HL Deb 07 March 1967 vol 280 cc1358-83

8. Action taken on behalf of the Minister of Health or the Secretary of State by a Regional Hospital Board, Board of Governors of a Teaching Hospital, Hospital Management Committee or Board of Management, or by the Public Health Laboratory Service Board.


My Lords, I beg to move the Amendment standing in the names of myself and my noble friends, to omit paragraph 8 of Schedule 3. I do not think I need to say a great deal on this Amendment, since it was debated here on the Committee stage and also very fully in another place. I think the onus lies on the Government to justify the inclusion of this paragraph in the Bill, and it seems to me that they have not yet discharged this onus. I do not think it can be justified by arguing, as has been argued in respect of the nationalised industries, that in the case of hospitals and hospital boards the Ministry are not answerable to Parliament: it explicitly concerns action on his behalf in this case. They cannot, I think, be made analogous to local authorities, since their Boards are appointed by the Minister and there is no element of democratic responsibility whats over in their case. It cannot be argued that it will provide small, and it has been argued vexatious, complaints of negligence against doctors, since the Parliamentary Commissioner has the protection of Clause 5(2) for cases where there is a remedy of law.

I personally do not believe in the validity of the argument that it would bring in cases of a clinical judgment for which the Parliamentary Commissioner would be unfitted to adjudicate, not because he could not equip a staff which was there qualified to deal with them, as he might have to do in other complicated professional cases, such as technology, but because the Parliamentary Commissioner is only empowered to deal with cases of maladministration explicitly. Where he spots cases of contested technical judgment, cases where he can see no evidence of anything other than a decision taken in perfectly good faith, then the Parliamentary Commissioner will surely simply opt out of the business of offering an opinion or a decision at all.

I do not accept the argument that the present complaints procedure is sufficient. Recently the Government have taken to vaunting it a bit. I do not accept this, because it is perfectly clear that this procedure is not generally known to the people who would complain at the times that they would complain, nor do I think it ever could be made known. Moreover, it operates on an ad hoc basis, and is established, as often as not, by those against whom the complaint is indirectly aimed.

It has been argued by the Government that to exclude this paragraph and to include the Regional Hospital Boards would create the anomaly of including in the scope of the Bill Regional Hospital management, while excluding the general practitioner service and the health service which are administered by the local authorities. But, in the first place, we already have this anomaly in so far as we have hospitals in this country already directly responsible to the Minister of Health. This was not a principle considered sufficient to warrant the exclusion of, for example, matters of transport from the Bill, where there are a variety of different roads some of which are responsible to the local authority and therefore outside the scope of the Bill, some of which are responsible to the central authority and are within the scope of the Bill. And, finally, to argue that it would be unjust to seek to remedy certain injustices on the ground that one is unable to remedy them all, seems to me sufficiently perverse to provide one with an adequate reason for rejecting this entire Bill.

On the other hand, it has also been argued by the Government, somewhat ambivalently I think, in view of the last argument I have mentioned, that the Parliamentary Commissioner would simply become overburdened with complaints. In the first place, this is a direct admission that this field is a fertile source of public grievance, and in my mind that in itself gives an overpowering reason to include it in the scope of the Bill. Secondly, I assume that the worst result of this, if the Government are right, which they might be, would simply be delay. I do not suppose that the Parliamentary Commissioner would physically collapse, like the camel under the last straw; and I think that the delay, which would be the worst thing that one could expect, is something that one should mind less about and something which the public would understand more readily than the total exclusion of this source of grievance from any chance of remedy at all.

In conclusion, I would repeat that the Government have not made a case; and, finally, I would point out that they gave no reason here on the Committee stage why the reconsideration which they had promised on the Report stage in another place that they would give to this paragraph has produced no change of mind on their behalf, and there has been no improvement in the arguments they have used. If the Government make a better case this time, well and good. If not, then I think it would be a strong argument for pressing this matter to a Division. I beg to move.

Amendment moved— Page 14, line 23, leave out paragraph 8.—(Lord Reay.)

4.25 p.m.


My Lords, may I add a word in support of the case which the noble Lord, Lord Reay, has so cogently put from the Liberal Benches. This matter was, of course, as he said, discussed at some length on the Committee stage, and therefore I need not recapitulate the arguments I used then. I should like to say to the noble Lord, Lord Shackleton, that I have most carefully studied the arguments which he then gave us, and I recollect their being given in his most persuasive tones. But, in brief, his answer really amounted to "not yet", and I noted that part of his answer rested on the opinion of the Ombudsman himself, given informally of course. While I recognise that it is an unusual advantage for Parliament to have the advice of an officer before it appoints him, it still is not enough to persuade me that Lord Shacklelton was right.

May I just briefly recapitulate the history of this, which I think lends weight to the statement which Lord Reay made that there is a good deal of public feeling about this, and that there was the quite general expectation that the Hospital Service would be included in the scope of the Parliamentary Commissioner. Before the 1964 General Election, Labour Party spokesmen clearly indicated that they meant to bring this within his scope, and in particular I refer to an article written by Mr. George Brown in the New Statesman, which specifically stated this, and which was referred to in another place in the debates there. Therefore, it was not surprising that there was general disappointment when the Bill was originally published with this exclusion.

When this point was debated on the Committee stage in another place, the support given for bringing the Hospital Service within the scope of the Parliamentary Commissioner was sufficient from the Labour Benches, on a vote, to bring it hack into the Bill; and there- fore the Bill arrived back on the Report stage in another place with the Hospital Service included. There was then a considerable debate on the subject, and the Lord President of the Council, who moved to exclude the Hospital Service again, was allowed his Amendment, but it was late at night and only on the undertaking, to which Lord Reay has already referred, that this point would be reconsidered here when the Bill reached this noble House. In fact, every speech that was made from the Labour Benches, except the Front Bench, in another place on the Report stage urgently pressed the Government to include the Hospital Service.

I think all this indicates that there really is a considerable weight of public opinion expecting that the Hospital Service will be included within the scope of the Parliamentary Commissioner. If we now accept this Amendment, so that the Hospital Service is included, by excluding this subsection, we shall at any rate have declared our opinion from this House, and we shall also give another place the opportunity either to agree with us, or if they do not agree, to take it out again. But I feel that both the history of it and our general impression of the expectation is such that to include the Hospital Service really is justified. I hope that the noble Lord, Lord Shackleton, will continue in the gracious vein that he and his noble friends have been in this afternoon of conceding the good cases that have been put to them. I have much pleasure in supporting the Amendment.


My Lords, I have already declared an interest in this matter as the Chairman of a Regional Hospital Board on the Committee stage, and, contrary to the views of the last speaker, the noble Lord, Lord Nugent of Guildford, I am a Back-Bencher and am against the Amendment; so there are certain Labour speakers who do not agree with the Amendment. I think that the complaints which arise in the Hospital Service are unsuitable, too diversified and mostly too trivial to be appropriate for ventilation to the Parliamentary Commissioner. Incidentally, nearly all the complaints have some sort of clinical element to a greater or lesser degree.

The responsibility for running the Health Service, which is a vast and complex organisation, spending over £1,000 million every year, is divided between three sets of authorities: the local authorities, who provide the domiciliary and welfare services; the executive councils, who administer the family practitioner side; and the Regional Hospital Boards, who are charged with running the Hospital Service through their hospital management committees and boards of governors of teaching hospitals.

A patient normally finds his way to hospital via the medium of one of the other branches of the Health Service. The present Bill is so drawn as to exclude from its scope all local statutory bodies, and thus all three parts of the Health Service are outside the Bill; the local authorities are executive councils by definition, and the hospital authorities by inclusion in Schedule 3. If, therefore, the Hospital Service is to be brought within the Bill we shall have the unsatisfactory position that whereas a complaint could embrace all three parts of the Health Service, the Parliamentary Commissioner would have to confine his investigations to one part only. There seems to me to be no particular merit in this kind of arrangement and it might have the effect—and this is a very important consideration—of weakening the strong ties between the three branches of the Service.

It has become the fashion to attack the Hospital Service and it has been very difficult to obtain a fair picture in reply to criticisms. In fact, I myself have now had, very reluctantly, to insist that, so far as my Regional Board is concerned, they will only agree to broadcast in future under the auspices of the B.B.C. television services in a live programme. Our experience in the past with this medium has been, to say the least, very unfortunate. I have no complaint against the Press, having always found them very willing to publish my letters and to give a fair showing to any member of the Board or the Board's staff who has attempted to correct any unfair impression that might have arisen. For the record, I would say that the Hospital Service is a thriving organisation which is in no danger whatsoever of "folding up" or grinding to a halt "as some people seem to want us to believe. Well-established channels of procedure for complaints are already in existence, and when the Ministry of Health, as mentioned by an earlier speaker this afternoon, issued a general scheme for guidance in the matter of complaints in the early part of 1966, it was found that the Board's arrangements already in operation complied with their requirements.

We have recorded what has happened under the recommended procedure, and I think the figures will be of interest and enlightenment to the House. These figures relate to the nine months April to December, 1966. In my Board's area there are about 200 hospitals of all kinds, and the total number of complaints during the nine months' period was 358. Of these complaints, 51 came direct to my Board and 307 through hospital management committees. Forty-six of the complaints were found to be of a serious character, 216 not serious, and 96 trivial. Of this total it was found that 168 were justified and 190 unjustified, so that it will be felt that a fair hearing was given to the complainants one way or another. It should again be, stressed that the majority of the complaints had some sort of clinical element. It is of course very regrettable that 168 complaints were found to have substance, but the numbers should be viewed against the background which I will now give to the House. That background is: 263,000 in-patient admissions; 407,000 out-patients; 401,000 casualties, together with a further 799,000 attendances in accident and emergency departments. These figures do not include attendances for such things as X-ray and physiotherapy treatment.

The noble and learned Lord the Lord Chancellor in his speech on an earlier stage of the Bill noted very rightly that one always has to envisage a considerable "lunatic fringe". The ratio of this section of the public would not be smaller among hospital patients than elsewhere, because we actually cater for a large number of patients who are nowadays defined as "mentally disturbed". The word "lunatic", of course, has no place in the modern medical vocabulary. Complaints from this kind of patient are sometimes difficult to resolve, and I should not like to wish the burden upon the Parliamentary Commissioner. I think I ought to say that we successfully cure very large numbers of these unfortunate people.

Speaking personally, I have no particular views in the matter one way or another. I am just concerned with the practicalities of the situation at present. I have tried to make it clear that the Regional Boards and the Ministry of Health have well-established channels for dealing with complaints, and my impression is that the complainants are fully satisfied that their complaints have been thoroughly investigated.


My Lords, did the noble Viscount give a figure in relation to the mentally disturbed?


No, I did not give a figure.


Could the noble Viscount not give one?


No; it would take a lot of research. It seems to me that unless one is willing to consider the Department of the Parliamentary Commissioner as containing considerable administrative staff, comprising professionals such as doctors and nurses, one must feel that the Amendment would not be practicable. I speak on behalf of one Regional Board only, and there are altogether 15 of them, so that presumably the statistics which I have quoted could be multiplied pro rata. It is perhaps fair to say that mine is one of the larger Boards, but even if one were to multiply the total number of complaints in our Region by 12 instead of by 15, they would number something over 4,000 altogether in the nine months'period—that would be the potential. I hope that I have been able to convince some noble Lords of the difficulty of the matter and the disadvantages that would result if the Amendment were to be passed. I trust, therefore, that the noble Lord will see his way to withdraw it.


I must say this in response to what the noble Viscount has said. He stated that a great many of the complaints would be of a trivial and unimportant nature; but he must remember that the complaints are going to reach the Parliamentary Commissioner through Members of Parliament, and surely the whole purpose of making that provision is so that those Members shall be able to weed out the trivial from the important complaints. I think one must admit that there have been important complaints at times—not very frequently, I am thankful to say—against certain maladministration in the Health Department. For that reason, I sincerely hope that this Amendment will go through.

4.39 p.m.


My Lords, as I left the Hospital Service some 18 months ago, I think that I have no longer any interest to declare. After a good deal of thought and study—because in many ways it would have been easier for me to take a contrary view—I have come to the conclusion that I ought to speak and, if necessary, vote against the Amendment. I should be very unhappy if, by saying this, it was thought that I was trying to take the side of the doctor against the very proper rights of his patient to complain of his actions. This would be inconsistent with the views I have held all my life. I have indeed always taught my students that the patient is nearly always right, and in various correspondence which crops up from time to time from the Patients' Association I frequently find myself on the side of the patients.

I am somewhat swayed, though by no means entirely, by arguments that to include the hospital service might overload the Parliamentary Commissioner at a very early stage, and make his job very difficult. There are only two arguments which seem to me to be serious on which I would personally reject this Amendment. The first is that I believe—and in a way I think the noble Lord, Lord Reay, agrees with me—that this Bill is not meant to cover the actions of individuals pursuing their proper professional activities. Also I believe, with others, that with hospital complaints it will be difficult, or almost impossible in many instances, to separate the clinical from the purely administrative. Take, for instance, from many instances which could be given, the case where a mother is prevented from visiting her child. The clinical question immediately arises, "Was it in the interest of the treatment of the child's illness that the child should not have been visited by its mother?" I can think of nothing more calculated to infuriate a complainant than to find that while half his complaints can be dealt with by the Parliamentary Commissioner, the other half cannot.

The noble Lord, Lord Reay, has said that the actions of doctors would in any case be excluded—I do not think he said exactly this, and I hope that I am not misinterpreting his remarks—because the patient has the right of appeal to the law. But, of course, this arises only in cases where the patient has, or claims to have, suffered harm through the wrong action of a doctor. Unfortunately, there are a number of cases where some members of my profession act in an imperious and, maybe occasionally, arrogant way, but the patient has not suffered material harm and could hardly go to law with such a case. It may be that the professional activities of, for instance, a hospital architect could be interpreted as actions on behalf of central Government, but in my view to equate the actions of doctors and nurses in caring for their patients with administrative actions carried out on behalf of central Government would be to introduce a new and possibly disastrous look at professional duty.

During all the years when I served in the hospital service, when I was treating a patient it never occurred to me that I was performing an administrative act for or on behalf of central Government. It may be that unknowingly this was precisely what I was doing, but I am glad to say that it never occurred to me during a consultation. If I take this view as a responsible doctor or ex-doctor. I have to be satisfied that the patients' rights are met in another way. The circular issued by the Ministry of Health a year ago goes some way to meet this and should be given a further trial.

My view—and this really brings me to my second point—is that if the patients' rights are not adequately met by present regulations this is not the way to put them right, for the reason already given—if for no other—that it separates different parts of the profession. Again, I can think of little more infuriating to the complainant than to find that the part of his complaint which relates to the hospital doctor comes within the ambit of the Parliamentary Commissioner, but that after being discharged home to his general practitioner it is no longer possible for the Parliamentary Commissioner to deal with exactly that same complaint or the continuation of it. Finally, I am comforted to remember that should noble Lords in a majority agree with me, and should it later be found that we were in fact wrong, this can be amended by an Order in Council.

4.46 p.m.


My Lords, I feel very strongly that this Amendment ought not to be pressed to a Division. With respect, I think that it would do a great deal of harm to have it pressed to a Division, whatever the result. One or two factors must be considered here. First of all, all of us who have served in another place know the type of complaint which one receives about the hospital service. I do not want in any way to exaggerate—in fact, I want rather carefully not to exaggerate; but quite a high proportion of complaints, at any rate, fall into one of two classes. One is of complaints which have either little substance or no substance, and are often motivated by some deep element of emotion which leads people to feel things in a way which, if they were considering the position more calmly, they might not feel.

The other class of complaints seem to arise from a sort of general suspicion of doctors. I respectfully entirely agree with what was said by the noble Lord who has just sat down, who knows more about this, or at any rate from a different angle, than I do. The Ombudsman's business is to deal with maladministration, and if a doctor makes a mistake in diagnosis or treatment, or in any other exercise of his professional skill, clearly that is not maladministration. Who is he maladministering—himself or what? So that if the Ombudsman had any responsibility in this matter, he would have to confine himself to maladministration and to keep off the whole clinical aspect of the matter. There would have to be not only the true distinction, but also the distinction as it might appear to the patient concerned, because all these cases—and one must recognise this—contain a very strong element of emotion, suspicion and the rest of it. Even where there is a wholly reasonable case, one cannot put that aside.

That is the first point and, as I see it, it involves a distinction which, whatever reality it may have in the law or in the terms of an Act of Parliament, has singularly little reality in what we are now considering; that is, the mind of the patient affected. He does not draw this kind of distinction, and if the Ombudsman is obliged to draw it it will make things very difficult for him. I use the word "Ombudsman" (I know that it is not the right one) for the purpose of convenience.

There are two other points which seem to be rather conclusive in this case. The first is that no one has yet said, except very tentatively, that there is anything wrong with the working of the present arrangements, which have been working for some considerable time. I quote from a Written Answer given by the Minister in another place on December 8, 1966. The object of these arrangements, he said, is: to ensure that all such complaints"— that is to say, complaints by and on behalf of patients in connection with the hospital service; it is very wide— are received sympathetically, dealt with promptly, and seen to have been fully and fairly discussed."—[OFFICIAL REPORT. Commons, 8/12/66, col. 372.] Leaving aside for a minute the distinction between maladministration and lack of professional skill or judgment, what more could the Ombudsman do than is already being done in this way? The noble Lord who moved this Amendment fully realised this, because all he said about it, I think—and I took a note of his words at the time—was to object that the present procedure is not widely known. I do not know how that can be. I should have thought that if anyone wanted to complain he would find out how to do it quite quickly, and that it was in everyone's interest—at least, everyone who was acting properly in the matter—to see that he knew at once the right way to get his complaint dealt with. After the part I have quoted, there is a whole column of the OFFICIAL REPORT of another place setting out the procedure. I will not weary your Lordships by reading it but it sets out a quite careful procedure designed to deal with different types of complaint, both as regards their seriousness and as regards their general character.

I think I am allowed, in this somewhat personal Chamber, to say that we have a remarkably good Minister of Health at the moment, and I think that everybody, apart from Party, recognises it. I am quite certain that the present situation would not have continued for so long as it has done if there were obvious improvements to be made. I am sure the Minister would have known about any deficiencies. He is the kind of man who finds out for himself, and he is quite undeterred by any minor obstacles in his way, as everyone knows. I noticed that in another place there were a number of complimentary references of this character—and that is important when we are considering what is happening at present.

My Lords, what we are really considering to-day, as I see it, is not a question of whether this type of complaint should never be investigated by the Parliamentary Commissioner (to give him his right name) but whether this should be stated in the Bill at the moment. This particular paragraph, of course, was put back on Report stage in another place, and, at the same time, in the course of the same sitting, a clause was introduced to allow the Minister of the day, by an Order subject only to the Negative Resolution procedure, to take it out. That is to say, if you take the paragraph out, you let the letter of it in, because there are excluding paragraphs; and accordingly it would be open to the Minister of the day at any time to make this Order, to put back what it is now sought to exclude from the Bill as it is, and thereby to do what is intended to be done by this Amendment.

But there is a difference. This is an experiment (I am talking about the Parliamentary Commissioner generally, and this Bill), as I think was generally admitted by everyone on Second Reading. In the circumstances, I should have thought that, given the necessary, inevitable character of the complaints; given the difficulty of dividing in practice between maladministration and lack of professional skill or judgment; and given also the fact that there is other machinery working at present, and that it does not follow that either the other machinery or what the Parliamentary Commissioner might do would be the ultimate solution—given all that, and this being, I repeat, an experiment, I ask: is it wise to try to put this rather doubtful field of investigation into the Bill now?

It seems to me that it would do a great deal of harm. We are dealing not just with ourselves, not even just with the medical profession. We are dealing with a large number of sick, hurt and aggrieved people, and one wants them to be dealt with in the right way. One certainly does not want to see a way which may be the wrong way put into the Statute when there is machinery for putting it in later if a further trial should prove that it would be proper to insert it. I beg your Lordships to bear in mind that it is a further trial of two things. The first is how the experiment of the Parliamentary Commissioner works—incidentally, if he were to try to do what is now proposed, it would add considerably to his staff and his cost—and the other is what exactly is happening in connection with the present procedure, as was described in the Written Answer on December 8.

I go one stage further. I think that in the world we live in to-day, in this country, the professions, be it the teachers, the lawyers or, in this case, the medical profession, are very properly subject to review. I think one must be very careful about this. One is dealing with matters of very great importance, not only to the individuals concerned but to the community, and one is dealing with a facet of our life which seems to me to be singularly difficult to deal with and singularly easy to make a mistake about. I would say one thing to your Lordships—and I am afraid that I have been a little long: I earnestly hope that nobody will think that this is a way of "getting at" the Government, or of defending the Government, or any nonsense of that sort. It seems to me to be a very serious matter. I have no doubt whatever of the right answer, and I earnestly hope that there will not be a Division, whatever the result might be.

4.57 p.m.


My Lords, I want to say just one word—and, as the House will know, I am chairman of a hospital management committee. We get complaints. Of course we get complaints—all hospitals do. But usually one finds that these are due to misunderstandings, perhaps between a doctor and a mother or father; or it may be that one or other is a little irrational. Parents and friends are always rather irrational when their loved ones are in hospital.

What happens is that they either write or come to me, or to the group secretary, and we discuss the matter. Usually, with just a little understanding, we can clear the matter up in a very few moments. I think it would be disaster if an irrational person, worried about somebody in hospital, with some small complaint, could rush off to the Ombudsman so that it all came to light, with the danger of the matter being blown up to such a degree that it was difficult to settle it. If it can be left with the hospital management committees and the boards, and so on, I am sure that that is by far the best way. I hope that this Amendment will not be pressed.


Before the noble Lord sits down, may I point out that nobody can go "rushing off" to the Ombudsman? If anyone feels he has a complaint he must first rush off to a Member of the House of Commons; and a Member of the House of Commons will not rush off to the Ombudsman if he thinks that the matter can be dealt with more easily without the necessity for the Ombudsman to investigate it.


I quite understand that, but surely it is easier to come straight to the hospital concerned. Some people may not realise this and will go straight to the Member of Parliament, who will feel that he has to take it on further. I am sure it is right that this should not occur.


Even if the question of medical skill is excluded? It appears to me—and I think it will appear so to others—that there are a number of things that can happen in the Health Service in which the Ombudsman might well intervene. Such a case recently came to my notice. It concerned a woman with a broken leg. When she saw her doctor there was no inquiry as to the home circumstances, and no notification to the district nurse. Later, the doctor ordered physiotherapy, which was only available five miles away. There was no mention of transport. When the question of transport arose the woman was told, "Oh yes, there is plenty of transport". In fact, although ordered the transport frequently did not turn up; and there was no machinery whereby the doctor could know that the woman was not getting the physiotherapy that he had prescribed. I think that might be within the province of the Ombudsman; it is purely administrative.

5.2 p.m.


My Lords, I think this paragraph in Schedule 2has probably caused as much controversy as any issue we have debated in the Bill. It has certainly given rise to a great deal of discussion. I hope that in the process of this discussion there has been a certain amount of enlightenment seeping in, although I failed to detect this in the speech of the noble Lord, Lord Reay, who I thought moved his Amendment in somewhat excitable language.

I should like to make another attempt to explain to him the purpose of the Bill—and this is a Bill that the Government have introduced. It is to enable the Parliamentary Commissioner to investigate complaints of maladministration in connection with action taken by or on behalf of a central Government Department and authorities listed in Schedule 2 of the Bill. It has been made clear all along that the scope of the Commissioner does not extend to services for which there is an autonomous local statutory authority. Indeed, no such body is listed in Schedule 2 of the Bill. It is not included in the Long Title of the Bill, although that could be amended. I should like to apply this basic principle to the subject we have been discussing to see how it affects the various bodies which are responsible for the administration of the National Health Service. This is not without relevance to the remarks of the noble Earl, Lord Fortescue.

As your Lordships know, there are three main parts to the National Health Service; and my noble friend Lord Addison dealt with them in a very knowledgeable speech. They are: the general practitioner services arranged by the local executive councils; the local health authority services, run by the local authorities; and the hospital service, run by the hospital authorities. Both the executive councils and the local authorities are local bodies set up under the National Health Service Act. As such they do not act on behalf of the Crown, and they are therefore automatically excluded from the scope of the Commissioner. Hospital authorities are also local bodies set up under the National Health Service Acts. Their staff are not civil servants any more than the staff of local health authorities or executive councils—or for that matter general practitioners, opticians, dentists or chemists who work within the Health Service. They are not just the local offices of a central Government Department. I stress this again. They are not part of central Government administration in the way that the Tax Office is or a local office of the Ministry of Labour or Ministry of Social Security. But technically these hospital authorities do act on behalf of the Minister of Health or the Secretary of State for Scotland. To ensure uniformity of treatment therefore it was decided—though this was not the sole reason—to make specific provision to exclude hospital authorities from the scope of the Commissioner—hence paragraph 8 of Schedule 3.

But first let me make it clear that this exclusion in no way affects the position of the Ministry of Health itself so far as the Commissioner is concerned. Like any other central Government Department or authority listed in Schedule 2, any failure within that Department in the exercise of their administrative functions in connection with any part of the National Health Service, including the hospital service, will be susceptible to investigation by the Parliamentary Commissioner. Among these functions will be the Ministry's responsibility for the special hospitals—Broadmoor, Rampton and Moss Side. Also included in paragraph 8 is the Public Health Labaratory Service Board; but since no noble Lord has referred to this, I will not take up your Lordships' time by dealing with it fully.

The most important of the reasons against including the hospital service is that it is only one part of the National Health Service. The noble Lord, Lord Reay, has said that it was unsound to argue that if you cannot do justice to all you must refrain from doing justice to one part only. This is an attractive argument, but this is not the sole reason for excluding the Health Services. I will try to give the reason for this. There would be really serious practical difficulties if we were to apply the provisions of the Parliamentary Commissioner Bill to one part of the Health Service. In most cases, patients receiving hospital treatment normally begin by consulting their family doctor. Following the completion of hospital treatment they may need to avail themselves of the services provided by the local health authority. Thus, for the same ailment, patients may need to use the services provided by all three parts of the National Health Service—and not necessarily one at a time.

In the event of complaints involving the whole chronicle of events it would be a really startling proposition if the Parliamentary Commissioner were able to investigate only that facet of the complaint relating to the services administered by the hospital authority and not the services which are the responsibility of the local health authority and the local executive council. Even this might in certain types of cases—psychiatric and geriatric, for example—prove to be difficult to do in practice because the borderline of responsibility between the hospital authority and the local health authority is often not easy to distinguish. A further point which must be borne in mind is that by the very nature of the service concerned, complaints—and this has been made very clear by a number of noble Lords; and it was very valuable to have had the opinion particularly of the noble Lord, Lord Platt—will frequently involve problems of clinical judgment.

I suggest that there are special difficulties here. Whereas it is possible to conceive of a system in which they can be overcome, the difficulties are of a kind which we must face up to before we amend the Bill in the way suggested. When the Minister of Health or the Secretary of State has before him a complaint about a hospital he is able to call on the advice of his own medical staff; and, if necessary, the staff can comment on what is said from a clinical point of view. In theory one could also give the Parliamentary Commissioner some medical staff and he could be advised by them. But we should then have no less than three successive medical opinions on hospital cases involving clinical judgment. There would be the opinion of the hospital doctors themselves; there would be the opinion of the Ministry of Health doctors, and there would then be the opinion of the Parliamentary Commissioner's own medical advisers in a matter of professional clinical judgment. If there were a difference of opinion, it would be very difficult to say who was right and who was wrong, and there would certainly be no hierarchical relationship. It is rather important to stress that there would be no hierarchial relationship to settle the matter. We have to recall that central Government is hierarchical, coming up to the Minister. Here we have a very different type of organisation.

Another alternative would be that, when the Commissioner came up against a clinical question he would say that he had no expertise in that field and must therefore forbear to comment. He would have to accept the word either of the hospital service or of the Ministry of Health doctors. This again does not seem to be the kind of arrangement which the Bill contemplates, or indeed which I believe any noble Lord would wish, and it seems unlikely that it would be accepted without protest by claimants and be damaging to the image and reputation of the Parliamentary Commissioner.

Clinical judgment enters into so many hospital complaint cases that the inclusion of hospital authorities in the Bill, on the basis that the Commissioner could do nothing about clinical judgment, would really lead to its being regarded as a sham. And it is important to bear in mind that there is a very wide variety of complaints which hinge on the issue of clinical judgment. I have already mentioned that the Commissioner will have within his scope certain directly administered State institutions, and questions of clinical judgment might arise. But these are exceptional and they are organised in a very different way from the National Health Service. If it is suggested that the Hospital Service is brought in only in respect of complaints which concern non-clinical matters, I should like to ask the noble Lord how he distinguishes between a clinical and a non-clinical matter. Frequently they are inextricably mixed. Even if we were able to isolate the non-clinical elements of a complaint, they could seldom be investigated effectively without also going into the clinical side.

For instance, a very obvious complaint about whether a patient needed treatment would involve a clinical judgment and could not be separated from a dispute as to whether the facilities of the hospital were offered or denied to a patient. There might be a complaint from a patient that he had had to wait for a long time in the out-patient department and that the appointment system was faulty. But the effectiveness of any investigation into the matter would be limited severely if there was no assessment of the clinical considerations likely to underlie the delay. For example, priority might have to be given to emergency cases, and the doctors might possibly be called away suddenly to visit patients in a ward; or there might be some event which was not foreseeable.

I am not saying there is no maladministration in this field; I am saying that in many cases it would involve a question of clinical judgment. There might be a complaint about delay in admitting a patient to hospital several weeks ahead of his operation, or there might be complaints of favouritism. The question whether a patient should be admitted to hospital, and if so when, rests on clinical judgment, not only in relation to the patient concerned but also in many cases in relation to the needs of other patients.

Under Section 3 of the National Health Service Act 1946 the duty of the Minister to provide a hospital service is limited to such as he considers necessary to meet all reasonable requirements; that is to say, there is a discretion. There might be a complaint that a particular patient had been refused some treatment, or some drug, at a particular hospital, but again this is fundamentally a matter of clinical judgment in regard to the needs of the patient.

I would make the further point, which has already been made by noble Lords (particularly in a notable speech by my noble friend Lord Mitchison, and there were interesting references by the noble Lord, Lord Grenfell, from his experience), that there is already a system for dealing with complaints concerning the Hospital Service. This has recently been developed further. As my noble friend Lord Mitchison said, a circular was issued by the Ministry of Health giving comprehensive guidance on the procedure to be followed in the handling of complaints, and there is power in certain circumstances to set up an ad hoc independent tribunal including both a doctor and a lawyer. Again, I am not saying that this procedure could not work alongside that of the Parliamentary Commis- sioner, but I would strongly urge your Lordships to give this system a trial and not complicate the Bill at this stage.

My Lords, if we bring this large area into the Bill, we are undoubtedly adding very greatly to the burden of the Parliamentary Commissioner. Apart from the arguments on merit which I sought to put forward, I would urge your Lordships to confine the activities of the Parliamentary Commissioner to the central Government at this stage which has always been the purpose and object of the Bill. I know that the Liberals have attempted to bring in local authorities, and that they have a somewhat enthusiastic desire to extend the Bill much more widely than was originally intended. In this matter they can speak with a clear conscience because when they were the Government—which was a very long time ago—they did not put themselves in the position of refusing to introduce a Bill to set up a Parliamentary Commissioner. But I find it rather surprising that the Conservatives should support them.

As noble Lords have pointed out, this is not a Bill on which there should be Party political controversy, and I am quite certain that were the noble Lords who are supporting the Liberals in office to-day, they would not dream of imposing this additional responsibility on the Parliamentary Commissioner. Do they in fact want doctors, who operate as professionals in their own field, to become in this respect like civil servants? There was an absolute guarantee to doctors when the National Health Service was set up that they would not be civil servants. The procedures applying to civil servants are the kind which are appropriate for administration and which would not be appropriate for doctors.

I hope very much that if the noble Lord, Lord Reay, decides to press this Amendment to a Division your Lordships will reject it. This is a Bill which is generally welcomed. At times the welcome has been a bit muted, but I hope that we shall give it a send-off. The Government have been pretty accommodating in your Lordships' House. We have treated matters here purely in terms of the practical operation of the Bill. This Bill could come into effect very soon. If this Amendment is accepted and not subsequently rejected by the House of Commons it will undoubtedly mean that the setting up of the Parliamentary Commissioner will be delayed. We hope that the Parliamentary Commissioner will begin to operate possibly round about April 1, and I make a plea to noble Lords opposite not to vote for this Amendment.

This is a matter of practicality only, this is not a major Party political issue. I cannot see any virtue in sending this back to the Commons only to have them reject it again. If your Lordships decide to divide on this Amendment, I hope that as many of your Lordships who have listened to the arguments from the noble Lord, Lord Platt, and the noble Lord, Lord Grenfell, and others, will bear in mind that the great weight of experience in this House has been against the inclusion of the Hospital Service in the Bill. I hope that the Government will be supported and that we shall not have to send this Bill back with this Amendment to another place.


My Lords, before the Minister sits down, may I say that if he uses the argument that doctors must not be treated as civil servants, will that not prevent him from ever acceding to a proposal of this kind?


My Lords, if the noble Lord would like me to go on with this I will do so. The objections are very serious. There has been no discussion with the doctors. If a doctor works as a civil servant, he is a civil servant, but a doctor in the hospital service is not a civil servant. I must express my personal opinion. Although undoubtedly this Government and subsequent Governments will consider this again, I am very doubtful whether the hospital service can be brought within the ambit of the Parliamentary Commissioner as at present envisaged.


My Lords, I do not think that it will be necessary for me to attempt to meet the arguments of the noble Lord, Lord Shackleton. I have already stated my opinions on the questions to which he replied, and it is not surprising that nothing new has come up. There is one question I should like to ask the noble Lord. He implied that it has all along been the intention in the Bill that local statutory bodies and the hospital service should be excluded, and also that other Amendments would be necessary if this paragraph were deleted. Is that his current opinion, or is it undoubtedly necessary?


My Lords, I do not understand the noble Lord's reference to other Amendments.


In the Long Title, for example.


My Lords, I drew an analogy with the local authorities and pointed out that the hospital service is dissimilar to the central Government Departments, which are servants of the Crown, and that hospital boards are not like regional offices of a Government Department. None the less they operate on behalf of the Ministry of Health and technically they come within the Bill and the Long Title.


My Lords, the noble Lord inferred that it was a technical matter, but I think it is debatable whether it is technical. The effect is that they are answerable to a Minister in Parliament. They are not within the ambit of the local authorities in so far as there is no democratically elected element in their management. To this extent they are unique, but the argument still remains for considering that the Parliamentary Commissioner's power should apply to them and to their activities. The noble Lord envisaged the clinical difficulties which we must face. I must accept that a great many complaints will be concerned with these difficulties. The Parliamentary Commissioner will not investigate these. He will see inmost cases that there is no reason to suspect that a decision taken by a doctor in a case would not be taken in other than in good faith, and presumably it would be outside his competence to provide an opinion on the matter.

This Amendment had a great deal of support in another place. The noble Lord, Lord Shackleton, wished to pray in aid the support of the doctors, but I think that this is largely a statistical accident. In another place there were managers of Regional Hospital Boards who supported this Amendment, and it was carried in Committee. In pressing this Amendment I would say that it implies no attack on the hospital service as a whole. I say this in view of a remark made by the noble Viscount, Lord Addison. If one objects to anything, perhaps one objects to the complaints procedure in that it does not go far enough as it is now operating. As I said, this procedure can never be made known to people who want to complain, and it is the wrong type of complaint procedure. Moreover, there may be complaints against the working of the complaints procedure inside the hospital service and it would need somebody like the Parliamentary Commissioner to investigate these.

If the Bill were passed with this paragraph excluded and with the hospital service in, this would be an earnest of the Government's intention to carry the activities of the Parliamentary Commissioner into the local area; and this is something which the Government have indicated they would consider doing in regard to local authorities as a whole. I see no reason to wait in this respect. The Government have withdrawn to the extent that they have now made it possible at a later stage to include the hospital service. I think that the Bill would get a better send off if we were to include it immediately, and I would press this Amendment.


My Lords, before the noble Lord sits down, may I ask whether he is prepared, if this Amendment is accepted, to accept the inevitable consequence that the setting up of the Parliamentary Commissioner will be delayed?


By how long?


Months, possibly.


My Lords, may I add one word before we part with this Amendment?


My Lords, may I remind the noble Lord that we are not in Committee.


May I ask leave of your Lordships to make one comment before we come to a decision about this? I was joined by noble Lords on the Liberal Benches in moving this Amendment. I should like to thank the noble Lord, Lord Shackleton, for making out the case against the Amendment so cogently. I recognise that it is a powerful case, but there is the exceptional case of complaint against the hospital service. Somebody has made a serious complaint, it is rejected, and there is no way of following it up.


I must point out to the noble Lord that his right to speak under Standing Orders does not give him the right to put in new matter. He is familiar with that, and I feel bound to point it out. I do not wish to restrain him, because I am sure that he wishes to be helpful to the House, but if he looks at Standing Order No. 28 he will see that this is so.


My Lords, I am not aware that I am bringing in any new matter. I am only making a comment on the noble Lord's remarks. If I am not entitled to do so of course I will sit down, but I was not under the impression that I was out of order. I have a comment to make on one or two replies of the noble Lord which would be helpful to the House in reaching a conclusion.


My Lords, the noble Lord puts me in a difficult position because I am taking part in this. The last thing I want to do is stand on procedure, but I notice a certain restiveness on the part of noble Lords. Standing Order No. 28 says that no noble Lord may speak twice on any Motion, whether on a Bill or other matter unless it be to explain some material point, no new matter being introduced, and that not without the leave of the House. This does not apply to Committee. I am sure that the House would give the noble Lord leave to speak. Although I am quoting from the Companion, it precisely follows the terms of the Standing Order and it is very specific. There is a tendency among us always to think that Report stage is the same as Committee. With that, I will leave it to the judgment of the noble Lord.


My Lords, I thank the noble Lord for his explanation and information. The last thing I wish to do is to strain the patience of the House, especially when I think our cause is a good one. Therefore I will proceed no further.

5.31 p.m.

On Question, Whether the said Amendment (No. 11) shall be agreed to?

Their Lordships divided: Contents, 47; Not-contents, 59.

Airedale, L. [Teller.] Ellenborough, L. Margadale, L.
Albemarle, E. Elliot of Harwood, Bs. Massereene and Ferrard, V
Ashbourne, L. Erroll of Hale, L. Merrivale, L.
Asquith of Yarnbury, Bs. Ferrers, E. Nugent of Guildford, L.
Balfour of Inchrye, L. Gladwyn, L. Oakshott, L.
Brecon, L. Goschen, V. [Teller.] Ogmore, L.
Brooke of Cumnor, L. Gridley, L. Reay, L.
Brooke of Ystradfellte, Bs. Grimston of Westbury, L. Runcorn, L.
Byers, L. Harlech, L. St. Aldwyn, E.
Carrington, L. Hawke, L. St. Helens, L.
Colville of Culross, V. Henley, L. St. Oswald, L.
Colyton, L. Howard of Glossop, L. Sandford, L.
Denham, L. Jellicoe, E. Strange of Knokin, Bs.
Derwent, L. Killearn, L. Stuart of Findhorn, V.
Drumalbyn, L. Kilmany, L. Teynham, L.
Dundee, E. Kinnoull, E.
Addison, V. Greenway, L. Platt, L.
Ailwyn, L. Grenfell, L. Plummer, Bs.
Ampthill, L. Henderson, L. Popplewell, L.
Archibald, L. Hilton of Upton, L. [Teller.] Raglan, L.
Arwyn, L. Hughes, L. Rhodes, L.
Balerno, L. Hurcomb, L. Ritchie-Calder, L.
Beswick, L. Iddesleigh, E. Royle, L.
Blyton, L. Kirkwood, L. Sainsbury, L.
Bowles, L. [Teller.] Latham, L. Shackleton, L.
Brockway, L. Leatherland, L. Sorensen, L.
Burden, L. Lindgren, L. Stocks, Bs.
Caccia, L. Longford, E. (L. Privy Seal.) Stonham, L.
Cawley, L. Maelor, L. Strang. L.
Champion, L. Mitchison, L. Summerskill, Bs.
Crook, L. Morris of Kenwood, L. Taylor of Mansfield, L.
Effingham, E. Morrison, L. Walston, L.
Fleck, L. Moyle, L. Wells-Pestell, L.
Gaitskell, Bs. Pargiter, L. Willis, L.
Gardiner, L. (L. Chancellor.) Peddie, L. Ypres, E.
Granville-West, L. Phillips, Bs.

Resolved in the negative, and Amendment disagreed to accordingly.