HEALTH SERVICE COMMISSIONER (Hansard, 22 February 1972)

§ THE MINISTER OF STATE, DEPARTMENT OF HEALTH AND SOCIAL SECURITY (LORD ABERDARE)
My Lords, with your Lordships' permission I should like to repeat a Statement which my right honourable friend the Secretary of State for Social Services is making in another place about the appointment of a Health Service Commissioner. The Statement is as follows:
"The Government have decided that there should be a Health Service Commissioner as part of the arrangements for dealing with complaints in the National Health Service. Although the great majority of complaints are satisfactorily dealt with by health authorities, there are some that the citizen should be able to refer to an entirely independent person if he remains dissatisfied with the action taken by the Health Service authority. A Commissioner would serve this independent function and would reinforce the rights of those who use the Health Service, without detracting from the responsibilities of the Health Service authorities or reflecting on the value of the work done by the staff of the Service.
"There will be a Health Service Commissioner for England, one for Wales and one for Scotland, but initially at least, the three posts will 420 be held by the same person. This is an important expansion of the machinery for the independent investigation of complaints for which the Parliamentary Commissioner for Administration represents a proven precedent. It would be premature for the Commissioner to be designated now. The Government think, however, that the work of the Health Service Commissioner and of the Parliamentary Commissioner for Administration should be closely associated, and they recognise that there are strong arguments for considering whether these posts should all be held by the same person. Before reaching a decision on this the views of the Select Committee on the Parliamentary Commissioner for Administration will be sought. Appointment of the Commissioner will be by Her Majesty by Letters Patent. In this and in his tenure of office, he will follow the precedent set by the Parliamentary Commissioner for Administration, and will enjoy the same degree of independence in carrying out his functions. The Health Service authorities will continue to be responsible for investigating complaints made to them, as part of their general management responsibilities. The Commissioner will consider only those complaints made by or on behalf of patients which have already been made to the responsible authorities and not been resolved to the complainant's satisfaction. Complainants (or those acting for them) will in all cases deal directly with the Commissioner.
"The Commissioner will be responsible for investigating actions taken by or on behalf of the Health Service authorities where it is claimed that an individual person has suffered injustice or hardship through maladministration, or through a failure to provide necessary treatment and care. He will not, however, deal with complaints from staff about their pay and conditions of service, or with complaints concerning contracts or other commercial transactions. Nor will he investigate the actions of general medical and dental practitioners, pharmacists, ophthalmic medical practitioners and opticians, all of whom are not employees of the Health Service but are in contract with it. A statutory 421 procedure already exists for examining complaints against them, and this will continue, without the involvement of the Commissioner. In Scotland the Commissioner will not deal with complaints falling within the jurisdiction of the Mental Welfare Commission.
"Together with my right honourable friends the Secretaries of State for Scotland and for Wales, I have had thorough and constructive discussions with representatives of the medical profession about complaints bearing on the relationship between clinicians and patients. We have decided that the Commissioner should be precluded from investigating any action taken in the course of diagnosis, treatment or clinical care of an individual patient which, in the Commissioner's opinion, was taken solely in the exercise of clinical judgment.
"In cases coming within his jurisdiction, the Parliamentary Commissioner for Administration does not look into complaints when the complainant has or had a right of appeal to a tribunal or a remedy by way of proceedings in a court of law, unless he is satisfied that in the particular circumstances of the case it is unreasonable to expect the complainant to resort or have resorted to it. The Health Service Commissioner will follow the same practice; I would expect that he would need to use his discretion to investigate this type of case only on rare occasions.
"The procedure under which the Commissioner will conduct investigations will be similar to that observed by the Parliamentary Commissioner for Administration. He will be required to send a report of the results of investigations to the complainant, to any person complained against and to the responsible health authorities. He will make an annual report (and may make special reports) to the Secretary of State, who will be required to lay them before both Houses of Parliament.
"Legislation will be required to enable the Health Service Commissioner to be appointed."

§ BARONESS SEROTA
My Lords, in view of the major issues involved in 422 dealing with complaints in the National Health Service I am glad that the noble Lord, Lord Aberdare, has been good enough to repeat this lengthy and complex Statement made by his right honourable friend in another place. Let me preface my remarks on the Statement by saying that all in this House would agree that the National Health Service is one of our greatest national assets, and that the vast majority of patients and their relatives feel nothing but gratitude for the service and the skill and the care they receive. At the same time, none of us can now doubt after the three reports on three hospitals in these last three years, Ely, Farleigh and Whittingham, that the case for an independent Health Commissioner has been clearly and most tragically demonstrated in full.
Moreover, the Statement we have just heard is of particular significance at this moment of time in view of the impending reorganisation of the Health Service, and the determination of the present Government to manage the newly integrated service through small and non-representative bodies accountable to no one except the Minister who appoints them. In this context the findings of the Payne Committee on the inquiry into the Whittingham Hospital, which was published only last week, revealed, I am afraid, only too clearly the stark and total failure of the Hospital Management Committee to investigate fully the very serious complaints made by nurses about ill-treatment and fraud at the hospital which were proved some two years later to be well-founded.
I therefore welcome in principle the Statement we have just heard, that the Government have decided to appoint a Health Commissioner. But my welcome is qualified by my very grave concern about that part of it which indicates that the independent Health Service Commissioner, the Government envisage, will act as a court of appeal only in those cases where complaints have already been made by or on behalf of patients and have not yet been fully resolved. While I fully agree that there is a clear need for fair, swift and effective machinery to deal with complaints at local level, the code of practice for which the Davies Committee is currently considering, I hope the House will agree that the most devastating feature common to the three terrible 423 reports we have had in these last three years was that the complaints of ill-treatment of patients were exposed initially in each case by junior nursing staff and a doctor in the case of the Whittingham Hospital, a doctor whom I saw myself as I was at the Department when he made his first direct complaint. All the staff concerned were initially censured, and in some cases actually victimised to the point of suspension or dismissal, as at Ely, for having the courage of their professional and personal convictions in pursuing these matters. I therefore believe now that it is essential for staff, for relatives or patients who wish to make a complaint or have a matter investigated to have direct access, both formal and informal, by letter or in person, to the Health Service Commissioner when he is appointed to avoid the fear of victimisation.
My Lords, I might not—let me be quite frank—have held this view two years or so ago. One would naturally wish to see complaints normally dealt with through the general management processes of the Health Service. But now I believe, on the evidence of these three Reports, that there should be direct access to an independent Commissioner. I very much hope that the Government will see the strength of the case and present the legislation in this form.
I would also ask the noble Lord if he can tell the House whether the remit of the proposed Health Commissioner will cover all the aspects of the integrated Health Care Services after 1974 or whether his writ will run only over the Hospital Service. I should also like the opportunity to consider at greater leisure that part of the document relating to clinical relationships between patients and their doctors which needs very careful study. I hope there will be a more suitable moment in the near future, when noble Lords have had a chance to consider this very difficult and important area of the Health Service relationships, to have a further and fuller discussion about it.

§ LORD AMULREE
My Lords, I, too, should like to thank the noble Lord for repeating this Statement, and to say how very pleased I am that the Government have made up their mind to appoint a 424 Parliamentary Commissioner for the Health Service. This will give great satisfaction among a large number of the medical profession who have been not at all happy about the way in which complaints have been dealt with in the past or with the machinery for investigating certain complaints. I would support the noble Baroness in what she has said about the complaints coming in from the staff of the hospital. I think they should have direct access to the Commissioner, because from the reports we have had that was clearly where the breakdown of some sort occurred. I hope that when legislation is introduced this point will be considered. I am glad to see that no attempt is to be made to interfere in the treatment of patients on the clinical side, which I believe can be dealt with in quite a proper way at the present time, as the Statement said.

§ LORD ABERDARE
My Lords, I am grateful to the noble Baroness, Lady Serota, and to the noble Lord, Lord Amulree, for their general welcome to this Statement. I know that for some time there has been pressure to appoint a Health Service Commissioner. I listened with interest to what they both had to say about direct access, although I must say that I cannot go quite as far as they wanted me to go.
I think the noble Baroness was some-what self-contradictory in paying at the beginning of her remarks a handsome and well-deserved tribute to the great majority of the staff and to the conditions in the National Health Service—which of course I would thoroughly echo—and then at the end of her remarks advocating a direct complaint to the new Health Service Commissioner before even the normal Health Service authorities had a chance to sort out the facts. The vast majority of complaints are satisfactorily dealt with by the normal machinery. At the moment we have the Davies Committee looking into an improvement in that machinery and it is only when the normal channels fail to satisfy a complainant (and the person complaining may be a patient, a member of the staff or a Member of Parliament, or any other individual) that we need a Health Service Commissioner.
In answer to the specific question raised by the noble Baroness, I can say that all aspects of the integrated Health Service 425 will be covered by the Health Service Commissioner after the Service is reorganised in 1974.

§ BARONESS SEROTA
My Lords, I am not anxious to detain the House but I really must defend myself against the accusation of self-contradiction. The issue at stake is one of time. The original complaints by members of the nursing staff at the Winningham Hospital went back to 1967; the local Hospital Management Committee failed completely to undertake the necessary investigations, and it was not until a doctor wrote to the then Secretary of State in 1969 that the investigation was started. Nothing was done for the two years those conditions obtained, and this is why I have now come to the views I have just put forward.