COMPLAINTS ABOUT HEALTH CARE

HC Deb 08 July 2003 vol 408 cc996-1007

'(1) The Secretary of State may by regulations make provision about the handling and consideration of complaints made under the regulations about—

1. (a) the exercise of any of the functions of an English NHS body or a cross-border SHA;
2. (b) the provision of health care by or for such a body;
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3. (c) the provision of services by such a body or any other person in pursuance of arrangements made by the body under section 31 of the Health Act 1999 (c.8) in relation to the exercise of the health-related functions of a local authority.

(2) The Assembly may by regulations make provision about the handling and consideration of complaints made under the regulations about—

1. (a) the exercise of any of the functions of a Welsh NHS body;
2. (b) the provision of health care by or for a Welsh NHS body;
3. (c) the provision of services by a Welsh NHS body or any other person in pursuance of arrangements made by the body under section 31 of the Health Act 1999 (c.8) in relation to the exercise of the health-related functions of a local authority.

(3) Regulations under this section may provide for a complaint to be considered by one or more of the following—

1. (a) an NHS body;
2. (b) the CHAT;
3. (c) an independent lay person;
4. (d) an independent panel established under the regulations;
5. (e) any other person or body.

(4) Regulations under this section may make provision for a complaint or any matter raised by a complaint—

1. (a) to be referred to a Health Service Commissioner for him to consider whether to investigate the complaint or matter under the Health Service Commissioners Act 1993 (c.46) (and to be treated by him as a complaint duly referred to him under section 10 of that Act);
2. (b) to be referred to any other person or body for him or it to consider whether to take any action otherwise than under the regulations.'.—[Dr. Ladyman.]

Brought up, and read the First time.

The Parliamentary Under-Secretary of State for Health (Dr. Stephen Ladyman)

I beg to move, That the clause be read a Second time.

Madam Deputy Speaker

With this it will be convenient to discuss the following:

Government new clause 31—Complaints about social services.

Government new clause 32—Complaints regulations: supplementary.

Government new clause 33—Representations relating to special guardianship support services.

Government amendment No. 301.

Amendment No. 40, in clause 107, page 44, line 7, leave out subsection (1) and insert—

'(1) Complaints under this Act may be made by an individual or a body of persons, whether incorporated or not.

(1A) A complaint may be submitted in respect of—

1. (a) the exercise by an NHS body of any of its functions,
2. (b) the provision by any person of health care for which the body is responsible.
3. (c) the provision of services by the body or any other person in pursuance of arrangements made by the body under section 31 of the Health Act 1999 in relation to the exercise of the health-related functions of a local authority.

(1B) A complaint may be initiated by—

1. (a) the person aggrieved,
2. (b) his personal representative,
3. (c) a member of his family,
4. (d) an independent advocate, or
5. (e) some body or individual suitable to represent him.'.

Amendment No. 41, in page 44, line 7, leave out 'may' and insert 'shall'.

Amendment No. 42, in page 44, line 17, leave out 'may in particular make' and insert 'shall make further'.

Amendment No. 43, in page 44, line 17, leave out 'may' and insert 'shall'.

Amendment No. 44, in page 44, line 18, leave out paragraph (a).

Amendment No. 45. in page 44, line 20, at end insert

',including timescales for completion of each stage'. Amendment No. 46, in page 44, line 26, at end insert—

'(h) for a specific complaint and redress procedure for challenging the refusal of NHS-funded continuing care'. Amendment No. 47, in page 44, line 27, leave out subsection (3).

Amendment No. 48, in page 44, line 29, leave out

'and within the prescribed period'. Amendment No. 49, in page 44, line 37, leave out paragraph (d).

Amendment No. 50, in page 44, line 37, at end insert—

'(e) primary care practices providing NHS services under contract, and other private providers treating patients under contract with an NHS body'. Amendment No. 51, in page 44, line 37, at end insert—

'(4A) The provision that may be made under subsection (2)(f) includes the provision for a report about a complaint to recommend the making of an ex-gratia payment in respect of injuries sustained, loss of earnings or expenses incurred as a consequence of the incident or incidents complained about.'. Amendment No. 52, in page 45, line 4, leave out 'may' and insert 'shall'.

Amendment No. 53, in page 45, line 6, at end insert—

'(6A) Provision under subsection (2)(g) will include provision for a complaint to be referred to either the CHAI or the Health Service Commissioner if the complaints procedure has not been completed at the relevant stage within a reasonable timeframe.'. Amendment No. 54, in page 45, line 16, at end insert—

'(8A) Regulations under this section shall include provisions for the right to an oral hearing with the investigating officers of the relevant body where appropriate.'. Amendment No. 26, in page 45, line 19, at end insert—

'(10) No regulations may be made under this section unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.'. Government amendments Nos. 302 and 303.

Amendment No. 55, in clause 109, page 46, line 43, at end insert—

'() for circumstances in which a complaint may be considered, including—

1. (i) the breach of any duty under Part IV of the Care Standards Act 2000, and
2. (ii) the breach of any duty to provide services under Part III of the Health Service and Community Care Act 1990 (c.19).'.

Amendment No. 27, in page 47, line 41, at end insert—

'(10) No regulations may be made under this section unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.'. Government amendments Nos. 304 to 312 and 316 to 318.

Amendment No. 28, in clause 181, page 95, line 35, after 'from', insert

'regulations under section 107 or 109 or'. Government amendments Nos. 313 to 315 and 319.

Dr. Ladyman

We now come to the part of the Bill that everyone is really interested in. I wish to speak to Government new clauses 30, 31 and 32, and I will comment on the other new clauses and amendments in this group. I shall try to be as brief as possible so that other hon. Members can speak.

Government new clauses 30 to 32 will replace clauses 107 to 110 on health and social services complaints in England and Wales, so removing a large amount of repetition of common provisions by combining those clauses into a supplementary clause. I apologise to the House for tabling replacement clauses on Report, but I hope that hon. Members will agree that that approach is preferable to tabling a large number of drafting amendments. I took that decision because I thought it preferable to introduce the new clauses on Report, rather than waiting for the Bill to reach the Lords. Time constraints did not allow a debate on the complaints clauses in Committee, so time has not been wasted debating those clauses that we now propose to replace.

Sir Patrick Cormack

rose

Dr. Ladyman

New clause 30 will allow regulations to be made setting out the procedure to be followed when considering complaints received by an NHS body in England and Wales about the exercise of its functions.

Hon. Members

Give way.

Dr. Ladyman

I shall give way, but then I want to make progress.

Sir Patrick Cormack

I am grateful to the hon. Gentleman for giving way, but that is the very point that I am making. Does he truly and sincerely think that the

House now has adequate time to debate what was not debated in Committee? Can he give a straight answer to that question?

Dr. Ladyman

The House has voted on the programme motion; the House clearly believes that it has adequate time.

Lynne Jones (Birmingham, Selly Oak)

Will my hon. Friend give way?

Dr. Ladyman

Yes, but this is the last time.

Lynne Jones

My hon. Friend says that he took that decision. May I ask whether he personally took the decision?

Dr. Ladyman

Of course not; I made a recommendation to the Secretary of State for Health and he made the decision.

New clause 31 will allow regulations to be made setting out the procedure to be followed when considering complaints received by a local authority in England or Wales about the discharge of its social services functions.

New clause 30(1) and (2), and new clause 31(1) and (3) will allow regulations to be made setting out the procedure for handling and considering complaints where a complaint is made about the exercise of an NHS body's functions or health care provided by or for such a body, or where a complaint is made to a local authority in England or Wales respectively. The regulations made under those clauses can specify in what circumstances a complaint will trigger the formal complaints procedures, as prescribed in the regulations.

NHS bodies or local authorities may often be able to address concerns expressed or issues raised by service users, or their relatives or carers, without the formal complaints procedures being used. We want people to have access to the formal procedures when they want them, but we do not want to force people to undertake the whole process if they prefer a less formal approach.

There are also a number of drafting amendments to provide for consistency and clarity of wording between the various complaints clauses. The new clauses make it clear that, if the Commission for Healthcare Audit and Inspection, the Commission for Social Care Inspection or, in Wales, the independent panel, refer a complaint to the health service commissioner or local government ombudsman, the commissioner or ombudsman will have discretion about the action that they might take in response and are not obliged to investigate every case. A further amendment aims to clarify the intention of clause 109(8) and reconcile it with the language used in the Children Act 1989 in respect of representations and complaints.

The purpose of new clause 32 is to combine all common provisions that exist for the handling and consideration of health care and social services complaints for both England and Wales into one new clause. It has been drafted to clarify the policy intentions and any procedural differences between health care and social services in both England and Wales. Subsection (2) combines common provisions in clauses 107 to 110, and specifies the persons who may make a complaint, the complaints which may or may not be made, complaints which need not be considered, the period within which complaints must be made and the procedures for making and considering a complaint. It also allows for regulations to be made about which complaints may be heard, about the making of a report about the complaint and the action to be taken once a complaint is made.

Subsection (3) is intended to provide for the body considering a complaint to be able to recover its costs from the body complained about if it wishes, depending on precisely how it decides to execute the functions being bestowed on it to investigate and resolve complaints. The new wording of subsection (3) is intended to clarify the position on who makes the payment and to whom the payment is made. It also replaces the word "fee", which implies a service rendered, with "payment", which more accurately reflects the position that the payment is to cover costs incurred in considering the complaint.

The new clause also contains a consequential amendment to ensure consistency of wording in the Bill in relation to disclosure of information to third parties. As currently drafted, clauses 107(9), 108(9), 109(9) and 110(10) may be interpreted as applying to unspecified obligations of confidence, which would mean that they would override obligations arising under statute as well as common law. The clause does not override the specific protections from disclosure for individuals set out in the Data Protection Act 1998: information relating to individuals must not be disclosed without the consent of that individual unless it is necessary to do so for any of the reasons specified in the Act. Personal data will still need to be processed lawfully in accordance with the provisions of the Act, and it is not the intention that information relating to individuals will be disclosed without their consent unless the Data Protection Act provides that that may be done.

Subsection (5) allows for regulations to provide for cross-cutting complaints, not all of which could be considered under one set of regulations. The intention is that when a complaint would fall to be considered under two different schemes, the regulations enable the complaint to be considered in parallel. A single complaint of this kind would trigger action under both sets of regulations, each working in parallel, so that for the complainant, it appears as one system.

New clause 33 tidies up the legislation by revoking section 14G of the Children Act 1989 and inserting a new subsection into section 26 of that Act, which brings complaints about such special guardianship support services functions as may be specified in regulations within the ambit of the complaints procedure established under section 26. Section 14G was inserted into the Children Act 1989 by section 115 of the Adoption and Children Act 2002. The policy intention was always that complaints about special guardianship support services in relation to children should be considered under the Children Act complaints procedure.

The Bill preserves a separate procedure for the consideration of complaints that are capable of being considered under section 24D or section 26 of the Children Act, and we therefore need to make it possible for some complaints about special guardianship support services to be considered under this procedure. We also want such complaints to come within the provisions for further consideration by the Commission for Social Care Inspection under clause 111. The most effective way of achieving that is to revoke section 14G of the Children Act, and to extend the coverage of section 26 to include those complaints, which is what the new clause does.

Work is still to be done on defining the precise nature of special guardianship support services. During the passage of the Adoption and Children Bill, the Government promised that we would consult stakeholders extensively on the development of support services for special guardianship. The definitive range of support services will be finalised only after a public consultation. We will then wish to consider which complaints about which services will be considered under the Children Act procedure because we envisage that only complaints relating to the provision of services that are directly for the benefit of a child should be considered under that procedure. That explains why we need to be able to specify the functions that will be considered under the Children Act procedure in regulations. That is consistent with the system for complaints from people provided by the adoption service. There should be parity for special guardianship.

5.15 pm

Amendments Nos. 301 to 304 are necessary because they remove clauses 107 to 110—the current complaint clauses—so that they may be replaced by new clauses 30 to 32.

I shall briefly touch on the other amendments in the group and explain why the House would be well advised to resist them. Clause 107(1) sets out in general terms what a complaint may be about. However, amendment No. 40 would broaden that provision by detailing who may make a complaint. The amendment is unnecessary and would put too great a level of detail in the Bill.

Amendments Nos. 41 to 43 and 52 should also be resisted. I understand the effect that they would have but they are unnecessary. I assure the House that we have every intention of using the regulation-making power provided by clause 107 and the other clauses relating to complaints procedures.

Amendments Nos. 44 and 47 should be resisted. They would remove the ability to make regulations to set parameters for the complaints procedure in terms of what, who, how and when, which is not sensible. It is right that the procedure has always allowed patients, or a person acting on their behalf, the right to complain if they are not happy with the service or treatment received from the NHS. Of course, other people who use or are in NHS facilities, such as visitors and contractors, should be able to raise concerns, but not necessarily under the NHS complaints procedure.

Amendment No. 45 is unnecessary because the existing wording of the Bill is sufficient to provide for the time scales and deadlines that it would create. Amendment No. 46 should be resisted because the powers in the Bill and Government new clauses 30 and 32 are sufficient to ensure that the complaints procedure will apply to all manner of services and treatment provided, subject to any exceptions thought necessary. The amendment would add too much detail to the Bill.

I understand the motives behind amendment No. 48. However, it is important for there to be a time limit so that people are encouraged to make complaints as quickly as possible while events are fresh in the memories of those involved. I appreciate that there might be extenuating circumstances if people suffer trauma or distress, so it is right and proper that there should be discretion to waive the time limit, if appropriate. Sensitivity must be used and I promise that we will consider the matter carefully when drawing up the regulations.

Hon. Members should resist amendment No. 49. I do not understand the point of accepting an amendment that would restrict the range of options available for the successful resolution of a complaint. Amendment No. 50 should be resisted and although I understand the thinking behind it, the Bill adequately covers the proposed provision.

Amendment No. 51 is unnecessary. NHS bodies are already allowed to make ex-gratia payments if a claimant has suffered a financial loss, such as expenses incurred as a result of a complaint. NHS organisations will continue to have such flexibility after we have made regulations under the Bill. Again, I understand the thinking behind amendment No. 53, but it would add too much detail to the Bill.

The provisions suggested by amendment No. 54 are already covered by the Bill. Amendments Nos. 26 and 27 are undesirable because they would provide that regulations would be subject to affirmative resolution. Opposition amendment No. 28 deals with things that are usually addressed under the negative procedure. Amendment No. 55 should be resisted because clause 111 provides for an effective, speedy and fair process. The clause, and other provisions, also cover the measures proposed in the amendment. Finally, I recommend amendments Nos. 305 to 319. They are technical, clean up the wording and are consequential on other amendments.

Mr. Burns

I assure the House that I shall not speak for long. As my hon. Friend the Member for South Staffordshire (Sir Patrick Cormack) rightly explained, the vagaries of the Government's programme motion mean that we have only 45 minutes to discuss a key part of the Bill, bearing it in mind that we were unable to debate 50 clauses in Committee because of the programme motion Upstairs. In addition, the Government have tabled four new clauses and 18 amendments, which have eaten into that time.

I shall concentrate on amendments Nos. 26 to 28. It is clear from the Government new clauses that they will once again rely on regulations to flesh out the fine detail of how the Bill will operate in practice. That has happened with many of their measures and reflects their approach to the crucial subject of social care. We all know that negative procedures are about as relevant as an ex-MP. It is difficult to find opportunities to hold the Government to account and debate such measures in detail. We can pray against them, but that is not the same as insisting on affirmative resolution, which triggers an automatic debate before measures become law.

Imitation is apparently the greatest form of flattery. My amendments try to imitate what the Labour Opposition did for 18 years when they sought to hold the Government of the day to greater account by insisting on secondary legislation that was subject to affirmative resolution. On reflection, we were probably wrong to use the negative rather than the affirmative procedure. However, having researched primary health legislation during the Thatcher-Major years, it is clear that we were prepared to make far more of the secondary legislation in our primary legislation subject to affirmative resolution rather than to negative resolution.

The Minister is new, so my speech will be novel to him. It would not be novel to the Minister of State, the right hon. Member for Barrow and Furness (Mr. Hutton), and I must apologise to my hon. Friends who heard it numerous times when we discussed three primary health Bills in Committee. I think that it gains in stature with the telling, and I am pleased that the Minister is hearing it for the first time. He kindly and uniquely for a Minister in this Government assured us in a Standing Committee last week that he was the sort of thinking man—again, unusual for this Government—who was prepared to consider the Opposition's valid points. To the utter horror of his Whip, he said that if the Opposition had a good point, he would be prepared to change the legislation.

I challenge the new Minister—a so-called thinking Minister, if that is not a contradiction in terms for this Government—to give an instant response to my concerns. I know that that is unlikely because he responded to my amendments before I had a chance to explain what they would do. However, there is time in another place for him to show how reflective—the word he used last week—and intelligent he is. He should realise that it is right that we hold the Government more to account and save them from themselves if they make mistakes in secondary legislation. He can table amendments in another place to include affirmative resolution. Much of the detail is important because it fleshes out the Bill.

Mr. Paul Burstow (Sutton and Cheam)

I shall speak briefly to the principles behind the amendments, without elaborating on the detail, as the Minister kindly outlined the purpose of our amendments for us. I entirely subscribe to the view expressed by the hon. Member for West Chelmsford (Mr. Burns) about the need for the affirmative procedure in respect of this important subject, not least because the House will not have the opportunity adequately to scrutinise this part of the Bill. We did not debate it at all in Committee and we have a minuscule amount of time in which to try to do it justice today, yet there is no doubt that independent complaints procedures that are transparent and easily accessible, and which ensure a good flow of communication between the body that is the subject of the complaint and the complainant, are an important part of improving patients' experience and the quality of care that they receive.

I shall raise a couple of points with the Minister. Can he say whether, in the regulations that the Government plan to introduce, they will stipulate training requirements for NHS and social services staff to make them aware of the complaints procedures that they have to operate, and to enable them to provide the informality that he mentioned, before a more formal complaints process begins?

Amendments No. 41 to 43 deal with whether there should be a discretionary power to make regulations, as implied by the use of the word "may", or an explicit mandatory duty for the Secretary of State to introduce regulations to establish clear complaints procedures. The Liberal Democrat view is that that should not be at the discretion of Secretaries of State, but a requirement. There should be a complaints procedure. That should not need the assurance of a Minister that powers will be exercised. It should be for the House to write into the Bill that we expect Ministers to exercise those powers, consult and introduce regulations.

The Minister says that our amendments to deal with time scales are a level of detail too far. That argument is regularly deployed by Ministers to rebut any amendments to regulation-making powers, but can he explain to me and perhaps to those out side, why it is appropriate to impose a time limit on complainants for making a complaint, but reasonable for the Government not to set time scales for each stage of the complaints process? Amendments Nos. 45 and 53 try to concentrate the minds of NHS bodies and social services departments to ensure that they do not just hit their target by responding by letter within 20 days and say that they have dealt with the complaint, but go about dealing with it meaningfully.

That brings me to a couple of questions that I raised in Committee but which, because of the vagaries of the process, never received a reply from the Minister with responsibility for these matters at the time. Where a complaint has been made—for example, where a poor assessment is made in an acute trust, which leads to an inappropriate discharge to intermediate care provided by a primary care trust, which itself fails to realise that the discharge is inappropriate and fails to readmit the person to the acute trust—is it for the complainant to navigate their way round the system, complain to the PCT and the acute trust, and work out where the complaint should be directed? Should it not be for the bodies that are the subject of the complaint to work together co-operatively so that they provide a seamless approach to dealing with complaints? Should there not be regulations to that effect?

The same applies in respect of health and social care. Increasingly, where services are integrated and provided seamlessly, it becomes less clear whether complaints should be addressed to social services or health departments. The regulations need to clarify that. I hope the Minister can give us some reassurance on those matters. We shall return to some of the amendments at later stages of the Bill. Hopefully, in the other place, there will be sufficient time to ensure that we get adequate responses to our concerns.

5.30 pm

Sir Patrick Cormack

There may indeed be some time in the other place, but that is no answer to those of us who are concerned about this place. While I welcome the Minister to his portfolio—he comes to it with a reputation as a thoughtful and hard-working man and I wish him every success—he must be ashamed of himself for what he had to do today. He had to gabble through, reading every last word, not only on the details of what the Government are proposing, but prepared replies on all the amendments that had not yet been spoken to by my hon. Friend the Member for West Chelmsford (Mr. Burns) or the hon. Member for Sutton and Cheam (Mr. Burstow). That is not only an insult to Parliament, but an insult through Parliament to every constituent who sent us here.

I do not blame the Minister individually. He is working to orders, as he made plain in replying to an intervention. He cannot yet make the decisions, but no self-respecting parliamentarian, whatever his or her views and whatever party he or she belongs to, could be anything but ashamed that this is how Parliament deals with a Bill of extreme importance.

I do not make these remarks merely as somebody who is opposing the Government. Indeed, I did not oppose them in the first Division. Neither do I speak having never opposed my own Government. Although the guillotine was generous in comparison with today's, I remember throwing down my papers and refusing to vote on Third Reading of the NHS reform Bill introduced by my right hon. and learned Friend the Member for Rushcliffe (Mr. Clarke), as I felt that Parliament was being badly treated. However, if Parliament was being badly treated then, it is being totally abused now, and Ministers should be thoroughly ashamed of themselves.

When we look at the selection list, we see that there are four new clauses and about 40 amendments relating to the crucial subject of complaints procedures, which affect so many of our constituents. There are issues such as guardianship, but the Minister gabbled through that bit at such a rate of knots that, quite honestly, I could not understand what he was saying and I shall have to read it in Hansard tomorrow. Of course, I shall do so, but that is not good enough. When we have dealt with the current group of amendments, and although we have to finish at 5.50 pm, we must still deal with standards for health and social care, provision of health and social care in cross-border areas and registration and regulation of social care services and other services for children—and this Government are supposed to be child-friendly.

Madam Deputy Speaker, this is really not good enough. I was grateful to you for the thoughtful and considerate manner in which you replied to my point of order, but unless the voting time can be taken out of such programme motions, we may as well all pack up and go home, and show people out there how little care, concern, consideration and deliberation we give to issues that affect their daily lives.

I sit down in total disgust at the way in which this matter has been handled.

Dr. Ladyman

I shall be very brief in answering the points that have been raised. I hear what the hon. Member for South Staffordshire (Sir Patrick Cormack) is saying and I shall certainly reflect on his thoughts and his admonition to me.

The hon. Member for West Chelmsford (Mr. Burns) pointed out that a prayer against could be used to secure the negative procedure, which puts in the hands of the House the decision on whether these matters are debated. He also noted my assurance that I would reflect on points made by the Opposition and be prepared to change the legislation if they made a good point. He will recollect that I said that I thought it highly unlikely that they would come up with any such points that we had not thought of. None the less, I confirm that I shall reflect on everything that the Opposition say to me.

I can assure the hon. Member for Sutton and Cheam (Mr. Burstow) that we will consider the possibility of training in the regulations. We are determined that the two organisations will review complaints and carry out reviews in a seamless fashion. Indeed, the legislation requires them to work closely together, so I hope that people who complain will get such an assurance. We will also consider time limits for each stage of the procedure during consultation on the regulations.

Question put and agreed to.

Clause read a Second time, and added to the Bill.