In section 11 of the 1993 Act (procedure in respect of investigations) after subsection (6) there shall be inserted—
"(7) Without prejudice to the provisions of subsections (1) to (6) above, the Secretary of State may, after consulting the Commissioner and such representatives of health service professions as the Secretary of State thinks fit, by regulations made by statutory instrument make provision for the conduct of investigations which arise in consequence of the exercise of clinical judgment.
(8) Regulations under subsection (7) above may make provision for—
- (a) the criteria to be used by the Commissioner in the selection of specialist medical advisers to assist him in that investigation;
- (b) the level of proof necessary to satisfy the Commissioner that a complaint is justified;
- (c) the circumstances under which the Commissioner may delay an investigation or refer it to another body; and
- (d) such other matters as the Secretary of State thinks fit.".'.—[Mr. Galbraith.]
§ Brought up, and read the First time.
§ Mr. Sam Galbraith (Strathkelvin and Bearsden)
I beg to move, That the clause be read a Second time.
As the House knows, and as I have said before, this Bill is an excellent advance for the national health service. The Bill is considered to be an extension of the complaints procedures and systems within the NHS, which are important. I think that it has another important role, which is to improve the standards of care in the NHS, and we should not underestimate its value in achieving that.
538 It is important for us to be clear about how the Bill will operate, and that is the basis of my new clause. There will be two consequences as a result of the Bill introducing clinical judgment into the competence of the commissioner. I suspect that many more complaints will be raised than the Government and the health service ombudsman have anticipated. However, there will be some disappointment for many complainants in that no clinical incompetence will be found in the majority of cases. I have had many medical negligence cases presented to me and, in my experience, in about 85 or 90 per cent. of the cases that I was asked to review, there was no case to pursue. That will probably be the case here.
If the system is to be seen to work properly, fairly and openly, while remembering that we are calling into question someone's clinical judgment, a number of factors should be put on record. From what I have read and heard, and from what the Under-Secretary, the hon. Member for Orpington (Mr. Horam), has said, I have absolute confidence in the ombudsman and believe that he will get it right. I have been impressed by his paper and by the various communications we have had. However, allowing for that, it would be nice to raise the issues that we hope that he will address.,
The first of the regulations that I am proposing in my new clause concerns the criteria that should be used by the commissioner in the selection of the doctors who will conduct the investigation. That is the crux of the matter. Doctors, obviously, have to be judged by their peers. The judgment of general practitioners will have to be judged by other general practitioners and the judgment of hospital consultants by other hospital consultants because of the various clinical judgments that are involved. If a complaint is raised against a registrar, obviously, the question of clinical incompetence will vary depending on whether a consultant is involved. If the ombudsman finds that a registrar made a decision that should have been made higher up the line, I hope that the ombudsman will not shirk from his duty. He should examine not just whether the person who made that decision had sufficient knowledge to do so, but whether it should have been made by someone higher up. That is important.
Another issue is the level of proof that will be necessary. That will be difficult because often there is a dispute about clinical judgment. I hope that that will be sorted out and that those who give the ombudsman advice will admit that there might be a dispute and that a reasonably large number of doctors would have done something one way and that other doctors would have done it another. We should recognise that there may be a dispute, which is the purpose of the second regulation that I have proposed.
The next issue is the one that worries me the most. The ombudsman suggested that when he raises a complaint, he might like to say he will not pursue it because it should be pursued by the General Medical Council or the courts as a case of medical negligence. The ombudsman should not have that power within his remit. He should have a case referred to him and he should investigate it. Should the complainant seek to pursue the case through the GMC or the courts, as the ombudsman has made clear, he should have the power to delay the case and to reconsider the matter. The ombudsman should not have the power to suggest that it should be pursued in another manner because he cannot make judgments about serious professional misconduct or negligence, which are matters for law.
539 Those are a few of the points that I wished to raise. The Bill is a worthwhile addition to the complaints procedure. We should look at it as a method of improving clinical competence. I hope that the ombudsman will listen to the points that we have made and take them into consideration when he is dealing with such cases.
§ The Parliamentary Under-Secretary of State for Health (Mr. John Horam)
I am grateful to the hon. Member for Strathkelvin and Bearsden (Mr. Galbraith) for the manner in which he has presented the case. We had an extensive discussion on it in Committee, when he mentioned a number of points. As he will be aware, we do not believe that it is right to put the new clause into statute in the form that he has proposed. The hon. Gentleman has spoken of his confidence in the ombudsman, and we believe that the ombudsman should have the final say in such matters. As we know, the ombudsman has set out clearly in his report how he will consider these matters.
The points raised by the hon. Gentleman and delineated, one by one, in the regulations that he suggests are certainly worth studying and are extremely valuable. I can draw the ombudsman's attention to the hon. Gentleman's points and I am sure that he will study them with great care because they deserve attention. In the light of that assurance, I hope that the hon. Gentleman will be prepared to withdraw his new clause.
§ Mr. Galbraith
I thank the Minister for his reply. In the light of his comments and my confidence in the ombudsman, I beg to ask leave to withdraw the motion.
§ Motion and clause, by leave, withdrawn.