HL Deb 02 August 1972 vol 334 cc430-41

[Nos. 22–30] After Clause 42, insert the following new clause:

Appointment of Commissioner and tenure of office

".—(1) For the purpose of conducting investigations in accordance with the following provisions of this Part of this Act, there shall be appointed a Commissioner, to be known as the Health Service Commissioner for Scotland.

(2) Her Majesty may, by Letters Patent, from time to time appoint a person to be the Commissioner, and any person so appointed shall, subject to subsection (3) below, hold office during good behaviour.

(3) A person appointed to be the Commissioner may be relieved of office by Her Majesty at his own request, or may be removed from office by Her Majesty in consequence of Addresses from both Houses of Parliament, and shall in any case vacate office on completing the year of service in which he attains the age of sixty-five years.

(4) The Commissioner shall not be a member of the House of Commons, or of the Senate or House of Commons of Northern Ireland, and accordingly—

  1. (a) in Part III of Schedule 1 to the House of Commons Disqualification Act 1957, there shall be inserted, at the appropriate point in alphabetical order, the entry The Health Service Commissioner for Scotland"; and
  2. (b) the like amendment shall be made in the Part substituted for the said Part III by Schedule 3 to that Act in its application to the Senate and House of Commons of Northern Ireland.

(5) The Commissioner shall not be a member of a body subject to investigation or any management committee thereof."

After Clause 42, insert the following new clause:

Salary and pension

".—(1) Subject to the provisions of this section, there shall be paid to the holder of the office of Commissioner such salary as the House of Commons may, by resolution, from time to time determine, and any such resolution may take effect from the date on which it is passed or such other date as may be specified therein.

(2) Subject to the provisions of this section, Schedule I to the Parliamentary Commissioner Act 1967 (pensions and other benefits) shall have effect with respect to persons who have held office as Commissioner as it has effect with respect to persons who have held office as Commissioner under that Act.

(3) The salary payable to a holder of the office of Commissioner shall be abated by the amount of any pension payable to him in respect of any public office in the United Kingdom or elsewhere to which he had previously been appointed or elected; but any such abatement shall be disregarded in computing that salary for the purposes of the said Schedule 1.

(4) If one person holds both the offices of Parliamentary Commissioner for Administration and Commissioner, he shall, so long as he does so, be entitled only to the salary, pension and other benefits pertaining to the former office.

(5) Any salary, pension or other benefit payable by virtue of this section shall be charged on and issued out of the Consolidated Fund."

After Clause 42, insert the following new clause:

Administrative provisions

".—(1) The Commissioner may appoint such officers as he may determine with the approval of the Minister for the Civil Service as to numbers and conditions of service.

(2) Any function of the Commissioner under this Part of this Act may be performed by any officer of the Commissioner authorised for that purpose by the Commissioner or by any officer of the Parliamentary Commissioner for Administration so authorised.

(3) To assist him in any investigation, the Commissioner may obtain advice from any person who in his opinion is qualified to give it, and such fees or allowances may be paid to such person by the Commissioner as he may. with the approval of the Minister for the Civil Service, determine.

(4) The expenses of the Commissioner under this Part of this Act, to such amount as may be sanctioned by the Minister for the Civil Service, shall be defrayed out of moneys provided by Parliament."

After Clause 42, insert the following new clause:

Bodies and action subject to investigation

"—(1) In this Part of this Act, a 'body subject to investigation' means any of the following bodies—

  1. (a) Regional Hospital Boards;
  2. (b) Boards of Management;
  3. (c) Executive Councils;
  4. (d) Health Boards;
  5. (e) the Agency.

(2) Subject to the provisions of this section, the Commissioner may investigate any action taken by or on behalf of a body subject to investigation in any case where a complaint is duly made that a person claims to have sustained injustice or hardship in consequence of maladministration in connection with the action so taken, or in consequence of a failure in a service which was or ought to have been provided for him by or on behalf of the body subject to investigation, in consequence of having been unfairly or unreasonably treated.

(3) Except as hereinafter provided, the Commissioner shall not conduct an investigation under this Part of this Act in respect of any of the following matters—

  1. (a) any action in respect of which the person aggrieved has or had a right of appeal, reference or review to or before a tribunal constituted by or under any enactment or by virtue of Her Majesty's prerogative;
  2. (b) any action in respect of which the person aggrieved has or had a remedy by way of proceedings in any court of law:

Provided that the Commissioner may conduct an investigation notwithstanding that the person aggrieved has or had such a right or remedy, if satisfied that in the particular circumstances it is not reasonable to expect him to resort or have resorted to it.

(4) Without prejudice to subsection (3) above, the Commissioner shall not conduct an investigation under this Part of this Act in respect of any such action as is described in Schedule 5 to this Act.

(5) Her Majesty may, by Order in Council, amend the said Schedule so as to exclude from the provisions of that Schedule action described in paragraph 4 or 5 of that Schedule; and any statutory instrument made by virtue of this subsection shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(6) In determining whether to initiate, continue or discontinue an investigation under this Part of this Act, the Commissioner shall, subject to the foregoing provisions of this section, act in accordance with his own discretion; and any question whether a complaint is duly made under this Part of this Act shall be determined by the Commissioner."

After Clause 42, insert the following new clause:

Provisions relating to complaints

".—(1) A complaint under this Part of this Act may be made by any individual or by any body of persons, whether incorporated or not, not being—

  1. (a) a local authority or other authority or body constituted for purposes of the public service or of local government or for the purposes of carrying on under national ownership any industry or undertaking or part of an industry or undertaking;
  2. (b) any other authority or body whose members are appointed by Her Majesty or any Minister of the Crown or government department, or whose revenues consist wholly or mainly of moneys provided by Parliament.

(2) Where the person by whom a complaint might have been made under the foregoing provisions of this Part of this Act has died or is for any reason unable to act for himself, the complaint may be made by his personal representative or by a member of his family or other individual suitable to represent him; but except as aforesaid a complaint shall not be entertained under this Act unless made by the person aggrieved himself.

(3) A complaint shall not be entertained under this Part of this Act unless it is made in writing to the Commissioner by or on behalf of the person aggrieved not later than twelve months from the day on which the matters alleged in the complaint first came to the notice of the person aggrieved; but the Commissioner may conduct an investigation pursuant to a complaint not made within that period if he considers it proper to do so.

(4) Before proceeding to investigate a complaint, the Commissioner shall satisfy himself that the complaint has been brought by or on behalf of the person aggrieved to the notice of the body subject to investigation and that that body has been afforded a reasonable opportunity to investigate and reply to the complaint.

(5) Notwithstanding the foregoing provisions of this section, a body subject to investigation may itself refer to the Commissioner a complaint made against it by or on behalf of an aggrieved parson, and the provisions of subsection (3) above regarding time limits shall apply to such a reference as it applies to a complaint."

After Clause 42, insert the following new clause:

Application of certain provisions of the Parliamentary Commissioner Act 1967 c. 13

". The following provisions of the Parliamentary Commissioner Act 1967 shall, with any necessary modifications, apply to the Commissioner, his officers and to a body subject to investigation as they apply to the Commissioner under that Act, his officers and to a department or authority concerned—

  1. (1) section 7 (procedure in respect of investigations);
  2. (2) section 8 (evidence), except subsection (4);
  3. (3) section 9 (obstruction and contempt);
  4. (4) section 11 (secrecy of information), except subsection (4)."

After Clause 42, insert the following new clause:

Reports by Commissioner

".—(1) In any case where the Commissioner conducts an investigation under this Part of this Act, he shall send a report of the results of his investigation to—

  1. (a) the person who made the complaint;
  2. (b) the body subject to investigation;
  3. (c) any person who is alleged in the complaint to have taken or authorised the action complained of;
  4. (d) the Secretary of State.

(2) In any case where the Commissioner decides not to conduct an investigation under this Part of this Act, he shall send a statement of his reasons for doing so to the persons and bodies described in paragraphs (a) and (b) of subsection (1) above.

(3) If, after conducting an investigation under this Part of this Act, it appears to the Commissioner that injustice or hardship has been caused to the person aggrieved in the circumstances described in section 45(2) of this Act, and that the injustice or hardship has not been or will not be remedied, he may, if he thinks fit, make a special report to the Secretary of State who shall, as soon as is reasonably practicable, lay before each House of Parliament a copy of the report.

(4) The Commissioner shall annually make to the Secretary of State a general report on the performance of his functions under this Part of this Act, and may from time to time make to the Secretary of State such other reports with respect to those functions as the Commissioner thinks fit, and the Secretary of State shall lay a copy of any such report before each House of Parliament.

(5) For the purpose of the law of defamation, any report or statement made, sent or laid in pursuance of this section, shall be absolutely privileged."

After Clause 42, insert the following new clause:

Transitional provisions

.—(1) Notwithstanding the dissolution by this Act of any body subject to investigation the Commissioner may continue any investigation in relation Io such a body commenced by him before the date of dissolution, and may after that date commence an investigation under this Part of this Act in relation to such a body provided that the time limits mentioned in section 46(3) of this Act are observed.

(2) As regards any investigation mentioned in subsection (1) above, the Commissioner may adopt such procedure in relation thereto, and to the report resulting therefrom, as in the circumstances he thinks fit."

After Clause 42, insert the following new clause:

Interpretation of Part VII

".—(l) In this Part of this Act— action" includes failure to act, and other expressions connoting action shall be construed accordingly; the Commissioner" means the Health service Commissioner for Scotland; person aggrieved" means the person who claims or is alleged to have sustained such injustice or hardship as is mentioned in section 45(2) of this Act.

(2) It is hereby declared that nothing in this Part of this Act authorises or requires the Commissioner to question the merits of a decision taken without maladministration by a body subject to investigation in the exercise of a discretion vested in that body."

LORD POLWARTH

My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 22 to 30. I am afraid that I must detain your Lordships a little longer on these Amendments. These new clauses, together with the new Schedule, made a very substantial addition to the Bill in its progress through another place.

My noble friend Lady Tweedsmuir said when the Bill was before your Lordships' House in February that it would be the Government's intention to make provision in the Bill for a Health Service Commissioner on the lines foreshadowed in the statement made by my noble friend Lord Aberdare on February 22. The noble Lord, Lord Hughes, said in response that he was glad that there had been a decision in favour of a Commissioner in time for this to be incorporated in the Bill.

It seems right that in a Bill devoted primarily to questions of the administrative structure of the National Health Service the opportunity should be taken to provide specific machinery for the impartial investigation of complaints of maladministration. This is not because we believe that there are numerous or major failures in the services provided. The National Health Service unquestionably does an excellent job. But in the millions of contacts which take place between the public and the Service, some inevitably give rise to feelings of grievance and need to be independently investigated when local attempts to obtain satisfaction have failed.

The provisions have been modelled fairly closely on those of the Parliamentary Commissioner Act 1967. This means that the Commissioner will be appointed by Her Majesty by Letters Patent and will be removable only by Addresses from both Houses of Parliament. Having entrenched the Commissioner's independence in that way, he is then given very wide discretion in how he goes about his work of investigating complaints. Thus while he will not, for example, ordinarily pursue cases where a suitable remedy can be sought from a court of law or from some administrative tribunal, he will be able to decide for himself whether the circumstances warrant a departure from that general principle. Similarly, although the usual time limit for complaining to the Commissioner will be 12 months, he will have complete discretion to investigate cases received later than that if he thinks it appropriate to do so.

The Commissioner is deliberately not intended to be a court of first instance. The responsibility for putting right any actions which amount to maladministration ought to rest on local management. For this reason, although no formal restriction is placed on lodging a complaint with the Health Service Commissioner—the complainer does not, for example, have to go through his Member of Parliament—the Commissioner is required to satisfy himself, before proceeding to investigate a complaint, that the Health Board or other body complained about has had an opportunity to investigate and reply to the criticism. Only when local attempts to dispel the sense of grievance have failed should the Commissioner become involved.

In another place the matters which attracted most comment arose from the terms of the new Schedule, which lists the matters the Commissioner will not investigate. There was discussion of the exclusion of matters relating to general practitioners, doctors, dentists, pharmacists and opticians, who are not employees of the National Health Service but have contracted with it to provide specified services. For these groups, however, there are long-standing arrangements for the local investigation of complaints and for penalties, which may be substantial, to be imposed if the circumstances so warrant. The situation in these fields is considered by the Government to be broadly satisfactory and it is not thought necessary to alter them.

Nor is it thought desirable to ask the Commissioner to become involved in matters where the clinical judgment of a doctor or other member of the healing professions is involved. The Commissioner has never been intended to act as a kind of medical auditor, judging at leisure and with the advantage of hindsight the clinical decisions which a doctor took under pressure and on the basis of such experience and knowledge as he possessed at the relevant time. The Commissioner's opinion as to whether action was taken solely in the exercise of clinical judgment will be final. It will be possible for him to be assisted in this task by advice from experts belonging to the profession concerned, and the provisions are worded widely enough to ensure that the Commissioner can make such preliminary inquiries as he thinks necessary to satisfy himself that any action complained of was based solely on clinical judgment and not on maladministration.

My Lords, the inclusion of these new clauses in the Bill is evidence of the Government's desire to combine efficiency in the Health Service with a full regard for the rights of the individual, for whose welfare the Service exists. As my honourable friend the Parliamentary Secretary said when the clauses were being debated in another place: There is no substitute for responsive management which acts quickly and effectively to meet not only specific complaints but the underlying faults which may have caused them; but the ordinary citizen must be sure that a lust complaint cannot be stifled by any interested party. The independent court of last resort provided by the Health Service Commissioner should remove any fear that that might occur". Those words I think sum up effectively Her Majesty's Government's view on these clauses. I am not certain whether it would be your Lordships' wish that I should continue to review the specific new clauses under this heading introduced by the Amendments, before your Lordships contribute to the discussion, or whether you wish to speak in reply now.

Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Polwarth.)

9.17 p.m.

LORD HOY

My Lords, I am grateful to the noble Lord for his explanation. But do not let us underestimate the situation: this is a very substantial change in the Bill—a very substantial change indeed. The work of the Commissioner is going to be of tremendous importance. I shall not ask the Minister tonight who the Commissioner might be or what he might be. I just utter one word of warning. I do not think it is always a lawyer who should be appointed to do these jobs. Apparently, we are getting into a habit, which is not a good one, that it does not matter what we want to inquire into in our country, we must find a lawyer to do it. I have nothing against the law, and have many distinguished friends in the law, but there are occasions when a man from the professions—there are many professions connected with this Service—might be the most competent person to deal with the matter in question.

I am grateful that there will be a difference between this particular Commissioner and the first one who was appointed, because the public always felt rather inhibited. The Member of Parliament felt that he was being used as a buffer between the complainant and the Commissioner, because the complaint could be made to the Commissioner only through the Member of Parliament. That situation has been removed under this proposal, as I understand it, and the complaint will be made direct. This is an advantage. But I am not altogether satisfied that it will be for the Commissioner to decide whether the body under investigation has had a reasonable opportunity to investigate and reply to the complaint. This is not always easy to decide, especially when one is dealing with medical matters and complaints come up, justly or unjustly, about hospital services. The noble Lord, Lord Polwarth, must be aware of how touchy people are. Hardly a weekend passes without somebody stating through a newspaper his complaint about the inefficiency of some hospital or of some service he has received. It will be a little difficult if someone makes a complaint and does not receive all the attention he requires, because a dispute may arise between the Commissioner and the complainant. The complainant might very well argue that he had given an organisation all the opportunities p ossible to reply to his complaint, but he had been told that he could not take the matter any further because, having got it to this individual called the" Commissioner", he had decided that the complainant had been unreasonable.

So I issue a word of warning that we should be a little careful in the operating of this Service, because it will always be a cause for complaint if people feel that the Commissioner is taking sides. I should not like this feeling to get around, because I can foresee someone having a fairly serious complaint and saying, "I was prevented from getting to someone, because the Commissioner decided that I had not given him a reasonable opportunity". We can be in a difficult predicament here, and all I want to be assured of is that the Commissioner, whoever he is, will in fact (and I am sure he will) do a first-class job.

Next I should like to ask what assistance he will have. The noble Lord said that the Commissioner will be able to call in expert advice before reaching his decision, but, quite obviously, he must also have considerable staff to deal with his work, because even the noble Lord went so far as to say that there will ***be "millions" of contacts. That means that there will be a fairly considerable amount of work, and I should like to know a little more about what the set-up is to be and where it is proposed to establish this Commissioner. Is it to be in the capital City of Edinburgh or is some other office being thought of? I do not ask this merely out of inquisitive interest, but because I know it will be of importance to people all over Scotland who will feel that they can contact a person if they have occasion to do so. So that while I welcome this and am grateful, and would repeat what my noble friend said when he got the information during the Second Reading debate, I take this opportunity of pointing out that difficulties may arise and that it will be better to anticipate them than to allow them to happen and then attempt to find a cure.

LORD POLWARTH

My Lords, the noble Lord is indeed right. We are embarking upon a major new departure and one which we think will be beneficial to the patients of the Health Service. Of course we shall have to go carefully and we are quite right to be looking ahead. There will be an interval of time following the passing of this legislation, some time ahead of its English sister in which there will be similar provisions, so I think we have time to do this. The noble Lord asked about complaints. I think here we have to rely very much on the integrity and sense of the person appointed as Commissioner, and of those whom he selects to be his staff. I believe that the precedent of the Parliamentary Commissioner gives reason to think that there is no reason why he should not live up to full expectations.

In the investigation of complaints, it is desirable that the local health organisation should have the chance to put matters right, and I believe they will feel it in their interest to settle complaints, so far as is reasonably possible, without their having to go to the Commissioner.

As to the identity of the Commissioner, I can tell your Lordships that it is the intention, initially at any rate, that the posts of Health Commissioner for Scotland, and for England and Wales will be occupied by one person, although there are three posts—but subject of course to the passing of the English legislation—because the volume of work would not justify a separate post for Scotland. That will also help to establish common standards. The Commissioner will establish offices in the centres in the same way as they have been established by the Parliamentary Commissioner. There will certainly be an office in Scotland. He has power under the clause inserted by Amendment No. 24 to appoint such officers as he may determine to be necessary, with the approval of the Minister for the Civil Service, so that I do not think there need be any doubt on that score.

LORD HOY

My Lords, considering that there are 52 million or more people in this country, he is obviously going to have a very big job. This causes me to doubt his ability to cope with this task, and that is why I hope that the Government will look at this whole matter again. The Parliamentary Commissioner was limited in the extent of his work when he was first appointed. That limitation will not apply in this case. Considering the hundreds of thousands of people undergoing treatment in the National Health Service, the number of hospitals and the day-to-day work involved in the Service generally, I cannot see—I am anxious not to be regarded as a pessimist —the wisdom of placing this great burden on one individual.

While it may be a good idea to establish offices in Scotland, England and Wales, may I ask the noble Lord to appreciate that offices and even assistants will not be enough? People like to think that they are receiving personal attention. This may be a weakness in the scheme. The curious thing about people is that they like to be attended to by the head. I will not take the matter further at this stage except to reiterate my hope that attention will be paid to this point.