§ Mr. DismoreI beg to move amendment No. 12, in page 1, line 20, at end insert—
'(4) In section 3 (general remit of Commissioners)— 605The amendment would half plug a consequential loophole. Section 3(1) of the Health Service Commissioners Act 1993 states:
- (a) at the end of subsection (1) insert "or, in the event that the person the subject of the complaint has retired or resigned from the National Health Service, refer the complaint to the professional body of the registered medical practitioner, dentist or nurse who is the subject of the complaint;"
- (b) at the end of subsection (1A) insert "or, in the event that the person the subject of the complaint has retired or resigned from the National Health Service, refer the complaint to the professional body of the registered medical practitioner, dentist or nurse who is the subject of the complaint;"
- (c) at the end of subsection (1C) insert "or, in the event that the person the subject of the complaint has retired or resigned from the National Health Service, refer the complaint to the professional body of the registered medical practitioner, dentist or nurse who is the subject of the complaint".'.
On a complaint duly made to a Commissioner by or on behalf of a person that he has sustained injustice or hardship…the Commissioner may, subject to the provisions of this Act, investigate the alleged failure or other action.There is then a cross-reference to subsection (1A) of section 15, which states that where in the course of an investigation a commissioner comes across something that islikely to constitute a threat to the health or safety or patients…the Commissioner may disclose the information to any persons to whom he thinks it should be disclosed…That could be the professional bodies, for example.The problem is what would happen if the commissioner decided not to conduct an investigation. My amendment would deal with that problem, so that if the commissioner decided not to conduct an investigation into someone who had retired or resigned from the health service, he would still be able to refer the matter to the professional body. At present, he cannot do that.
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That matter was highlighted by the health service ombudsman in his annual report for 1998–99, paragraph 4.6 of which stated:
During 1998–99 there were other occasions in which complaints to me raised issues which I thought it appropriate to pass to the regulatory body concerned, because there was a possible risk to the health or safety of patients. However, the effect of the wording of the legislation governing my role is to restrict the circumstances in which I can pass such information to another organisation, such as the GMC or the Commission for Health Improvement. For example, I cannot disclose information to another organisation if I decide not to investigate the complaint, or if the matter of concern falls to be disclosed in one of my reports.That relates to the reference I made to the relationship between sections 13 and 15 of the principal Act.The report continued:
As a result, paradoxically, I have less scope to bring concerns to the GMC, for example, than a private citizen has. And my medical and nursing advisers are in a potentially invidious position if they consider that they have a professional duty to act on concerns arising from their scrutiny of a complaint to me.The ombudsman states that he told the Government and the Select Committee on Health about that problem, and proposed that his powers should be widened to deal with that loophole. That is what my amendment tries to do. Paragraph 4.7 of the report stated: 606I am pleased to report that in March 1999, in response to an amendment to the Health Bill tabled in the House of Lords by Lord Harris of Haringey…the Government agreed to consider proposing an amendment which would have the effect that I, and the regulatory bodies, were looking for. That would make it more possible for my office to play its part in developing effective working communication with other clinical governance organisations.The measure offers an opportunity to plug that loophole.I tried to table a more general amendment that would have affected all investigations—or rather non-investigations—but, unfortunately, it was not selected. The selected amendment deals with the position when a registered medical practitioner has retired or resigned from the NHS. However, that was a sensible selection, because we know from the statistics for 1998–99 that there were 2,869 complaints to the ombudsman, but only 119 investigations. Of those, 62—about half—involved a clinical complaint. One can thus extrapolate that, pro rata, probably 1,500 medical issues were referred to the ombudsman in 1998–99. The number is even greater in 1999–2000, when the ombudsman estimates that he will receive 3,450 complaints and will conduct 150 investigations.
The problem is that we could end up with about 3,500 complaints that are not investigated and with which the ombudsman can do nothing else. If half those involve clinical issues, the ombudsman might like the opportunity to refer them on to the General Medical Council or whoever for action—as he says in his report—even if he decides not to conduct a formal investigation himself.
The circumstances in which that is likely to arise may well be when a practitioner has retired or resigned from the health service. Under the Bill, the ombudsman would be entitled to look at a complaint, but he might think that, as the person had retired or resigned and would not be going back into practice, there would be little point in his spending a lot of time and money making one of his 150 investigations into that case. However, he might decide that the GMC should be aware of the matter, in case the person tried to do locum work, for example. It would not be worth devoting the ombudsman's resources to the problem, but the GMC should be made aware of it.
At present, the ombudsman could do nothing about such a case, as he pointed out in his report. His staff are put in a difficult position, because his medical advisers might want to take action, but could not do so. My simple amendment would deal with that problem.
The amendment is in three parts, because that is how the original legislation was drafted. It would be a worthy addition; it would half plug a loophole that would emerge as a result of the Bill.
§ Ms StuartWhen the complaints procedure was set up in 1996, the clear intention was that it should be completely separate from disciplinary procedures. The prime aim of the ombudsman procedure is to resolve problems and satisfy the concerns of the complainant, while being fair to all those who are the subject of a complaint.
The amendment proposed by my hon. Friend the Member for Hendon (Mr. Dismore) would give the health service commissioner the statutory provision to refer a complaint made to him to the disciplinary bodies of doctors, dentists and nurses, subject to section 15 of the Health Service Commissioners Act 1993.
607 It has been suggested that the commissioner might not already have that power, but it is clear that he is able to disclose information to regulatory bodies about any person who is likely to constitute a threat to the professional bodies. He is not as powerless as has been suggested. The commissioner has suggested to my officials that he thinks that the onus should be on the complainant to disclose such information. He therefore does not require such statutory powers.
Although an argument could yet again be made to widen the Bill's remit, that would substantially detract from its original and precise intention of plugging a specific loophole. I shall not go into detail on the confusions and ambiguities that the amendment might create, but would simply point out that it does not accord with either the current complaints policy or the wishes of the health service commissioner. It should therefore be rejected.
§ Mr. DismoreMay I put an additional point to my hon. Friend? I quoted from the ombudsman's report in which he suggested that the Government had agreed to consider proposing such an amendment. I fully understand the argument that my amendment may be premature and that it should deal with all complaints and not just those against people who have retired or resigned from the health service. However bearing in mind the assurance that was given to the ombudsman, is my hon. Friend saying that, in future, such an amendment will not be made to the legislation relating to the commissioner? Or is she saying that, in accordance with the assurance previously given, such an amendment will be proposed?
§ Ms StuartI am sure that my hon. Friend is aware that a review of the roles of all the ombudsmen is currently being carried out by the Cabinet Office, and I do not wish to pre-empt the outcome of that. I am saying that, within the specific purpose of this Bill, I do not think that the amendment is appropriate. It is for that reason, rather than on the basis of the merits of the case itself, that I suggest that we reject the amendment.
§ Mr. DismoreNow that I have listened to my hon. Friend, and since my proposal was something of a probing amendment, I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.