the fact that the Minister disagreed with me on dentistry, those matters need to be looked at seriously. I hope that, in Committee, the Government will take on board some of the points that have been made to ensure that we end up with a Bill which is not just good in principle but which works on a day-to-day basis. I am sure that the Minister would like to hold up a Bill that demonstrably works rather than being simply a good set of ideas.
§ Ms Ann Coffey (Stockport)
I am taking the opportunity of this debate to bring to the House's attention the circumstances in which a young boy died, because it illustrates some of the problems with the current complaints procedure.
On Thursday 7 December—last week—Nicholas Geldard, aged 10, collapsed at home. His mother found him lying on his bedroom floor. She took him into her bedroom and gave him the kiss of life and an ambulance was called. It took 20 minutes to arrive. Nicholas was admitted to the accident and emergency department at Stockport infirmary at 4 o'clock, where he was seen by a nurse. Arrangements were made to transfer him to one of the children's wards at Stepping Hill hospital. That transfer took an hour to arrange. The registrar decided to admit him to the children's ward, but not to arrange for a scan. By that time, he was conscious. 893 Later that night, Nicholas had a fit. It was decided that a scan was necessary. The scanner at Stepping Hill hospital, bought with £1 million of public subscriptions, was not available as it was staffed only from 9 am to 5 pm. He was anaesthetised and transferred to Hope hospital for a scan at 12.30 am. His parents were informed that he had a brain haemorrhage, a slow bleed at the side of his head, and the blood needed draining. The consultant at Hope hospital told the parents that Nicholas had a fighting chance, but no intensive care beds were available in the whole of Greater Manchester and he was taken to Leeds infirmary. He arrived at 4 am, 12 hours after he was first admitted to the accident and emergency unit.
Nicholas's distraught parents were informed that he was brain dead. The funeral takes place this Friday. I spoke to his parents last night. They had contacted the local paper, the Stockport Express, which in turn contacted me. His parents were shocked and distraught but, more than anything else, extremely angry. They want to know why the scanner was not available for use at Stepping Hill hospital and why no intensive care beds were available in the whole of Greater Manchester. They feel that lack of resources when they were needed killed their child and that the NHS let them down.
Questions must be answered. Why did the Greater Manchester ambulance service, which has just received its charter mark, take 20 minutes to arrive? I shall ask the chief executive. I shall ask the chief executive of the community care trust about the clinical decision not to refer Nicholas for a scan on admission to the children's ward. I shall ask the chief executive of the Stockport health commission why he funds the scanner's operation only from 9 am to 5 pm. And I shall ask the chief executive of the acute services trust why there has been a delay in discussing funding the scanner outside those hours. Part of the problem these days is that there are many questions to ask and many people to answer them.
I have also tabled a parliamentary question to ask the Minister to launch an inquiry into the circumstances of Nicholas's death. The Minister will no doubt respond by saying that those are operational matters. If they are, they are the consequences of the fragmentation of the NHS and a market-driven delivery of health care, in which each hospital and purchaser protects its own budget. I hope that I shall not get that response, as last week the Minister ordered a cut in management costs, which was also an operational decision. If he is willing to intervene on management costs in the health market, he should intervene in the case of a child's death.
Nicholas's parents can consult a solicitor, provided that they can afford to do so; I can refer the matter to the parliamentary ombudsman; and the parents can take up the clinical aspect through the complaints procedure. The Bill is to be welcomed as it extends the ombudsman's power to deal with clinical complaints, but it will not help in enabling constituents to challenge policy decisions locally. My constituents feel that those decisions contributed to their son's death. Policy is made by unelected boards. The NHS failed that child. It failed to provide the resources to enable him to have the best possible chance of life. The subsequent inquiry will no doubt come up with a number of explanations and that well-known person—nobody—will again take the final responsibility.
Ultimately, the Minister is responsible for the system. I hold him responsible for a system obsessed with sending out glossy brochures, with endless paperwork and with 894 collating and collecting endless and sometimes meaningless statistics. Most of all, however, I hold the Minister responsible for a system that failed to deliver resources where they were most needed. I hope that he will undertake an inquiry.
§ Mr. Kevin Barron (Rother Valley)
Whatever the circumstances of the case that my hon. Friend the Member for Stockport (Ms Coffey) has just described, the whole House will wish to offer its commiserations to my hon. Friend's constituents who tragically lost their son last week.
When we consider how the health service has operated for many years and the complaints that we have heard at our constituency surgeries, many of us could remark on the number of times we have wished that circumstances had been different. The hon. Member for Batley and Spen (Mrs. Peacock) told us of the circumstances in her constituency. We could all recount cases that have been brought to us, involving not just people who have suffered tragedy but people who feel that the mechanism within the NHS has not provided answers to the questions that they or members of their families have posed. We all agree that that complaint needs to be sorted out. As has been said, Opposition Members support the basis of the new system, in which the investigation of complaints is separated from the punishment of offenders; we support the division of complaints from the disciplinary procedures in the national health service.
We also welcome extending the scope of the complaints procedure to family health practitioners and the so-called "independent" providers. My hon. Friend the Member for Fife, Central (Mr. McLeish) asked the Minister whether he would say exactly how widely that extends in terms of the growing private sector in health care, and exactly whom the commissioner would inquire into.
I am pleased that clinical complaints will now be part of the commissioner's remit. The hon. Member for Chislehurst (Mr. Sims) said that that was not very clearly defined in the Bill, and it is probably not very clearly defined in all our minds. I hope that the commissioners will have clearly defined exactly what "clinical complaint" and "clinical judgment" mean. I am sure that many people outside the House will examine that closely.
The timetable is very ambitious because it does not stand on its own. The Bill is, if not an integral part, an important part of the change in the new complaints procedure that will come into being in April 1996. In general, we agree with that. The Patients Association believes that the details need to be clarified, and we would agree.
Specifically, as my hon. Friend the Member for Cannock and Burntwood (Dr. Wright) said, we require more information about the status of the lay panel at stage 2. There is a contradiction between the contents of an earlier Health Select Committee report and what is in the Bill. We want to know about the panel's independence from the person or organisation being complained about, and we are interested to know the Minister's opinion on the automatic right of access to stage 2 for those patients who want it.
It would be nice to know more about the type of professional clinical advice available to the panel and about the type and number of clinical advisers to be 895 included in the 130 new posts in the ombudsman's department which are planned under the provisions of the Bill.
We wish to know what measures are in place, and what further measures are planned, to improve staff training in the new procedures. My hon. Friend the Member for Pembroke (Mr. Ainger) mentioned that issue. Training will be crucial if we are to do effectively what my hon. Friend the Member for Cannock and Burntwood said that we should do—I hope that the profession will consider it—and to change the culture which has existed in the national health service and the wider areas in which we provide health cover. Changing that culture is crucial to the events of the next few months. In my opinion, if it is not comprehensive, and if it does not answer the questions that hang over it at the moment in its present early form, the Bill will fail to do that.
I shall briefly mention several matters. We shall return to these subjects in Committee, but it may help to move the Committee on a bit if we consider them now. One is the issue of the difference between the way in which fundholders and other purchasers are treated in the Bill.
On some of the specifics of the Bill, I should be grateful for clarification from the Minister about the meaning of clause 2(2)(1B), as there appears to be confusion in medical circles about the Government's intention. Will patients be able to complain about the way in which GP fundholders allocate their budgets? If that is the case, will the Minister tell the House whether complaints about decisions made by purchasing authorities will also be included in the procedures?
The Department of Health publication, "Being Heard", maintained that
there should be no change in the commissioner's current jurisdiction over complaints about purchasing.It seems to me that, as the Bill stands, complaints about non-fundholder purchasing and allocation decisions are specifically excluded from consideration. If that is true, will the Minister amend the Bill to bring the procedures for complaints about non-fundholders' decisions into line with those planned for fundholders?
Another issue was mentioned by my hon. Friend the Member for Fife, Central and a couple of other hon. Members who have contributed to the debate. It will be useful to consider that. Will the Minister enlighten the House about the provisions of clause 2 as compared to clause 6 of the Bill?
Another discrepancy appears in the Bill. Apparently, the commissioner cannot investigate the merits of all decisions complained against. As I read it, under the terms of the Bill, the commissioner would be able to consider the mechanics of the procedure that resulted in a decision on a complaint, but not the decision itself, unless such a decision came about as a result of maladministration. That is reinforced in clause 2(2)( IC) yet that provision does not apply to clinical decisions, in respect of which, if we are to believe it, clause 6(2) amends the commissioner's remit to allow him to investigate the merits of the decision as well as the procedure adopted.
The Minister intervened on my hon. Friend the Member for Fife, Central when he made his contribution at the start of the debate, and said that we would have to read 896 the consensus paper to examine the detail of what the commissioner would say in that area. That paper has become available only as the debate has proceeded. The glance that I have taken at it shows that that paper is to be sent out for general comment, which should be made on it by the end of January 1996. It is not definitive, and it may leave a gap in the Bill. I want the Minister's comments on that.
Although clause 10 relates to previous legislation which I confess that I have not yet read, it speaks about providing the final report to people who are involved, but it does not say whether the final reports considered by the commissioner are made available to complainants, as they are to the other people involved.
To summarise, we welcome the opportunity to strengthen and harmonise the complaints procedures in the NHS, and we support the general principles of the Bill. As we all know, the complaints process may be long-winded and delayed, and it can cause unnecessary anxieties for patients and health professionals. The new system should remove many of those failures and make complaining more accessible, but we want to work to make those improvements possible.
I hope that in Committee we shall further explore ways in which those improvements can be delivered to achieve a more smoothly running system and better to serve the needs of patients in the national health service.
§ The Parliamentary Under-Secretary of State for Health (Mr. John Horam)
I believe that, when my hon. Friend the Minister for Health opened the debate, he felt that we were subject to some competition from "Gardener's Question Time". Uncharacteristically, he underplayed the point. We are actually subject to even worse competition by reason of the fact that today is the traditional annual Oxford and Cambridge rugby match, which is of considerable interest in medical and political circles, so we are under a double duress.
We should pay tribute to the diligence and virtue of all the hon. Members who attended the debate in the course of this afternoon because, in spite of the distractions, we concentrated on what is really important. The Bill is an important issue, whatever goes on outside the House.
I shall respond to some of the arguments that were made. I welcome the general Opposition support voiced by the hon. Member for Fife, Central (Mr. McLeish) in his opening remarks. If I remember rightly, he quoted the commissioner saying that we must translate hot air into performance; I certainly concur with that.
The hon. Gentleman will also be aware that the whole business of complaints procedures is something that the Government are tackling, not merely in the national health service, but throughout the range of public services. He will also know, as a student of those matters, that the Wilson committee was produced hand in hand with the Wilcox report of the committee chaired by Lady Judith Wilcox, which inquired into the issue of complaints procedures and evolved a model procedure for all public services.
We can assure the hon. Gentleman that the issue of complaints is being investigated, not merely deeply inside the national health service, but throughout the public services. It is an important matter. Very reasonably, the 897 hon. Gentleman said that, whatever procedures are established, they must gain the confidence of patients and professionals—I emphasise, professionals. He said that we had to proceed cautiously, given the huge sensitivities involved, and I accept that. It is very important, and we shall try to do that.
The hon. Gentleman asked whether NHS patients will be subject to the procedures whether their treatment was from a public or private source. The answer is yes. I assure the hon. Gentleman that the independent providers of medical services that may be involved will also be subject—in the larger package, of which the Bill is only a part—to stages 1 and 2. The hon. Gentleman and others raised the important issue of resources. We are contributing a substantial, 150 per cent. increase in the commissioner's resources. The 90 existing staff will be supplemented by 130 or 140 additional personnel—a major change of focus of the commissioner's services, which is crucial to the exercise.
I doubt that we could proceed faster. When such a radical change is effected, there is always the danger of making the system worse by proceeding too fast. We must not overburden one commissioner by asking him to expand his services too rapidly. The hon. Member for Fife, Central mentioned regional variations. I would argue—I would, wouldn't I?—that we established the Wilson committee and are putting in place national procedures precisely because of regional variations.
The hon. Member for Greenock and Port Glasgow (Dr. Godman), in an intervention, asked a question of my hon. Friend the Minister for Health that, with the assistance of my hon. Friend the Minister of State, Scottish Office, I am happy to answer. That question related to medical records from Rankin hospital, Greenock. It is a matter of grave concern that sensitive personal health information came into the public domain, albeit as the result of vandals breaking into a closed building. The information that was taken comprised a computer printout detailing operation procedures between 1 January and 31 January 1985 of some former patients of the Rankin maternity unit. They were not individual case records but nevertheless contained sensitive personal information.
The Inverclyde Royal NHS trust much regrets any distress that the incident may have caused, and has set up a helpline so that former patients can speak to a senior midwife or, if necessary, a consultant about any concerns that they may have. Any members of the public finding printouts are asked to contact the trust, which will arrange collection. The trust has undertaken a full investigation and will provide the Scottish Office with a copy of its findings. Until those investigations are completed, neither I nor my hon. Friend the Minister of State, Scottish Office consider that it would be appropriate to comment further.
§ Dr. Godman
I thank the Minister and the other Ministers concerned for their sympathetic response to a most distressing affair.
§ Mr. Horam
I am grateful to the hon. Gentleman for his kind remarks.
My hon. Friend the Member for Rugby and Kenilworth (Mr. Pawsey) apologised for having to leave before the end of the debate—rugby seems to be invading this debate. I was grateful for my hon. Friend's remarks about the general value of the procedures that we are putting in 898 place. He paid tribute to the work of the Select Committee—he would, wouldn't he? My hon. Friend is the Committee's Chairman. However, his tribute was well merited because the Select Committee has made a major contribution to our work.
The hon. Member for Wakefield (Mr. Hinchliffe) strayed a little in his remarks—but as a former student of Silcoates school, Wakefield, I compliment the hon. Gentleman on his common sense. As a consequence of my school days, I have always been an aficionado of people from the area that the hon. Gentleman represents. He talked a lot of good Yorkshire common sense about the complexity of the present situation. We are presenting the total package of stages 1, 2 and 3—the ombudsman being stage 3—of which the Bill is part precisely because of that complexity, to take a clearer approach than currently obtains. If the hon. Gentleman serves on the Committee, he will—I hope—find that we have clarified matters in a direction, if not at the speed, that he can support.
My hon. Friend the Member for Batley and Spen (Mrs. Peacock), who has also left, mentioned the devastating effect of two particular cases. She eloquently indicated her support for the inclusion of clinical judgment in the ombudsman's clinical remit. The hon. Member for Southwark and Bermondsey (Mr. Hughes) declared himself to be not only a lawyer, which is interesting, but a critic of his own profession—which is rather more unusual. He made the point that medical negligence actions are profoundly unsatisfactory. They are—I have some personal experience of them, and they are the most inappropriate, time-consuming and costly way of pursuing difficult and heart-rending cases. If the procedures we propose can prevent such actions, we will do a great deal of good—even if the legal profession loses a certain amount of revenue. I am sure that neither the profession nor the hon. Gentleman would mind.
My hon. Friend the Member for Chislehurst (Mr. Sims) made a sound point about clinical judgment not being defined in the Bill. Neither is maladministration. We are establishing, by common sense and casework, a sensible approach. I draw my hon. Friend's attention to paragraph 42 of the commissioner's paper, which deals with his responsibilities and clearly shows his thinking. The essence of the concept is that clinical judgment is that which a health service professional makes by virtue of his or her particular skills, expertise and training, and that which a lay person could not make. That rough and ready definition is all that I can offer my hon. Friend for the moment.
The hon. Member for Pembroke (Mr. Ainger) made a telling speech about the case history of one of his constituents, Mrs. Rhoda Quigley, which we were all saddened to hear. He made an important point about hospital discharges, particularly of elderly patients. The commissioner can already examine discharge decisions, but the Bill will add clinical judgment—an important gain.
I am pleased to see my hon. Friend the Member for Southport (Mr. Banks) is in his place and that he has not disappeared. Neither would he, because he is a stout man and sits through everything. I was delighted to hear his trenchant remarks welcoming the Bill. Members of my family work in the medical profession in my hon. Friend's area, so I am particularly glad to have his support on this occasion. 899 The hon. Member for Cannock and Burntwood (Dr. Wright) congratulated the Government on their speed of action and ambition. I am sure that the hon. Gentleman will want to apply that verdict on a larger scale before the general election. It was well merited in this case. The hon. Gentleman regretted the absence of a general Bill incorporating all the measures in question, but we already have legislation that enables us to act on stages 1 and 2—the internal NHS changes. I am sure that the hon. Gentleman would regard it as strange if the Government introduced new legislation when they are able to act under existing measures.
The hon. Gentleman regretted also the absence of a general Bill on the ombudsman and his powers. We want to proceed rapidly, but if we open up the whole debate on the future of the ombudsman on which the Select Committee reported, that would lead to a slowing down of desirable measures that should be put in place as rapidly as possible. I beg the hon. Member for Cannock and Burntwood to bear that point in mind, but I am sure that his general point will be taken up at a later stage in the life of this Government or the next Conservative Government.
The hon. Member for Ellesmere Port and Neston (Mr. Miller) made a characteristically professional and well-informed speech. He asked to what extent the commissioner would be able to call on professional advice. He will be able to do so at any stage when deciding on a problem regarding clinical judgment. The hon. Gentleman also had a little exchange with my hon. Friend the Minister, which, I am sure, he was totally satisfied by, about the distinction between the two roles of providers.
§ Mr. Horam
When someone is providing a service to an NHS patient, that service will be covered by the procedures set down in the Bill. When that does not happen, the provider will not be subject to those procedures. I do not disagree with the 900 distinction that the hon. Gentleman made, which fits in with the Bill. I will write to the hon. Gentleman in due course about confidentiality and the Data Protection Registrar.
The hon. Member for Stockport (Ms Coffey) made a heart-rending point about an individual constituent, and obviously that person and her family have our total sympathy. What has happened is a tragedy but, in future, such a case would be subject to the procedures that we are discussing now. If they do nothing else, those procedures, which will mean that the circumstances involved in such a case would be investigated thoroughly, may help to prevent such a tragedy recurring. I hope that that offers some comfort to the hon. Lady's constituent.
The hon. Member for Rother Valley (Mr. Barron) kindly kept his remarks short.
§ Mr. Horam
"Hear, hear" is rather too long. The hon. Member for Rother Valley is right to say that we shall have an opportunity to discuss various matters thoroughly in Committee.
The Bill offers a new three-tier system, which is simple, clear, quick and effective. It will save money, and it will help patients and doctors. I commend it to the House.
§ Question put and agreed to.
§ Bill accordingly read a Second time, and committed to a Standing Committee, pursuant to Standing Order No. 61 (Committal of Bills).