§ 4.30 p.m.
§ House again in Committee on Amendment No. 93.
§ LORD BROCK
I wish to speak against this Amendment, which seeks legislation to make the formation of ethical committees a statutory obligation. I am all in sympathy with the formation of ethical committees. Most hospitals already have one; in fact, the Chief Medical Officer of the Department of Health has recently informed the Joint Consultants' Committee and the Royal College of Physicians that all teaching hospital authorities and more than three-quarters of the other hospitals where clinical research is undertaken either have experienced ethical committees or use another committee to discharge this function.
The noble Lord, Lord Platt, also mentioned the recommendations put forward by the Royal Colleges and the Medical Research Council that such committees be generally used. Already these committees serve a very useful purpose, if used correctly, and all relevant matters must be referred to them. Nevertheless, the provisison of these ethical committees is not a suitable subject for legislation. We should leave things as they are and trust to the good sense and responsibility of the doctors and of the ethical committees which they have already formed: we should not try to dragoon them. It is just not necessary to make this a statutory obligation. If any direction or guidance is thought necessary, it can be done by some simpler means, as the noble Lord, Lord, Lord Platt, has already suggested.
§ LORD VIVIAN
The noble Lord, Lord Strabolgi, in speaking to Amendment No. 93, which stands jointly in his name, mentioned the book, Human Guinea Pigs, by Maurice Pappworth, who is known to me. There was a great deal which was true in this book with regard to experimental operations which have been carried out in hospitals in the past. This book was not a popular one with the medical profession, and I submit that any allegation such as Mr. Pappworth made in this book could be controlled if this Amendment were accepted by my noble friend the Minister. I know that the noble 280 Lord, Lord Brock, and also the noble Lord, Lord Platt, will not agree with me on this point; nevertheless I stand firm on it. So, before the Minister replies, I would ask him to look very favourably on this Amendment. I can see very great advantage to the patient if the Amendment is accepted, and I need not remind the Committee that it is the benefit of the patient with which, in this Bill, we should be primarily concerned.
§ 4.34 p.m.
§ LORD ABERDARE
I was glad to hear from the noble Lord, Lord Beaumont of Whitley, that I had gone some way at least to satisfy him on his previous Amendment about privacy. But I must apologise to him for having addressed my letter of reply to the noble Lord, Lord Beaumont, and not to the noble Lord, Lord Beaumont of Whitley, with the result that it took longer to reach him than I had intended. So far as this new clause is concerned, there is no doubt that the general underlying intention behind it is acceptable to us. It conforms with our views and with those of the profession. But I must say that I agree with what the noble Lord, Lord Brock, has just said: that a matter of this sort, where the details are constantly changing, is one that is not best dealt with by legislation. I am sure there is general agreement on the basic need to protect the patient and also, I should have thought, agreement on the need to protect clinical freedom and the advance of medical knowledge. These are not irreconcilable; but any law, any precise definition would be soon outdated. What I think is needed is an understood procedure and a constant adaptation to changing circumstances. This is what we are seeking to do.
The noble Lord, Lord Platt, referred to the Medical Research Council's statement in its annual report for 1963 on responsibility in investigations on human subjects. It draws a distinction, in the same way as did the noble Lord himself, between patient care procedure, which is governed by the normal rules of professional conduct, and the procedure intended to advance knowledge. It emphasised the heavy moral onus on the profession, severally and collectively, not to abuse the trust of the patients. It laid down circumstances in which the fully valid consent of the patient must be 281 obtained, and recommended that other experienced colleagues should be consulted where appropriate. It also stated that a detailed code of rules was impossible to draft. This advice was passed to all hospital authorities in September, 1964.
Then, as the noble Lord, Lord Platt, also said, the Royal College of Physicians (of which at the time Sir Max Rosen-helm, later Lord Rosenheim, was Chairman) published its reply in July, 1967. It agreed with the previous report of the Medical Research Council but went on to recommend that even the most experienced should seek advice when difficult ethical problems arose. But a hospital authority or medical school—which, incidentally, is not covered by the noble Lord's Amendment—is responsible for ensuring that clinical investigations are ethically and skilfully conducted. All projects should be approved by a group of doctors, including those experienced in clinical investigation. Clinical investigation in normal medical institutions should be similarly controlled by a group including at least one doctor; and tests on healthy volunteers such as medical students should similarly be supervised. This report we sent to the hospital authorities in 1968 and asked them to put it into effect. At the same time, the Chief Medical Officer wrote personally to all consultants.
As the noble Lord, Lord Brock, rightly said, last year we conducted a follow-up exercise, and this showed that all hospital authorities where clinical research is undertaken had ethical committees, about one-fifth of which included lay members. But they were still finding difficulties of interpretation. My right honourable friend the Parliamentary Secretary in another place has undertaken that the possibilities of further guidance will be considered, and at the moment this possibility is under discussion between the Department, the Medical Research Council and the Royal College of Physicians. There are some pretty difficult matters of interpretation and wording in the noble Lord's clause which I will not detail to him now, because I am sure he would not wish me to do so; but they emphasise the real difficulties of putting this sort of matter into legislation.
I should like to make just one comment on the book referred to by the noble 282 Lord, Lord Strabolgi, and by my noble friend Lord Vivian. I understand that the cases cited in this book were collected over a long period and from a number of countries other than the United Kingdom. Although in the past unethical experiments may have been carried out, I am sure that under present arrangements the opportunity for further similar unethical procedures is negligible. There is much more awareness now of these ethical problems, and I think that the guidance that has already been given, and any further guidance that may emerge as a result of our present consultations, should make this danger absolutely minimal. I hope that, with these assurances, the noble Lord will feel that we are in full agreement with what he is trying to achieve, but we think it would be better to leave it to the guidance which will result from the conversations we are having with the profession. May I add that these conversations will, of course, include the question of lay representation on the committee, a subject on which he laid great stress.
§ LORD BEAUMONT OF WHITLEY
I am grateful to the noble Lord, Lord Aberdare, for his reply. I am grateful for the news that there is to be consideration of further guidance and that the conversations will include the question of lay representation. I am particularly heartened by that because I felt that lay representation might be neglected. I am very sensible of the criticisms made by the noble Lord, Lord Platt, about the difficulty of drafting these rules and of dealing with what is an experiment and possibly going through a cumbrous process for even the most minor departure in treatment. I am indeed grateful to the noble Lord, Lord Aberdare, for not underlining that with further possible examples of how my Amendment was deficient. Nevertheless, I am not entirely satisfied with the reply that we have had.
I would reject the arguments, if we may so call them, put forward by the noble Lord, Lord Brock. The noble Lord, Lord Platt, explained in detail why he felt that these proposals could not be embodied in legislation. All that the noble Lord, Lord Brock, said was just a statement that it was not a fit subject for legislation and that it was better to leave things as they are and to leave it to the good sense of the medical profession. I 283 entirely agree about the good sense of the medical profession; I believe in it just as I believe in the good sense of many other professions. But I think that at times there is a necessity to write safeguards into legislation. If we come back to this matter at another stage, as possibly we shall, I shall invite the noble Lord, Lord Brock, to spell out in rather more detail the reasons for his statement, rather than that he should state that these proposals are not a fit subject for legislation.
As I look at the Amendment I am tempted to come back to it at another stage, having removed subsection (2) (which is the one laying down that the ethical committee must consider all experiments) because of the difficulty of defining experiments—the point put forward by the noble Lord, Lord Platt—and also subsection (3). I must say that I am one who is a strong fighter for the patient. I believe in telling the patient as much as possible. I see no reason why a patient should not be told about every bit of his treatment and his agreement obtained for the treatment. I see that subsections (2) and (3) may well be defective, but I do not see why we cannot say in legislation that we should have ethical committees in every institution, seeing that we have so many of them already and that, by general consent, they do a very good job of work. In asking leave to withdraw the Amendment—and in this I hope I have the agreement of the noble Lord, Lord Strabolgi—I must say that I may bring it back at another stage.
§ Amendment, by leave, withdrawn.
§ Clause 10 [Co-operation between Health Authorities and local authorities]:
§ 4.43 p.m.
LORD INGLEWOOD moved Amendment No. 93A:
Page 11, line 23, after ("another") insert ("and with adjacent Health Authorities in Scotland")
§ The noble Lord said: I beg leave to move the Amendment standing in my name, and, if the Committee agrees, I think it would be simpler and would save a little time if with this Amendment we considered Amendment 97A, which is really consequential. I think it appropriate 284 that this Amendment should be debated so soon after the Ministerial statement. The last words of the Leader of the House were, "good community relations", and it is in that spirit that I have put down this Amendment. I should like to see us, when considering this Bill, fill a gap in the provisions for co-operation which badly needs filling. I am not going to repeat the general arguments referred to in the debates two days ago. I described them in some detail during the discussions on the Scottish Bill, when similar Amendments were raised on, I think, grounds which were more nationalist than in the interests of health or the merits of the Amendments. I hope that on this occasion the noble Lord who is in charge of the Bill will treat these Amendments on their true merits.
§ When we were considering the Bill two days ago the noble Lord spoke of existing liaison across the Border. As I have rather special opportunities to check the extent of such liaison I attempted to do so in the intervening 48 hours. The best information I can gather is that while there is some liaison on the hospital front there is almost none on the social services front, which is very important. If the noble Lord has information different from mine I hope that he will let the Committee have the details. In any event, I think it disturbing that we do not have provision for co-operation extended across the Border; the more so thanks to an Amendment to this Bill recently passed in your Lordships' House when treatment and appliances in the field of family planning were made more easy to obtain in England than they are at present in Scotland, under the terms of the Act.
§ Up to quite recently there was a stream of folk moving northwards to Scotland—not just from England but from Germany, Holland and other countries on the Continent—because they believed that it was easier to get married there. Now we shall see this process reversed. We shall see a stream of folk coming South—and Carlisle will be the place to which they will come in the main—in order to avoid some of the consequences of marriage. Surely I have given sufficient grounds for showing that the extension of the provisions for co-operation is relevant, and I hope that in his reply the noble Lord, Lord Aberdare, even if he does not like 285 these words (drafting an Amendment is not easy for a Back-Bencher when consequential Amendments are involved) will agree that there is a real point here. If he does not like these words perhaps he will come back on Report with better ones.
§ LORD ABERDARE
I have listened with great interest to my noble friend Lord Inglewood and I remember listening to him when we were debating the Scottish Bill and he was speaking on the same point. Indeed we are most anxious to foster good community relations over the Border, but I have no evidence that there are not good relations at the moment. The sort of co-operation we expect between neighbouring health authorities is a matter of sensible administration. If there were a difficulty it would be possible under the Bill for the Secretaries of State, in the last resort, to use their powers of direction, but I do not think there is any reason to suppose that this would be necessary.
The co-operation that exists across the Border at present seems to us to be perfectly satisfactory, without statutory provision, and nothing in the Bill upsets the present arrangements. Certainly the reshaping of administrative boundaries need not interfere with local clinical relationships. As things are, people from Cumberland and Northumberland receive inpatient treatment in Scottish hospitals, and, similarly, patients from the Scottish side of the Border go to hospitals in Carlisle and Newcastle. There is also a coordinating committee covering the relevant area of the Newcastle hospital region and Dumfries. The senior administrative medical officers of the Western Regional Hospital Board in Scotland and of the Newcastle Regional Hospital Board in England attend the meetings of this committee, and community nursing staff also attend general practitioner patients on both sides of the Border. I am sure that this kind of liaison will continue after 1974.
We think that these matters are best left to local arrangements between the Health Authorities in the Border area. There does not appear to us to be any good reason to impose a particular obligation on Health Authorities in the Borders which does not in fact arise with Health Authorities in the rest of England 286 and Wales. Moreover the effect of the noble Lord's first Amendment, No. 93A, would be that while both sets of English authorities would have a duty to cooperate with the adjacent Scottish Health Authorities, there would be no reciprocal obligation, because there was not written into the Scottish Bill the clause that the noble Lord wanted to put there.
§ LORD ABERDARE
No, I am just suggesting that it is a little unfair for one to be black and the other to be white. I realise as well as the noble Lord does how difficult it is to word these Amendments, but his Amendment would certainly require English health and local authorities to co-operate with Health Authorities but not with local authorities in Scotland. But that, as the noble Lord says, could quite easily be rectified. Basically we are content with the present arrangements. Area Health Authorities in the rest of England and Area Health Authorities in the rest of Scotland are left under the Bill to co-operate naturally among themselves, and I should have thought this was a reasonable thing to expect them to carry on with without the necessity of writing a clause into the Bill.
On the noble Lord's Amendment No. 97A, on which I think he was talking also, I am not quite clear what he has in mind. The effect of the Amendment would be to require the Secretary of State to consult with Scottish local authorities about the setting up of joint consultative committees between the Health Authorities and local authorities in Northumberland and Cumberland. I do not think this is really what the noble Lord meant. I think he was perhaps meaning that there should be some form of joint consultative committee as between adjacent areas in England and Scotland. Again, whereas it would be quite possible to do this, we see the functions of these joint consultative committees as drawing together the health and social services and the other local authority services and ensuring co-operation among themselves; and they are not intended to be links between the two Health Authorities or the two social service authorities. There are difficulties here, and it would be 287 better to leave it to the good sense of Area Health Authorities and local authorities to co-operate across the Border, as we have no reason to believe that they are not doing so at present and will not do so in the future.
I do not want to take up a lot of time now or to press the Amendment to a Division, not least as the reply my noble friend has given me was a good deal more sympathetic, I thought, than the reply which the Scottish Minister gave me on the previous Bill. The noble Lord's last sentences, I thought, if they are read by those concerned, will give them a lead that I hope they will follow and will help to achieve what I should like to see done. Therefore, although I do not admit that the position is entirely satisfactory, and while there may be other opportunities of drawing the attention of Ministers to this particular field, I would on this occasion beg leave to withdraw the Amendment.
§ BARONESS SEROTA
Before the noble Lord withdraws the Amendment (I think I am just in time), I wonder whether I may say a word or two, because where the noble Lord, Lord Aberdare, has given the Committee quite an encouraging picture of the co-operation which he believes exists, I cannot believe that the noble Lord, Lord Inglewood, would go on about it in the way that he does if things were really as rosy as we are being led to believe. What I should like to suggest to the noble Lord, Lord Aberdare, is that he might possibly through discussion find a way of making his words known to the authorities concerned, and with which the noble Lord, Lord Inglewood, is so concerned, because it seems—and I was recently in that beautiful part of the country in which the noble Lord, Lord Inglewood, resides—that there are certain problems on the ground and that a bit of tactful encouragement now might improve the situation and the services for the consumers and the patients. I can think of no-one who could do it better than the noble Lord, Lord Aberdare, if he were to put his mind to it.
§ LORD ABERDARE
With that graceful finish, I could hardly not accept what 288 the noble Baroness has suggested, and I will certainly do that. I was impressed by what the noble Lord, Lord Inglewood, said: that, although he admitted that the health services were fairly well integrated as regards the Border, perhaps the social services and the local authorities were not quite so co-operative. I will certainly take further heed of this.
§ BARONESS HYLTON-FOSTER
May I ask the noble Lord, Lord Aberdare, whether he will bear in mind also that there have been threats that the East-West railway line is going to be cut and therefore the only communication will be North and South?
After the kindly and welcome support from the Front Bench opposite, I can only say that the noble Lord, Lord Aberdare, was right. I am told that they are less good. I can only confirm that I would not repeat these arguments unless I thought there was ground for improvement. But in the light of the reception that my Amendment has had to-day, I beg leave to withdraw it.
§ Amendment, by leave, withdrawn.
§ 4.57 p.m.
§ LORD GARNSWORTHY moved Amendment No. 96:
Page 12, line 30, at end insert—
("(ee) provide for the employment of such officers as may be required by a joint consultative committee or sub-committee appointed by such committee, and for the remuneration, and the terms and conditions of service, of such officers;").
§ The noble Lord said: Clause 10 requires Health Authorities and local authorities to co-operate with one another in order to secure and advance the health and welfare of the people. To this end, there shall be joint consultative committees who shall advise the Area Health Authorities, and in the case of non-metropolitan counties the local authority for each county and for each district in the area, oil the performance of their duties and on the planning and operation of services of common concern to those authorities. Under subsection (4) the Secretary of State appears to have wide 289 powers by order to provide for any matter in relation to the joint consultative committees, including a requirement for authorities represented to make reports to him on the work of the committees or any sub-committee. However, there is no specific reference to the power of the joint consultative committees or subcommittees to employ and remunerate staff and to establish their terms and conditions of service. The Amendment seeks to remedy this defect. It would be extremely helpful to know what the Government have in mind in regard to this matter. I beg to move.
§ BARONESS YOUNG
In considering the Amendment moved by the noble Lord, Lord Garnsworthy, I think it is important to have in mind the purpose behind the joint consultative committees. This is, as set out in Clause 10, to get the co-operation between the new Health Authorities and the local authorities on the many matters which will be of mutual concern to establish the best possible service for the patient or consumer of the particular services. In order to make these committees effective, it is intended that both the Health Authorities and the local authorities will second members of their staff to do the necessary work. This will in effect mean that there will be close co-operation between the staff both of the Health Authorities and of the local authorities. They will both be serving the same committee and will give the staff co-operation at the same time as one hopes one will get the member co-operating in order to get the kind of service that we want over this whole range of matters of common concern. It is for this reason that we feel this Amendment is unnecessary, because the staff will be there. We very much hope that the noble Lord will withdraw this Amendment.
§ LORD GARNSWORTHY
I am grateful to the noble Baroness for the care she has taken in replying. I am minded at the present moment to withdraw the Amendment, to study very closely what she has said and, if I may, reserve the right to come back at a later stage on this matter. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clauses 10 and 11 agreed to.290
§ Clause 12 [Supply of goods and services by local authorities]:
§ 5.2 p.m.
LORD AMULREE moved Amendment No. 98A:
Page 14, line 19, leave out subsections (2) and (3).
§ The noble Lord said: I should be grateful if your Lordships would allow me, in speaking to Clause 12, also to speak to my Amendment to Clause 18. I am concerned about the position of the medical social worker. I would point out that the term "medical social worker" is really a misnomer. These people began as almoners in 1895 and they became medical social workers some time in the 'fifties. They are not really social workers in the sense that they should come under the departments of social services of the local authorities, because they are more properly part of the medical group of people who treat patients in hospital. They are highly qualified and highly skilled people. A number of them have a university degree, and they rather fear that if they are taken over by the social services their very skilled work might become rather impersonal welfare work of a simple general type, so that they will not be able to exercise their proper skill. There are not a great number of these people—in 1969 they numbered about 1,000, of whom the bulk worked in hospitals.
§ The Seebohm Report says that all social workers should be brought together under one heading without regard to the specialised experience that some people may have had. I think it will be very difficult now for these social service departments to take on the further work entailed if they absorb the work done by the medical social workers and also the psychiatric social workers. I have not yet referred to the latter, but they are in the same category as the medical social workers. Therefore, I would suggest to the noble Lord that the medical social workers should continue to be employed by the Health Service and not by the social services departments. It would entail a certain adjustment to their salaries because at the present time they are not paid as much as the local authority social workers, nor do they have the same kind of promotion possibilities—what I believe is now called the career structure.291
§ Referring to Clause 18, it says that no person shall be transferred from one department to another without their consent. People have suggested that that may solve the question of the medical social worker. It does not really solve it, because it does not meet possible problems about transfers for the future. It would help those whom it is proposed to transfer away at present, but it would mean that the whole field of medical social work would be taken over by the local authorities. That is what I should very much like to prevent. There is a good deal of support from other members of my profession on this line, and therefore I beg to move.
§ LADY RUTHVEN OF FREELAND
I do not have as much knowledge of the medical social workers as I have of the psychiatric ones, but the psychiatric social workers are definitely part of the team in the hospital. I think it would be the greatest mistake in the world if they were to become part of the social services as opposed to part of the Hospital Service, because they would not really be performing the job for which they have been trained; it would mean breaking up an extremely good team in the psychiatric hospital. I should therefore like to support my noble friend Lord Amulree on this Amendment.
§ LORD PLATT
I should also like to support the noble Lord, Lord Amulree, very strongly indeed. As the noble Lady, Lady Ruthven of Freeland, has spoken for the psychiatric social workers, so I can speak for the medical social workers in hospital. They are part of the hospital team; they do not belong to somebody else. They are trained to do medical work with patients. When I was head of a unit, the medical social worker used to come into the weekly discussion with us when we discussed cases of particular interest or importance on the wards, and she would put in her comments on the social circumstances of the patient and also on the way in which we could follow up certain patients and what we could do for them. She educated us as to the possibilities of help for ex-hospital patients and so on. These people are an absolutely essential part of the medical team. Not only am I most surprised to find that they are being, as it were, 292 pushed out to some other section of the Health Service—I thought that the whole point, or certainly a major point, was to bring all the medical services together; and these people are absolutely an essential part of the medical service—but I am even more alarmed to hear from the noble Lord, Lord Amulree, that they do not even get paid as much as these other workers.
§ BARONESS SEROTA
The noble Lord, Lord Aberdare, will recall that on Second Reading I asked the Government whether they had come to a decision on this matter. Noble Lords who have spoken, as I have listened to them, seem to have assumed that the decision has already been made. I am aware of some of the difficulties facing the Government in this matter, and of some of the more complex problems involved; but my only concern is that this period of uncertainty, which has inevitably created great anxiety among members of the profession, should come to an end as soon as possible. So I should like to-day to ask the noble Lord whether, when he replies, he can tell the House what is the intention of We Government.
§ 5.10 p.m.
§ LORD ABERDARE
I am glad that the noble Lord, Lord Amulree, has raised this point; it must be right for us to speak about it during the Committee stage. I am fully aware of the feeling that exists among a large number of hospital social workers and some of their colleagues in the hospital service on this point. The noble Lord said that something in the region of a thousand people were involved. I think I have received a letter from very nearly every one over the past few days. I am well aware of their anxieties and of the case that they have made. I must say straight away that the position is still under review and no decision has yet been made. We are anxious to hear all the views on it and to make sure that we are in a proper position to come to a decision; but I take the point that the noble Baroness has made that an early decision, rather than a later one, might relieve some anxiety.
The reason why Clause 18 is drafted as it is is that it is based on the recommendations of the Working Party on Collaboration. The Working Party took full heed of all the arguments that were 293 advanced against the transfer of hospital social workers to the social services, and particularly took note of the strong feelings of the hospital social workers themselves. Nevertheless, the basic proposition on which their recommendations are founded are that health skills should be deployed from a National Health base and social work skills from a local authority base. Consequently they recommended that hospital social workers should be transferred to local authority employment; although it is right to say that the clinicians on the sub-committee which initially considered this issue agreed with the noble Lord, Lord Platt, and dissented from the recommendation.
In making the recommendation the Working Party noted that an important factor which had been ignored in the case presented by the hospital social workers is that social work support is at present very unevenly spread in the hospital service, and that for many hospitals the need is not to safeguard existing standards but to provide a service. They also pointed out that the separation of this comparatively small group of social workers, at a time when divisions between various groups of social workers are breaking down, would in the long-run place the hospital social workers at a disadvantage. Finally, the Working Party concluded that the client's needs are likely to be predominantly outside the hospital, with the hospital experience forming an interlude only; and that the organisational structure best suited to meet this situation would be one in which the hospital social worker is a member of the same team as social workers employed in the community services, with access to those services as a partner in the team. I put that on record as being the reason why the Working Party came down the way that they did, and that is the reason why Clause 18 is drafted as it is. I would reiterate that we have not yet made a decision, and I would also point out that the provisions in Clause 18(4) are permissive; they do not provide for transfer on the day appointed for other Health Service staff, but for transfers to be on such day or days as may be determined by or under the order.
My right honourable friend the Secretary of State has recently received comments on the many recommendations made by the Working Party from a large 294 number of interested organisations in both the health service and the local authority fields, and he will be considering those in the very near future with a view to reaching decisions on the various recommendations, including the matter of hospital social workers. On Tuesday last he received a deputation from a group of hospital social workers in order to hear personally the views of those who are opposed to the proposed transfer; and final consideration of this question has also been awaiting the outcome of that meeting. I am afraid that that is all I can say to the noble Lord at the present moment. I can only assure him that we are fully seized of the importance of this matter.
§ LORD GARNSWORTHY
The Minister has indicated that the matter is under review. The fact that he has agreed to make an early decision is to the good, and everybody wants that. Can he give an indication that that decision will be made before the Bill leaves this House? It would be reassuring if we knew that we were going to have an opportunity of considering what the Government may decide.
§ LORD ABERDARE
I should not like to make a commitment of that sort just at the moment. I hope that we shall be able to speak about it in the course of the Bill. I will take heed of what the noble Lord says; but I do not think he would expect me to commit my right honourable friend off the cuff at this particular stage.
§ LORD WYNNE-JONES
I wonder whether the Government have given consideration to another possibility in this matter. In a totally different field they have emphasised the importance of what they call the consumer/contractor relationship. Listening to the arguments they put forward I thought that what is concerned here is that on the one hand one has the bodies that supply the actual service, which at present is under the hospitals. The other body, which can be regarded as the local authority, is responsible for representing the needs of the patients, the consumers outside. Is it possible that one can have a service which is entirely administered by the hospital but the demand for which comes from the local authority—perhaps even with a grant from the local authority? This is 295 the idea that one can preserve the closeness of relationship with a hospital which, one feels after listening to the arguments that have been put forward, seem to be valuable and important, with at the same time the expansion to which the noble Lord referred, where the need is great, which could come from the local authority.
§ LORD ABERDARE
I am grateful to the noble Lord for his constructive suggestions. We are considering a number of various possibilities of this sort between the two different authorities.
§ LORD AMULREE
I am pleased to know that no decision has yet been taken, and I share the hope of the noble Lord, Lord Garnsworthy, that a decision will be come to before the Bill leaves your Lordships' House. Before I withdraw my Amendment I would point out that two of the medical members on the Working Party did not agree with the recommendations. I trust that, in common with what has been said by the noble Lord, Lord Platt, who has explained the position of medical social workers very well, that will bear a good deal of weight with those who have to make this decision. In the meantime, I beg leave to withdraw the Amendment.
§ LORD PLATT
Before leave is put to the Committee, may I raise a question on procedure? Do we have to agree with a clause which many of us—even the majority—do not agree, with no assurance that before the Bill is passed by your Lordships' House this matter will be settled?
§ LORD ABERDARE
This clause, Clause 12, has a meaning independent of the arguments about the transfer of hospital social workers. It puts a duty on local authorities which will operate, whether or not there is a transfer of this particular hospital social worker class. I hope the noble Lord will allow the clause to stand in the Bill, although he may have other views on the hospital social worker.
§ LORD CHAMPION
There seems to be some misunderstanding, does there not? If the noble Lord, Lord Amulree, withdraws his Amendment, it will be for the noble Lord, the Deputy Chairman of Committees, to put the clause to the 296 House. The noble Lord, Lord Platt, or anyone else, can then come in and discuss the clause at that stage.
§ Amendment, by leave, withdrawn.
§ Clause 12 agreed to.
§ Clause 13 [Voluntary organisations and other bodies]:
§ 5.20 p.m.
§ LORD GARNSWORTHY moved Amendment No. 99:
Page 14, line 30, leave out from beginning of line to ("arrange") in line 31 and insert—
("If the Secretary of State, after consultation with the staff representative body, is satisfied—
§ The noble Lord said: I hope your Lordships will appreciate that we on these Benches are doing everything we can to expedite the Business, while ensuring that due consideration is being given to matters we think of importance. Clause 13 enables the Secretary of State to arrange with voluntary organisations and other bodies to assist in providing any service under the Health Service Act. The Amendment would require the Secretary of State, before exercising his powers, to satisfy himself that Health Service employees were not, and could not be, made available to perform the services in question. He would also have to be satisfied that the exercise of his powers would not prejudice the continued employment, or the terms and conditions of employment, of any such officers. Before reaching a decision in the matter, he would be required to consult with the staff representative body.
§ I have moved the Amendment with brevity, but there is a very good deal of anxiety in regard to this matter and, despite my brevity, it nevertheless is quite a serious matter so far as those in the Service are concerned. If we could be given some assurance that in point of fact the procedure suggested by the Amendment is acceptable to the Government in principle, then the purpose of 297 moving the Amendment will have largely been served. But how I may be able to dispose of the Amendment presently will depend upon the reply of the Minister.
§ LADY RUTHVEN OF FREELAND
I want to say a word on the Amendment of the noble Lord, Lord Garnsworthy. I do not think he has quite understood what a voluntary worker does. Voluntary workers have never replaced employees of the Health Service or the social services. They are volunteers and their voluntary service complements and supplements that of the professional—never replaces it. If the Amendment of the noble Lord were accepted it would entail every voluntary worker who worked for the National Health Service obtaining a signed certificate from, I think, the Secretary of State, and I believe also from Mr. Victor Feather, or whoever was the head of the Trades Union Congress. I cannot see that that is going to be a workable arangement. Perhaps the noble Lord has not understood what a voluntary worker is. The voluntary worker never takes the place of the trained and proper employee of the Health Service, but only assists and complements the work of the Health Service.
§ BARONESS HYLTON-FOSTER
May I come into the discussion because I raised—I was going to say "this hare" on the Second Reading, when I reported that the Confederation of Health Service Employees were making quite a number of objections to the use of volunteers. I understand that a particular person who made those objections has had time to think about the whole matter and realises now that some of the objections were perhaps rather stupid, and were probably spoken about in a hurry. I would also ask whether, if this Amendment is agreed to, it would prevent volunteers from going in to help either in the community or in a hospital in the event of some sudden disaster. There is not time then to consult: there must be some system agreed beforehand. That is the whole point of volunteers, or of certain types of volunteers anyhow—that they go in in a crisis, and go in quickly.
The next point I would make is that they go in with the knowledge and experience of what it is they are going to do. In disasters it is no good, for instance, having people who have never been into 298 the hospital before, because they would not be of the slightest use. In order to be of use they have to be allowed to go either to work in the community or to work in hospitals so as to gain experience. This particular C.H.S.E. member who was objecting to volunteers may perhaps have had his toes trodden on by some volunteer, who perhaps had much good will but no experience and just rushed in and helped without any preparation or training and without knowing what one would have to do. That might make trained personnel unhappy and unsure of their jobs. That is why I should like to ask again that thought is given to the use of volunteers, and to the point that they should be prepared and trained, so that these problems are avoided.
§ LORD GARNSWORTHY
I wonder whether I might point out that the words appearing at the side of Clause 13 in the Bill are "Voluntary organisations and other bodies". Clause 13 begins with the words:The Secretary of State may, where he considers it appropriate, arrange with any person or body (including a voluntary organisation)…".If there is confusion, I think it is not of my making.
§ 5.26 p.m.
§ BARONESS YOUNG
In answering the noble Lord, Lord Garnsworthy, I would begin by saying that the last thing anyone would wish would be to cause any kind of fear or upset among hospital staff on these arrangements. It is the intention of the Government that the arrangements proposed in this Bill should be a continuation of present practice. I am very grateful to the noble Lady, Lady Ruthven of Freeland, and to the noble Baroness, Lady Hylton-Foster, for what they have said on this matter, because the present practice is that volunteers should be additional to paid staff and not a substitute for them. We feel that any kind of centralised machinery, such as that which might be proposed in this Amendment, would be much too insensitive to the kind of needs and emergencies which could well arise in hospitals where voluntary help would be necessary, and might in fact stop voluntary help in situations in which hospitals would be glad to have it. We see in fact that volunteers complement paid staff, and they are employed in response to 299 local needs—the kind of situations which often cannot be met by professionally trained staff because there simply are not sufficient professionally trained staff to go round.
In answer to the last point raised by the noble Lord, Lord Garnsworthy, I understand that at present Regional Hospital Boards and local health authorities have contractual arrangements for some of the services to be provided by voluntary organisations and others who may include individuals such as the sole proprietor of an establishment providing appropriate care and treatment. This clause covers exactly that kind of arrangement. I hope therefore that this answers his point and that he will feel able to withdraw his Amendment.
§ LORD GARNSWORTHY
I am grateful to the noble Baroness, Lady Young, and also to the noble Lady, Lady Ruthven, and the noble Baroness, Lady Hylton-Foster, for the interest they have taken in the Amendment. I think it was quite important to raise this matter, and it was important that we should have the statement which we have just heard from the noble Baroness, for which I thank her. She has defined the different roles of the professional worker and the voluntary worker and has made it clear that, so far as the latter is concerned, the volunteer is only, and never will be used otherwise than as, complementary to the professional worker. It is good that we should have had that statement from the Minister, and that it is on the Record. In the light of what she has said, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 13 agreed to.
§ 5.32 p.m.
LORD STOW HILL moved Amendment No. 100A:
After Clause 13 insert the following new clause:
§ "It shall be the duty of the Secretary of State to take all reasonable steps to promote and organise research in all fields of medical science, diagnosis, treatment and technology, and to make available all such finance and other resources as he considers reasonably necessary for that purpose."
§ The noble and learned Lord said: The object of this Amendment is to place 300 fairly and squarely upon the shoulders of a particular Secretary of State the duty of attending to research. The reason I tabled this Amendment is that it seems to me—and I shall seek to call the attention of the Committee to the relevant sections—that at the moment there is no provision in any Act of Parliament which says, with regard to any Minister, "You, and you yourself, are personally responsible for making sure that research is adequately catered for". If I may digress for a moment to seek to make good that point. I think the relevant legislation starts with Section 2 of the Public Health Act 1919, which placed a duty, but in qualified terms, on the then Minister of Health to initiate and direct research.
That section survives, and it was repeated, but again qualified, in Section 16 of the major Act, the National Health Service Act 1946. That section is entirely permissive in form. I think it will not be taking up the time of the Committee unprofitably if I direct the attention of your Lordships to the terms of Section 16. That section provides that the Minister (as he then was, but now the Secretary of State)
may conduct, or assist by grants or otherwise any person to conduct research into any matters relating to the causation, prevention, diagnosis or treatment of illness or mental defectiveness.
That is far from imposing a precise and specific duty upon the Minister to take it upon himself to exercise a general supervision in the promotion of research. I submit that that language is short of what is required in this extraordinarily important department of human affairs. In the terms of the present Bill that Section 16 is slightly extended, though not altered in principle, and a part of it is cancelled by one of the Schedules to this Bill. But in principle if one asks oneself whether one can find in our legislative code any precise provision such as I have sought to formulate in the new clause the submission I make is that one cannot: the nearest one gets to it is the tentative language in Section 2 of the 1919 Act. But that falls far short of what is required.
§ The immediate reason for my raising this question is the following. A very distinguished doctor of my acquaintance, who holds an appointment in a famous medical school, intimated to me some 301 considerable time ago that he would like the opportunity of putting before some member of the relevant Department certain of what he described as "grass root" problems in the matter of research which had occurred to him in the course of his clinical work. I wrote to the Secretary of State, Sir Keith Joseph, and asked whether he would be so kind as to arrange a meeting of that sort. I received a very charming letter in reply, in which he told me that it was the responsiblity of his colleague, the right honourable lady, Mrs. Margaret Thatcher. I have no complaint as to the terms of the letter; it could not have been more charming or more agreeable in tone. Then in due course I received a letter, also extremely kind and courteous, from Mr. Norman St. John-Stevas, who told me that Mrs. Thatcher had received my letter and he had been asked to reply to it. He said that this was not a matter for him; it was a matter for the University Grants Committee, and that as the University Grants Committee had already had its allocation of funds for the years 1972 to 1977 he thought I would probably agree that no useful purpose would be served by my discussing the matter with him. So we were passed comfortably and courteously from hand to hand, only to be politely but firmly "dumped" in the end.
§ That is the present position as I see it under the existing legislation. I am sure that those letters are, technically, absolutely accurate, and that is why it occurs to me to make the proposal to your Lordships that we should try to end that position by substituting for the imprecise language of the existing 1919 and 1946 Acts something much more positive and comprehensive in terms. After all, by this Bill we are overhauling the whole structure of the medical health service in this country. I may have missed something, but I hope I have not. I have examined the terms of the present Bill to see whether I can find in it anything that deals with research, in the sense that I have sought to argue it should be dealt with. Clause 2(2) states in general terms the duties which are incumbent upon the Secretary of State for the Department of Health and Social Security. There is no reference to research in any precise terms in that subsection, and succeeding clauses in the Bill impose upon the Secretary 302 of State other duties, which are formulated in those later clauses. I think the Ministers will agree with me that I should be right in saying that again if one goes through them one finds nowhere any language which says in precise terms, "You, the Secretary of State, are responsible for research".
§ In Clause 43(4) one finds a power in the Secretary of State to make available to medical schools, for the purposes of research, premises and resources. That again is far from what I am respectfully contemplating in the language which I am asking your Lordships to consider. If, therefore, we do not seek to supplement in some way what in my submission is an omission from the Bill, this Bill will in due course become an Act and, in my submission, research will not be properly catered for.
§ I have of course studied closely the Rothschild Report and the most valuable and far-reaching debate upon it which took place in your Lordships' House in February of last year. For the purpose of my argument I do not think it is in the least necessary for me to trench on the matters discussed in the speeches which noble Lords delivered in the course of that debate relating to what was the proper distinction between primary and applied research, whether the consumer-contractor principle was appropriate, whether the Haldane principle should be strictly adhered to in order to preserve the independence of research work and so on. I do not feel that any of those matters arise because I am simply seeking to ask your Lordships to say that the Secretary of State should be, as it were, the backstop to whom matters relating to research could be referred and who would be under a responsibility in regard to them if that responsibility did not lie elsewhere.
§ I would have thought that it was a basic principle of our Constitution, which over the centuries and decades had served us extremely well, that a Minister should be responsible to Parliament, and through Parliament to the public of this country, in relation to every important department of our activities. One is tempted towards a truism in stating that research in the medical sphere is one of the most important. The sort of point that the distinguished doctor to whom I have referred put to me was important in this context. 303 He said, "Now and again—unfortunately, not very often—you get an individual doctor who has an idea. This applies not only to doctors holding appointments in medical schools but to doctors in teaching hospitals and doctors generally. This idea leads him to think that if it were pursued it might possibly put humanity on the track of a really important discovery in the field of medical health."
§ A doctor in that position can put the matter to the academic board in his own hospital, where he may get it accepted. If it is turned down—and it stands to reason that only a limited number of ideas can be accepted—he can apply for an allocation of public finance from the Medical Research Council or a similar body, or he can try to get what I believe in the medical profession is called "soft money" from one of the many private foundations which make money available for research. Having mentioned the Medical Research Council, I wish to emphasise emphatically that I do not seek to attribute the least adverse criticism to it. I know little about it, though all I have read about it has been in glowing terms in praise of it. I say that particularly in the presence of the noble Viscount, Lord Amory.
§ The ordinary doctor may get an allocation from a private body—some "soft money "—but it is almost certain in the nature of things that the allocation will be for a limited period; for perhaps one or two years. In those circumstances, if he wishes to pursue his idea and really thinks that he is on to something important, he must engage, on his own responsibility, research assistants, and in doing so he can offer only a limited appointment. He is bound to say to people who may have family responsibilities, "I cannot guarantee you employment beyond the end of the year because the grant may not be renewed. Will you accept the job on that basis?" He must, in effect, set himself up as an employment agency and offer employment on terms which it is difficult to expect people to accept.
§ I am conscious that a number of hospital appointments are on a short-term temporary basis, but the technical assistant in that position vis-à-vis an ordinary doctor surely gives rise to a serious problem. What, in any case, is the result? The result is that there is the strongest disincentive in the way of the individual 304 doctor who really may believe in an idea from pursuing it with any insistence. He may drop it, probably being discouraged or feeling that he cannot take on the responsibility of employing on his own account research assistants whose aid would be invaluable in exploring the idea. I do not know how many valuable new discoveries in research may have been lost in this way. I do not know what was the exact history of Sir Alexander Fleming's discovery, though I believe that his position was a little like that. He showed great courage and persistence in pursuing the train of invention on which he had alighted, with the result that millions of lives all over the world have been saved.
§ If one goes back to the earlier debate it is not as if there is nothing to argue about—as if everything in the field of research works perfectly and without criticism. As I leafed over the pages, including the speeches in that debate as they were recorded in Hansard, I noted that many noble Lords who speak with enormous authority in this field pointed to the fact that there were matters which they would like to see dealt with. There is, so far as I know, no Minister, no Secretary of State, who can, as it were, be put under the hammer if they are not dealt with. I do not think I need delay your Lordships by citing them, but the noble Lord, Lord Stamp, expressed views, as did the noble Lord, Lord Platt, the noble Lord, Lord Brock, and the noble Lord, Lord Avebury. Both said they would have liked this or that to have been done in research. But to whom is one to turn? The Medical Research Council and the other Councils have limited but precise objectives which they discharge admirably. Nevertheless, one needs somebody who is under a precise responsibility to take up the kind of points those noble Lords raised in that debate.
§ The noble Lord, Lord Platt, who I see in his place, said that so far as he was concerned the Department of Health and Social Security carried out research but that he personally would have liked to see very much more of it done on their part. I think that that was the tenor of his argument. The noble Lord, Lord Avebury, would have liked a fourth Medical Research Council to co-ordinate the work of the M.R.C. and the work of the D.H.S.S. Other noble Lords raised 305 similar points. I do not say that they are points that I would put forward. I do not know that I am qualified to do so. Nevertheless, they are put forward by noble Lords of great authority and there should be somebody responsible for seeing that they are investigated, along with the kind of point put to me by the doctor whose opinion I have quoted.
That is the objective of this Amendment. I emphasise that it is not tabled in any sense of hostility or even criticism. I seek to point to what seems to me, unless there is something I have missed, to be a hiatus in the present form of the Bill and perhaps your Lordships will think it not unuseful to call attention to the specific problem of research which is not, as it were, separately dealt with in the Bill as a compound entity of its own and one of enormous and transcendent importance. For this reason we have chosen the language of the Amendment carefully. The duty it imposes on the Secretary of State is
… to take all reasonable steps to promote and organise research in all fields of medical science … and … to make available all such finance and other resources as he considers reasonably necessary for that purpose.
Those words have a cogency about them which in my submission is necessary because they would affect the quantum of the Secretary of State's Vote; he would have to provide for the discharge of that duty in formulating the Vote which he puts before Parliament. It is for these reasons that I and my noble friends who are associated with me have put down this Amendment in the form of a new clause. I beg to move.
§ LORD PLATT
It seems to me that the noble and learned Lord, Lord Stow Hill, has made out a good case for his Amendment that a duty might be put on the Secretary of State. I feel that it is perhaps a political decision rather than a medical one and I do not know that I feel really qualified to take strong sides one way or the other. What I look forward to is to hearing the Minister's reply and to hearing him tell us, I hope, that the recent appointment to the Department of a Chief Scientist (who happens to be somebody I know extremely well who used to work on my unit and is, therefore, of course highly qualified for the work) is going to make a big difference 306 to the situation and that his presence there may facilitate research of the kind to which the noble and learned Lord, Lord Stow Hill, quite rightly draws our attention.
§ 5.51 p.m.
§ LORD BELSTEAD
The noble and learned Lord, Lord Stow Hill, has explained clearly the statutory position and I certainly shall not repeat what the noble and learned Lord can describe much more expertly than I can, except just to add that I think these powers are appropriately extended by Schedule 4, paragraph 14, to this Bill to provide also for research… into such other matters connected with any service provided under the National Health Service Acts 1946 to 1972 as the Secretary of State considers appropriate.In distinction from the noble and learned Lord, Lord Stow Hill, I would submit to the Committee—and I must say, with distinguished doctors among your Lordships, I really can do no more than submit to the Committee—that the present statutory framework of the Acts of 1919, and, of course, the main Act of 1946, have proved adequate for the needs of the National Health Service and, with the minor amendment which I have just mentioned, will, the Government believe, be appropriate for the reorganised Service.
The noble and learned Lord has criticised the co-ordination of medical research. It strikes me, however, as the Amendment itself demonstrates, that improvement of the present machinery for research is perhaps a little easier said than done. Noble Lords can correct me in a moment if I am wrong, but, as I understand it, the present machinery is this. My right honourable friend the Secretary of State for Education and Science is responsible for the total expenditure and, incidentally, the composition of the Medical Research Council, and for the block allocation of recurrent grants which are allocated in turn to the universities by the U.G.C., and in their turn the universities can divide their allocations at their discretion between teaching and research. In addition, as the noble and learned Lord mentioned, the Department of Health and Social Security can commission or carry out research themselves, the voluntary organisions can conduct research and, of course, industry can also conduct research.
307 We have listened to the noble and learned Lord saying that the object of the Amendment is to lay a duty specifically on the Secretary of State for Social Services to "see to"—that was the expression which the noble Lord used—research. The noble Lord will, I hope, forgive me if I say that I am not entirely clear what relationship is intended between this Amendment and the duties of the Secretary of State under the two Acts quoted by the noble and learned Lord, Lord Stow Hill, nor am I clear what would be the relationship between this Amendment and the work of the Medical Research Council—or, for that matter, the work of the universities. The noble Lord told us the tale of events which in the end led his correspondent—who is a distinguished and devoted doctor, who was not wanting anything for himself but was wanting it for the unit in which he worked—nowhere. I regret that this occurred, and I regret the length of time which it took the noble Lord himself to receive negative replies, but I think I am right in saying that it was the case of a post-graduate medical school and there was a clear link here. This was not a passage with no ending at all. This post-graduate medical school had a link, not with the Departments with whom the noble and learned Lord kindly got into touch but with the university to which the post-graduate medical school is attached.
The other problem I find with this Amendment is that I do not see that it would draw together all the agencies for research which I have tried to enumerate. Nor, I am bound to say, would it affect the criteria on which the Government decide to support research, for I think I am right in saying that under National Health Service legislation the Secretary of State for Social Services could reasonably be expected to support—as he does now—only that research which offers reasonable prospects of valid scientific and competent contribution towards the overall aims of the Health Service. The noble Lord was so good as to refer to the recent White Paper, Framework for Government Research and Development (Cmnd. 5046). What I should like to put to the Committee is that the Government have introduced proposals for some pretty radical changes which have at least some bearing on this Amendment.
308 May I just mention two things? The first is the Advisory Board for the Research Councils, the setting up of which was announced on September 6, last year and which will advise my right honourable friend the Secretary of State for Education and Science on the Research Council system. It will advise her on the allocation of her science budget and promote a close liaison between the Research Councils. The noble and learned Lord, Lord Stow Hill, said that he thought there was really little in the White Paper that had a bearing on this Amendment. I would not be so impertinent as to disagree flatly with the noble and learned Lord, and I must not mislead the House on this particular point of the A.B.R.C., for the A.B.R.C. certainly do not advise Departments on the research which they will commission. I admit that; it advises my right honourable friend on the allocation of her science budget. There is no question, however, that the departmental members of the A.B.R.C. will know what their own Departments are doing, so that when the Board come to advise my right honourable friend on the allocation of her science budget they will be aware of the research which is going on between Departments and Research Councils.
The noble Lord, Lord Platt, referred to the second point which I wish to submit to the Committee; namely, the Chief Scientist. In paragraphs 20 to 22 of the White Paper it is said that the Department of Health and Social Security is to have a Chief Scientist, and the Department is certainly fortunate in the man chosen. He has been brought up by a very distinguished teacher. He is to have a small team of scientists whose main task will be:to help identify areas for which research is required to ensure that research requirements are stated clearly and to review the balance of the Department's research and development programme. In addition they will act as a link between the Department and the scientific community so as to develop discussions and partnership between the two.The White Paper refers particularly to the long tradition of liaison between the D.H.S.S. and the Medical Research Council and affirms that these links should and will be developed; and new arrangements made in the White Paper for financing research will provide the opportunity for the Department and the M.R.C. 309 to work more closely together. I can say to the Committee this evening that plans are already well advanced for the establishment of joint machinery for handling a substantial part of the funds available for medical research and for cross-representation in the policy planning structures of the two bodies. In talking about co-ordination I would submit that it is this last point, the new plans for closer liaison between the Department of Health and Social Security and the Medical Research Council, which is most relevant to the objectives of the noble Lord's Amendment. Although I have not met the absolute objectives which the noble Lord is putting forward, I would express the hope that the plans and the other information I have now submitted to the Committee may at least go some way towards satisfying noble Lords who are interested in this Amendment.
§ 6.0 p.m.
§ LORD STOW HILL
I am grateful to the noble Lord for his reply, but I hope he will not mind me saying that it really does not quite satisfy me. What I seek to do is to write this obligation into the Bill. The result of that would be that if there is ground for complaint of the sort that Lord Platt mentioned in the course of his speech, or Lord Brock or Lord Avebury, the Secretary of State, when the time for questions come in the other place, may find that he has to answer half a dozen questions about it. It will be put to him that he has a specific, precise responsibility to take all reasonable steps; that all reasonable steps have not been taken. He will be asked why not, and what is he going to do about it. That is my objective in seeking to write this new clause into the Bill. It is to place a constitutional responsibility on the Minister which forces him, when he comes down to the House of Commons and discharges his responsibility to honourable Members there, to submit to their questioning. That is the purpose of questioning in the other House and this.
I emphasise that Mrs. Thatcher, Sir Keith Joseph and Mr. Norman St. JohnStevas are Ministers I hold in the highest regard—may I say affection?—and I certainly do not seek to criticise in any hostile sense. But I seek to impose upon whichever Minister occupies the position of head of the Department of Health and Social Security a liability to be questioned 310 in the other House, or in this House through Ministers opposite, as to what he has done in order to discharge this precise responsibility, which at the moment is not put upon him, I submit, by any Act of Parliament.
The noble Lord quoted the provision of Schedule 4. I had that very much in mind; I read it carefully. I did not want to trouble the Committee by reading it out. In my respectful submission, it does not in the least qualify the wholly permissive tone of Section 16 of the National Health Act 1946—"the Minister may". What I seek to impose upon him is a precise and absolute duty to take reasonable steps to promote and organise medical research in all fields of medical knowledge. I am perfectly prepared to accept—and I am sure that the Minister is absolutely right—that the new steps that have been taken are extremely valuable and will be most productive of good, and I am sure that the Chief Scientist will be a most valuable officer to whom we and the public will be grateful over the years—he and his successors. But that falls short of what I am asking the Committee to do, which is to insert a precise statutory obligation into the Bill so that whoever occupies the position of head of the Department of Health and Social Security will be liable to questioning in the other place if there is ground for thinking that he may have fallen down upon that precise responsibility. That is my submission, and I must not speak again.
§ VISCOUNT AMORY
May I ask the noble and learned Lord, Lord Stow Hill, a question? I was following with very great interest what he said. His aim is very clear to us all and one we should all wholly agree with. But it seems to me that the specific terms he proposes in his Amendment clash head on with the responsibility of the Secretary of State for Education and Science. This worries me a little. I wonder whether he could ease my doubts, because I may have got it wrong. Her responsibilities are specific and clear under the general scheme for the running of research.
§ LORD STOW HILL
I am grateful to the noble Viscount. I had that point in mind, and my answer to it is as follows. What I seek to impose by way of duty on the Secretary of State for Health and Social Security is to take all reasonable 311 steps to promote and organise research. It would be perfectly reasonable in those circumstances, as I submit to the Committee, if he finds that a precise responsibility, perhaps in the field of education per se, is imposed upon another Minister. to say, "Well, it is not reasonable for me to trench upon that work". Equally, if he finds that the Medical Research Council is doing extremely valuable work, it obviously would not be reasonable to expect him to seek to re-do and duplicate the work the Medical Research Council is doing. The whole point of my argument is this, and this is the answer to the noble Viscount. As it transpired in the course of the debate on the Rothschild Report, there are a number of things which, in the opinion of noble Lords who speak with great responsibility, still need to be done and which fall outside these other responsibilities. I submit to the Committee that in regard to those matters it would be reasonable to expect the Secretary of State, who is, as it were, the back-stop on whom the ultimate responsibility lies, to say, "This is not properly catered for; it is therefore precisely within the sphere of residual responsibility which is imposed upon me; I will attend to it and do it myself". That is briefly the answer.
§ LORD BELSTEAD
May I say a word in attempting to reply to the points put out by the noble Lord. I hesitate to cross swords with the noble Lord on constitutional matters, because I have a feeling the noble Lord knows a great deal more about them than I do. As I understand it, my right honourable friend the Secretary of State for Education and Science has a responsibility for the science budget, and if questions are asked in another place it is up to my honourable friend to reply for the Government. As I also understand it—and here I am even more hesitant—there is a general duty in the 1919 Act laid upon the Secretary of State for Health and Social Security, and this was built upon in a permissive way, as the noble Lord says, by the Act of 1946 and now by Schedule 4, paragraph 14. None the less the Secretary of State has a general duty, as I understand it, under the 1919 Act, and he may well be called on, because of his general duty, to reply to questions on those matters in another place. What I must admit I am 312 not quite sure about—I admit my complete ignorance on this—is whether, after the proposals in the White Paper have been put into effect, we shall find different Secretaries of State and Ministers replying for their particular Departments if we are talking about research relating to their Departments. But that does not alter the general thesis I am putting to the Committee: that there is a Government responsibility.
May I say that the Government feel that there are difficulties in the drafting of this Amendment—not defects, but certain difficulties. Some of the words may refer to really too wide a field (to use one of the words in the Amendment) and could cause great trouble if the Amendment were accepted as it is. Would the noble Lord allow us to look at it. What I should like the noble Lord to bear in mind, if he is prepared to let us take it away and look at it, is that we are genuinely worried about the point which has been put forward by my noble friend Lord Amory: the possible clash of responsibility between Government and research which is not the business of the Government at all. The noble Lord had his answer to that, and on reconsideration we may find the noble Lord is absolutely right. But I must put this marker up at this stage. It really does worry us, and at the moment I am strongly advised that there can be no question of accepting the Amendment. If, with that strong caveat, the noble Lord would allow me to take it away for us to look at, I should be grateful. May I leave it at that?
§ LORD STOW HILL
I am extremely grateful to the noble Lord. He says that he would like to give it further thought. Not only am I personally very grateful to him for that statement but, if I have the assent of those who put their names to the Amendment, I shall be very glad, with the leave of the Committee, to withdraw it. That being so, I will not seek to answer the points which the noble Lord put to me, or I should be troubling the House with lucubrations of a troublesome legal sort. In view of what the noble Lord has said, I would ask your Lordships leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 14 agreed to.313
§ Clause 15 [Preservation of certain Boards of Governors]:
§ 6.11 p.m.
LORD ABERDARE moved Amendment No. 100B:
Page 17, line 15, leave out ("section") and insert ("Act").
§ The noble Lord said: I beg to move Amendment No. 100B and if I may, with the leave of the Committee, I will speak also to Nos. 106B and 123D. These three Amendments are all related to the same purpose, which is to make clear that the boards of governors of the 12 specialised postgraduate teaching hospitals in London which are listed in Schedule 2, and which, by Clause 15, the Secretary of State is empowered by order to preserve, are, if preserved, excluded from the provisions of Clauses 24 and 29 which deal with the transfer of trust property from abolished authorities. Since the boards of governors of these postgraduate teaching hospitals will, if they are preserved, continue in being after the appointed day and will remain responsible for the hospitals directly to the Secretary of State, it is intended that they will also continue to control their trust property just as they do at present. The Amendments involve no change of policy but make this intention clearer.
§ On Question, Amendment agreed to.
§ Clause 15, as amended, agreed to.
§ Schedule 2 agreed to.
§ Clauses 16 to 18 agreed to.
§ Clause 19 [Provisions supplementary to Section 18]:
§ 6.13 p.m.
LORD GARNSWORTHY moved Amendment No. 101A:
Page 23, line 37, at end insert ("and transferring").
§ The noble Lord said: I beg to move Amendment No. 101A, and I should like at the same time to speak to No. 101B, which is to leave out "by virtue of the preceding section" at line 38 on page 23 and insert "in pursuance of the provisions of this Act". Clause 18 deals with transfers of employment to new authorities and social service authorities. It provides for orders to be made to regularise and to regulate the transfers. 314 Clause 19 provides safeguards for the position of those transferred compulsorily on the appointed day. There will be others who have opted for transfer before the appointed day: applied for and secured posts in advance of the date of compulsory transfer. They will wish to have the same rights as those transferred on the appointed day and to retain, if they so wish, their former conditions of service.
§ May I detail a point by way of example? As I understand it, the newly revised National Health Service scheme for superannuation requires an extra three-quarters per cent. from officers—that is to say, 6¾ per cent. of salary, as compared with 6 per cent. in the new local government scheme. I believe that there are other differences relating to the reckoning of widows' pensions, among other matters. Clause 18—to which Clause 19 is supplementary—is couched in permissive wording, and does not appear to ensure beyond all doubt that orders will be made for all transferees. The purpose of the Amendments is to meet these points. I beg to move.
§ LORD ABERDARE
I am glad that the noble Lord has brought up this point of superannuation, which obviously is of great importance to staff, and is a matter that we fully recognise as being rightly of great importance to them, to their superannuation arrangements, and their pension prospects. However, these are not matters that will be dealt with under Clause 19. We have under consideration at the present moment the question of what options in respect of superannuation should be available to officers transferring to the new authorities, and we intend in due course to consult with staff interests, and then to make regulations to provide for this under Section 10 of the Superannuation Act 1972.
I shall perhaps go a little further than the noble Lord's clarification, because I am not sure that he referred to this, but so far as the protection of other terms and conditions of applicants for new posts is concerned it is surely generally accepted that those who freely apply for posts must be prepared to accept the terms and conditions of service attached to them. If those terms and conditions are not to their liking, they need not apply for, or accept, such posts. This would apply, of course, to staff who obtain 315 top posts with the shadow new authorities before April 1, 1974. In fact, they would know what posts they were applying for, and they would know the terms and conditions that apply to them. So far as the superannuation point is concerned, I hope I have been able to reassure the noble Lord that there will be consultation with staff interests, and that the regulations will be made under the Superannuation Act, 1972.
§ LORD GARNSWORTHY
I am most grateful to the noble Lord, Lord Aberdare, for what he has said. I hinted when I was speaking that I was going beyond the question of superannuation; I said that I was detailing that as an example of one of the worries, if I may put it that way, of those who feel themselves affected by this position. I welcome the assurance that there will be consultations with regard to superannuation. As to what the noble Lord has said about those who may be applying for "top posts", as he put it, I am sure that what he has said will be studied with the greatest interest. Until I have studied what the noble Lord has said with regard to the top posts, I do not know whether it will be necessary to come back to this matter at Report stage. My feeling at the moment is that what the noble Lord has said sets out the position clearly, and everybody should know where he is. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 6.20 p.m.
LORD GARNSWORTHY moved Amendment No. 102:
Page 23, line 40, leave out from ("body") to ("the") in line 2 on page 24.
§ The noble Lord said: I beg leave to move Amendment No. 102. At the same time I should like to speak to Amendment No. 103, which is to leave out lines 7 to 22 on page 24. It might save time if, when I have spoken to those two Amendments, I touch on Nos. 104, 105 and 106. Clause 19 provides for the making by the Secretary of State of orders for the protection of the interests of staff transferred to employment by the new authorities and the social service authorities. Though the wording of the clause is not identical, its general arrangement 316 corresponds to that of Section 255 of the Local Government Act 1972, which in its turn follows precedents established under the Local Government Act 1958 and the London Government Act 1963. The general purpose of Amendments Nos. 102 and 103 is to ensure that after transfer an officer shall be absolutely indemnified as to remuneration and other terms and conditions of employment, so that, irrespective of the nature of his employment after transfer, he shall be no worse off than he was immediately before the appointed day. As it reads, the clause falls far short of this standard, particularly with regard to the preservation of remuneration without diminution, though it is virtually certain that provision will be made for the payment of compensation to those made redundant or whose remuneration is reduced.
§ I am advised that, as drafted, the clause would work as follows. First, after transfer there is an initial stage where the officer continues to enjoy the scale of remuneration and, taken as a whole, the other terms and conditions of his employment which he enjoyed immediately before transfer. Put simply, the purpose of the Amendments is to preserve this initial stage. Secondly, stage one may be brought to an end by the service of a written notice specifying new terms and conditions of employment, subject to some reservation; and I shall touch on that in a moment. Of course, stage one might, in theory, continue indefinitely, in which case the officer would have nothing to complain about, but it is anticipated that in practice the majority of those transferred must expect to have their terms and conditions of employment varied. Thirdly, even after service of the written notice the officer might still find himself no worse off. This would be the case if the notice required him to be engaged in duties reasonably comparable to the duties in which he was engaged before transfer. In such a case, both the scale of remuneration and the other terms and conditions taken as a whole, would be preserved on a not less favourable basis.
§ Fourthly, if the notice did not require the person to be so engaged, he could find himself worse off. The scale of his remuneration could be varied downwards, though not his other terms and conditions taken as a whole. Fifthly, the 317 Amendments would delete all reference to comparability of duties and would preserve the scale of remuneration and other terms and conditions of employment on a personal basis, as I indicated earlier.
§ In support of this argument, I would refer to the "no detriment" arrangements negotiated by trade unions when reorganisation takes place on a departmental, as distinct from a national, basis, and to the arrangements made for the preservation on a personal basis of pension rights under obsolete schemes when new schemes are introduced. This is happening under the new local government pension schemes.
§ Very briefly, so far as Amendments Nos. 104, 105 and 106 are concerned, Clause 19 is supplementary to Clause 18, subsection (3) of which is concerned with the transfer of certain staff employed wholly or mainly on certain functions under the Public Health Acts and so on; that is to say, staff employed by public health authorities. These Amendments provide for questions about whether a person was employed wholly or mainly, and, if so, in what capacity, to be referred to an independent tribunal; that is to say, to the Industrial Arbitration Board. I beg to move.
§ 6.25 p.m.
§ LORD ABERDARE
The noble Lord, Lord Garnsworthy, and I are rehearsing again debates that we had on the Local Government Bill, both on Committee stage and on Report stage.
§ LORD GARNSWORTHY
I think I warned the noble Lord earlier that I hoped the Government would go a little further on this Bill than they went on the Local Government Bill.
§ LORD ABERDARE
I am sorry, but we take the view that we should stick to the same policy as we had on the Local Government Bill. Therefore I expect that this is one of those matters where, with the best will in the world, I shall not be able to satisfy the noble Lord, in so far as he wants to go one step further, as he did on the Local Government Bill. For that reason I shall not rehearse all the provisions that are made for transfer and for salary and conditions, because the noble Lord has been through them and, so far as I could follow, has very accurately explained the position, but I should just like to say—although I think he made some of 318 these points—that the vast majority of staff will continue to perform the same job at the same rate of pay and without any down-grading. But where they are unavoidably affected by the changes in organisation, employing authorities will realise that it is crucial that staff should be placed in posts where their abilities can best be used, both for the benefit of the Service and for the job satisfaction of the individuals concerned. If this line is followed, there should be relatively few cases in which the question of salary protection will arise.
Secondly, salary protection is not the only form of safeguard available. Provision will be made, as in the case of other statutory reorganisations, for compensation for those who lose their employment or whose salary is reduced as a result of reorganisation. It is not necessary to make the provision in this Bill, because the power already exists in Section 24 of the Superannuation Act 1972, and it is intended to use that power. There has already been extensive consultation with interested bodies in the National Health Service about the compensation terms. The principle that lies behind the proposals in the Bill is that a man should be paid the rate for the job which he is doing and that if his transfer to a new job involves a loss of earnings he should be compensated accordingly. The fact is that the two reorganisations—under the Local Government Act and under the present National Health Service Reorganisation Bill—are closely related and, in our view, there would be no grounds for having a different scale of statutory protection to apply as between staff affected by local government and by National Health Service reorganisation. So I am afraid that I must stand fast on the position I took up earlier on the Local Government Act.
The noble Lord also spoke to his Amendments Nos. 104 and 105. These would have the effect of limiting at this early stage the possible means of determining cases, where there was room for doubt as to whether a person was or was not employed in a particular capacity, or wholly or mainly for particular purposes. It is difficult to judge at this stage how many instances of difficulty may arise, but the Secretaries of State will wish to look to the Staff Commissions to consider how questions of this kind should be 319 determined; and, indeed, the consideration of such questions is one of the matters which the Secretary of State had particularly in mind in deciding to set up the Staff Commissions. We hope that many difficulties can be resolved informally. It might be possible, for example, to have an arrangement which was acceptable to staff interests whereby the simpler cases were brought before a single referee. Or it is possible that a formal procedure within the arrangements for determining trade disputes could be used. We should not wish to exclude any particular method, but we think it would be right to look to the Staff Commissions for advice on the methods of handling these particular issues.
The noble Lord also spoke, I think, to his Amendment No. 106. The effect of this, again, would be to remove one of the most important reasons for setting up the Staff Commissions. One of the most important functions of the Commissions is seen by us as resolving individual problems, including the consideration of representations or appeals from staff about the circumstances of transfer as it affects them. Specific provision is made in the National Health Service (Scotland) Act, in Section 36, for representations to be made to the Staff Commission by any person who objects to his transfer under the Act, and we think it reasonable that similar provision should be made for England and Wales in the present Bill. I know that I have not satisfied the noble Lord on his first Amendment, but I hope that I have gone some way to satisfy him on the others.
§ LORD GARNSWORTHY
I thank the noble Lord, Lord Aberdare, for the care he has taken in replying, and for the fullness of his reply. May I say that in fact I tried to avoid some of the arguments that I used when the Local Government Bill was before your Lordships' House? I think it is inevitable that this question will arise whenever transfers of the kind that we are now discussing occur, and I am certain that those who are engaged in the services so affected when reorganisation takes place on the scale and in the kind of way that reorganisation of the National Health Service is taking place, and reorganisation of local government took 320 place, will not be satisfied until the principle of no detriment is accepted. That applies regardless of whatever Government are in power. The position in which these people find themselves is not of their creation, not of their desire; and it is felt that, since they entered a career—and many of the people concerned have given long years of service—the security and prospects they had ought not to be disturbed, not merely with consequent anxiety but with consequent damage to their own individual positions.
With regard to Amendments Nos. 104 and 105, I noticed that the noble Lord said it was difficult to judge how many people would be affected. What he has had to say will be studied with very great care, and I thank him for it. I will discuss the matter with people in touch with those who are so affected, to see whether they are satisfied with what the noble Lord, Lord Aberdare, has said. With regard to Amendment No. 106, I realised the point with regard to the Staff Commission. I should have liked to speak at length about it, but your Lordships have many other issues to discuss this evening and we have already had a lone sitting. I shall content myself at this stage with saying just this: that the Staff Commissions are not everybody's darling. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 19 agreed to.
§ Clauses 20 to 23 agreed to.
§ Clause 24 [Transfer of trust property from abolished authorities]:
§ 6.34 p.m.
§ LORD ABERDARE moved Amendment No. 106A:
Page 27, line 26, at beginning insert—
("(1) Subject to the following subsection").
§ The noble Lord said: With your Lordships' permission I should like, in moving Amendment No. 106A, to speak also to Nos. 106C and 106D. The purpose of all three is the same. The provisions in Clause 29 to appoint Special Trustees to hold and administer the trust property formerly held by boards of governors and university hospital management committees recognise the special claims of teaching hospital interests in the management of endowments. As drafted, Clause 29(1) obliges the Secretary of State 321 to appoint Special Trustees for all the hospitals which are at present under the control of boards of governors and university hospital management committees. We have no wish, however, that these arrangements should be imposed on any such board or committee who do not wish for them and who prefer that the trust property now vested in them should on the appointed day be transferred to the appropriate Area Health Authorities (Teaching). One or two of these hospital authorities have already expressed such a preference, and the Amendments now proposed will enable this preference to be met. I beg to move Amendment No. 106A.
§ On Question, Amendment agreed to.
Page 27, line 27, after ("below") insert ("(excluding a preserved Board)").—(Lord Aberdare.)
§ On Question, Amendment agreed to.
§ Amendment moved—
Page 27, line 50, at end insert—
("(2) If after the passing of this Act and before 31st October 1973 a University Hospital Management Committee or Board of Governors requests the Secretary of State in writing to secure that property held immediately before the appointed day by the Committee or Board is not transferred to and vested in Special Trustees by virtue of the preceding subsection, he may by an order made before the appointed day provide that the property shall be treated for the purposes of that subsection as if it were held immediately before that day by a Hospital Management Committee which is not a University Hospital Management Committee.").—(Lord Aberdare.)
§ On Question, Amendment agreed to.
§ Clause 24, as amended, agreed to.
§ Clauses 25 to 28 agreed to.
§ Clause 29 [Special Trustees for a university or teaching hospital]:
Page 30, line 5, after ("Governors") insert ("(excluding any body on whose request an
order was made in pursuance of section 24(2) of this Act and any preserved Board)")—(Lord Aberdare.)
§ On Question, Amendment agreed to.
§ Clause 29, as amended, agreed to.
§ Clause 30 agreed to.
§ Clause 31 [Appointment and tenure of office]:
§ 6.39 p.m.
BARONESS WHITE moved Amendment No. 107:
Page 31, line 7, after ("a") insert ("separate")
§ The noble Baroness said: This is the first Amendment to Part III of the Bill, a very important sector of the Bill, dealing as it does with the Health Service Commissioners for England and for Wales. The object of this Amendment is once more to stress the fact that the administration of the Health Service in Wales is different from that in England, that the responsibilities of the Secretary of State for Wales are separate from those of the Secretary of State in England, and that there are certain (I think) significant variations in the pattern of the administration in Wales which in our view mean that it would be extremely desirable to have a separate person, and a recognisably separate person, as the Health Service Commissioner in the Principality. As your Lordships no doubt know, at the present time one gentleman has a multiple personality. He is the Parliamentary Commissioner for Administration for the United Kingdom; and he is also Health Service Commissioner for England, Scotland and for Wales. This may be intended—and we hope it is—only as a temporary measure, but the assurance we should like to have from the Government (and if we cannot have a categorical assurance then I would seek to press this Amendment) is that as soon as possible we shall have appointed a separate person to be responsible for the Health Service Commissioner's functions in Wales.
§ If I may remind the Committee, in Wales we shall have no Regional Health Authority. The functions carried out in England by the Regional Health Authority will in Wales be divided—I am not sure on what lines, but some indications have been given—between the Area 323 Health Authorities and the Welsh Office, the Secretary of State. This, I assume, means that whereas in England the Health Service Commissioner could be asked to investigate any complaint there might be against the Regional Health Authority, in Wales it would have to be in some circumstances the Parliamentary Commissioner for Administration; because I assume that the work of the Welsh Office would come under the Parliamentary Commissioner for Administration and not under the Health Service Commissioner although it was dealing with the Health Service.
§ I should also like to know from the Minister the position of the Welsh Health Technical Services Organisation, which is not a relevant body under the Act and, therefore, apparently is not subject to the Health Service Commissioner although it will be performing in Wales functions which in England are performed by the Regional Health Authority and which in England would be subject to investigation, if necessary, by the Health Service Commissioner. Of the position in Wales I am not quite clear. Would they, in Wales, be subject to the Parliamentary Commissioner for Administration?—which means that any complaint would have to go through a Member of Parliament. That makes a difference, in that respect among others, from similar complaints in England. There are differences between the two forms of administration, therefore; and it appears to me that there must be differences in the scope and functions of the two Health Service Commissioners. I am not presuming to speak for Scotland, but in Wales the position is different and I certainly feel strongly that for these reasons, if for no others, we should have a separate Health Service Commissioner.
§ I think there are also further reasons, more of a (one might say) quasi-political nature, in the sense that, as the noble Lord, Lord Aberdare, must be aware—although I must say he did not seem to be so on an earlier Amendment which he rejected—there are very strong feelings in Wales that if we have a Secretary of State of our own with the functions allotted to him, that should be carried through in other forms of administration. In any case, the object of an Ombudsman is to be a reassurance to the public that their interests are being fully safe 324 guarded and that they have a channel through which they may go if they are dissatisfied with the workings of Government—or, in this case, with the workings of the Health Service administration. The psychological relationship has some significance and importance in this situation.
§ From my knowledge of Wales—after all, I live there and was a Minister in the Welsh Office for a number of years—my firm conviction is that the Welsh people will not be satisfied unless they feel that they have a separate Health Service Commissioner who will be in charge of their affairs in so far as this procedure is concerned. I am aware that there may be arguments in favour of a combined administration in the sense that one wants to maintain similar standards in England and in Wales, and presumably in Scotland; but it appears to me that this can be perfectly well done at an administrative level without interfering with the sense of personal relationship with the Health Service Commissioner in Wales and for Wales. I do not believe that there would be any serious difficulty of a difference of standards in the performance of the duties of the Health Service Commissioner if proper administrative arrangements were made for consultation or perhaps from time to time for seconding staff from one area to another. All I am saying is that the differences in the administration are very genuine and significant, and in some respects I think of such significance that we are entitled on that ground alone to press for a separate Commissioner.
§ I am sorry that my noble friend Lord Watkins is prevented from being here to-day because he, with his very great knowledge of administration in Wales, would most strongly have supported this Amendment. I know that, because we had lengthy discussions about it. I know that he can speak with a most intimate knowledge of administration in Wales from experience extending over very many years in Parliament and in local government. We feel very strongly indeed that this is a case in which we wish to have categorical assurances from the Minister that the present position is a temporary one and that as soon as may be we shall have our own Health Service Commissioner appointed. I beg to move.325
§ 6.45 p.m.
§ LORD ABERDARE
As the noble Baroness said when she opened her few remarks, we are now coming to a Part of the Bill which is extremely important and which provides for the Health Services Commissioners for England and for Wales. Before we come to discuss this particular Amendment and before discussing some of the other Amendments on the Order Paper, I should like by way of introduction to make one point which I hope will be helpful and will perhaps save me from wearying the Committee by frequently repeated points of general application to all these Amendments.
I hope that the Committee will bear in mind that Parliament has already provided machinery for the independent investigation of complaints against Central Government through the Parliamentary Commissioner for Administration and against the N.H.S. in Scotland through the Health Service Commissioner for Scotland. This fact has important consequences when we are deciding what to do in the case of this particular Bill. I am sure that the Committee will agree that it is highly desirable that the Parliamentary Commissioner for Administration and the Health Service Commissioners for England, Wales and Scotland should apply the same standards of justice, and have substantially the same powers of investigation, in discharging their duties. The Commissioners will, of course, be dealing with different public bodies, but they are all public bodies, and it is the relationship of those bodies with their clients, if I may put it like that, which is and will be the subject of investigation. It was with these considerations in mind that the Government proposed that initially at least, the posts of Parliamentary Commissioner for Administration and Health Service Commissioner in England, Wales and Scotland should be held by the same person, Sir Alan Marre. We shall have, therefore, a situation in which the same person will be holding the four Commisioner posts, performing basically the same function in respect of the services concerned, and applying the same standards and methods to his investigations. Plainly it is important that he should be given powers to discharge his duties as Health Service Commissioner in England and in Wales as nearly as possible identical to those he already has 326 as Parliamentary Commissioner for Administration and Health Service Commissioner in Scotland. We cannot therefore consider this Part of the Bill on its own; it must be related to existing enactments. I hope that, with this in mind, the Committee will understand the Government's attachment to general principles which have already been established in existing legislation.
The Amendment which the noble Baroness has moved has as its immediate purpose to require that the Health Service Commissioner for Wales shall always be a separate person from the Commissioner for England or for Scotland. I should be the first to agree with the noble Baroness that there are many differences in conditions in Wales and that under the Bill there will be a different form of administration in Wales. But against that we have to balance the overwhelming importance of ensuring that the duties of the various offices of Health Service Commissioner are all discharged in the best, most effective and consistent way. Surely there must be the greatest possible consistency between the judgments which will be applied and the way in which discretion is exercised in England, in Wales and in Scotland. In these matters where injustice or hardship due to maladministration or failure of the service is in question it would be very undersirable that the issue should in any way be affected, or even be thought to be affected, by which part of Great Britain the person complaining lived in.
We have given this matter the most careful consideration and we are satisfied that the best way to ensure a good start is, in the first instance, to appoint Sir Alan Marre to the offices of Health Service Commissioner for England, Wales and Scotland, in addition to his present office. He has invaluable experience to bring to these new offices, and in our opinion he will be able to ensure that undesirable differences in practice do not emerge. I must, I think, call in aid for this decision the advice of the Select Committee on the Parliamentary Commission for Administration which strongly supported this proposal that initially one man should hold all these posts.
I must say that I thought that the noble Baroness, in saying, as an example of 327 the difference in Wales, that the complainant would have to go to the Parliamentary Commissioner for Administration whereas complaints against the Area Health Authority would go to the Health Service Commissioner, was arguing slightly against her own case. If there were this dichotomy it would surely be better that one man was the ultimate person in both cases, whether the complaint was against the Civil Service or the Health Service administration. The noble Baroness made the point that all services direct to patients will be carried out by the Area Health Authority and not by the Welsh Office, so I would hope that in this case the absence of the Regional Health Authority would not make any difference. The majority of patients with complaints would be directing them against the Area Health Authority and they would be heard by the Health Service Commissioner. If the complaint was against the Welsh Office it would be heard by the Parliamentary Commissioner for Administration. I suggest to the noble Baroness that there is an advantage in having the same person.
Regarding her point about the Welsh Health and Technical Service Organisation, this is a special health authority and is a relevant body, and therefore complaints could be made in the normal way. Having said that, may I say I am sure that Sir Alan Marre would be the first to keep closely in mind the question whether at any time it would be in the general interest for him to ask to be relieved of one or more of his proposed new offices so that a separate Health Service Commissioner might be appointed. In any case, under Clause 37(4), Parliament will be receiving annual reports of the performance of each office, and this will give Parliament an opportunity to keep this matter under review. I hope that that will help to persuade the noble Baroness that she need not press this Amendment.
§ BARONESS WHITE
I am afraid that it does not persuade me because we have not had the sort of assurance that I had been hoping for. The noble Lord, Lord Aberdare, kept using the word "initially". Had he said initially, and then added that after we have got the scheme running, gained a bit of experience and 328 set some standard, and reviewed procedures, and so on and so forth, we should certainly move on to having a separate Health Service Commissioner for Wales, one would not have questioned it because one would see sense in that. But from what the noble Lord has said it is to be left to Sir Alan Marre to decide whether we in Wales should have a separate Health Service Commissioner. Frankly, I do not think it is good enough. I do not believe that it is necessary to have one man for all these separate functions. On that basis, we should have only one judge in the Kingdom, in the interests of consistency, whereas plainly our system of justice has to be devolved. Admittedly from time to time there are certain anomalies in judgments which are given, but the various judges take cognisance of the decisions of their brethren and try to keep in line.
I repeat, I do not believe for a moment that what I propose is impossible. As I say, I think the Government's method is quite out of keeping with what the public is hoping for from the Health Service Commissioner. The concept of the Ombudsman which the Government have is different from that in the Scandinavian countries from which the word was taken, and I think the idea was taken, and where he is much more the patient's friend and adviser than an inquisitor who has to be kept aloof from everybody. I recognise that we cannot go into the full philosophy of the case, but I repeat that I do not think that someone who appears to be as remote as Sir Alan Marre (or whoever may be appointed) is bound to be, if he is carrying on this quadrupartite function, will bring real confidence to the people in the Principality.
My noble friend Lord Watkins and myself have had some quite strong representations about this point. Having myself been a Minister in the Welsh Office in charge of health affairs I do not feel that for anything longer than a relatively short initial period, to get the machine working, we should be satisfied without having our own Health Service Commissioner. In those circumstances, and as we have not had the kind of assurance that I had hoped for from the noble Lord, I cannot withdraw the Amendment.
§ LORD ABERDARE
Before the noble Baroness makes her final decision, I wish 329 to make two points. First, what she is saying means that there would be two separate people in Wales. There would be the Parliamentary Commissioner for Administration, at present Sir Alan Marre; and under her Amendment there would be another person who would be the Health Service Commissioner. I put it to her that in the initial phase this could lead to serious differences between the way in which complaints were handled and decisions taken between the two. I do not think that it would be at all desirable; and neither did the Select Committee on the Parliamentary Commission for Administration.
The other point I would make is that I think the noble Baroness was very wrong to say that I said that Sir Alan Marre would be left to make this deci-
§ Clause 31 agreed to.
§ Clause 32 agreed to.
§ Clause 33 [Administrative provision]:
BARONESS WHITE moved Amendment No. 108:
Page 32, line 34, at end insert ("but so that in Wales there shall be sufficient Welsh-speak
§ sion. Of course he could advise, but the point I made was that there would be an annual report to Parliament from each Health Commissioner, and this would give Parliament an opportunity to make its views known in the future.
§ BARONESS WHITE
With respect to the noble Lord, I think that when he reads Hansard tomorrow he will see that he did indicate that the initiative might well be with Sir Alan Marre. I think that the words he used could bear no other interpretation.
§ 7.0 p.m.
§ On Question, Whether the said Amendment (No. 107) shall be agreed to?
Their Lordships divided: Contents, 20: Not-Contents, 58.
ing staff to deal with complaints made in the Welsh language").
|Beaumont of Whitley, L.||Greenwood of Rossendale, L.||Serota, B.|
|Beswick, L.||Hale, L.||Shackleton, L.|
|Buckinghamshire, E.||Jacques, L.||Shepherd, L.|
|Davies of Leek, L.||Llewelyn-Davies of Hastoe, B. [Teller.]||Stocks, B.|
|Donaldson of Kingsbridge, L.||Stow Hill, L.|
|Gaitskell, B.||Nunburnholme, L.||Strabolgi, L. [Teller.]|
|Garnsworthy, L.||St. Davids, V.||White, B.|
|Aberdare, L.||Elles, B.||Milverton, L.|
|Abinger, L.||Elliot of Harwood, B.||Monck, V.|
|Amory, V.||Emmet of Amberley, B.||Mowbray and Stourton, L. [Teller.]|
|Auckland, L.||Ferrers, E.|
|Belstead, L.||Gowrie, E.||Newall, L.|
|Berkeley, B.||Grenfell, L.||Northchurch, B.|
|Bethell, L.||Grimston of Westbury, L.||Nugent of Guildford, L.|
|Brock, L.||Hayter, L.||Onslow, E.|
|Brooke of Cumnor, L.||Hemingford, L.||Platt, L.|
|Brooke of Ystradfellte, B.||Hylton-Foster, B.||Rankeillour, L.|
|Brougham and Vaux, L.||Ironside, L.||Rochdale, V.|
|Colville of Culross, V.||Jellicoe, E. (L. Privy Seal.)||St. Aldwyn, E.|
|Conesford, L.||Jessel, L.||Saint Oswald, L.|
|Cottesloe, L.||Kemsley, V.||Strange, L.|
|Craigavon, V.||Killearn, L.||Terrington, L.|
|Croft, L.||Limerick, E.||Vivian, L.|
|Daventry, V.||Lothian, M.||Wakefield of Kendal, L.|
|de Clifford, L.||Loudoun, C.||Wolverton, L.|
|Denham, L. [Teller.]||Lyell, L.||Young, B.|
|Drumalbyn, L.||Masham of Ilton, B.|
Resolved in the negative, and Amendment disagreed to accordingly.
§ The noble Baroness said: I beg to move Amendment No. 108 simply to get on the Record an assurance—which this time I feel I must have from the Minister, whether he wants to put it in the Bill or not—that if we are going to have Sir Alan Marre, at least he will have some Welsh-speaking staff to help him. Again, this is a sensitive matter in Wales, and even more so as the last Amendment 331 was not carried and we have no assurance about having our own separate Health Service Commissioner. At least we can be certain that he is aided by, as the Amendment proposes, sufficient Welsh-speaking staff to deal with any complaints that may be made in the Welsh language. I trust that on this at least we shall have an assurance. I beg to move.
§ LORD ABERDARE
I gladly give the noble Baroness that assurance. We fully accept the underlying premise that the people of Wales are entitled to expect that the Health Service Commissioner for Wales will have available a proper and sufficient capacity to enable him to deal with complaints made in the Welsh language. We have made clear our policy of supporting the Welsh language. It is not, strictly speaking, necessary to include anything to this effect in the Bill, since it would obviously be part of the ordinary duty of the Health Service Commissioner for Wales to ensure, as a matter of good administration, that complaints made in the Welsh language could be dealt with. I know that Sir Alan Marre fully recognises this aspect of his new responsibilities. I should like to be helpful to the noble Baroness if I can, if she will accept from me that I could not possibly agree that it would necessarily be appropriate to refer to the Welsh language in all enactments affecting Wales. At the same time, I recognise, as she does, that this is a very sensitive matter in a very sensitive area, and in these particular circumstances there could be virtue in the general sense of the Amendment which she has proposed.
I think I must say that technically her Amendment does not quite do. It refers to "staff to deal with complaints", whereas strictly the staff are there to assist the Commissioner to deal with complaints. If I might have words with the noble Baroness later and could suggest to her a rather more correct phraseology, she might feel able to put down an Amendment at Report stage which I should be able to accept, with the proviso that I should not necessarily wish to look upon it as a precedent for all future legislation.
§ BARONESS WHITE
Having had that rather more satisfactory assurance on this 332 occasion, yes, of course, I quite understand that the wording of the Amendment could be improved. I should be most happy to take advice on it. With that in mind, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 33 agreed to.
§ Clause 34 [Matters subject to investigation]:
§ 7.11 p.m.
§ LORD PLATT moved Amendment No. 109:
Page 34, line 7, at end insert—
("Provided that a Commissioner may conduct an investigation notwithstanding that the person aggrieved has or had such a right, if satisfied that in the particular circumstances it is not reasonable to expect him to resort or have resorted to it.").
§ The noble Lord said: I am speaking to this Amendment in the name of the noble Lord, Lord Brock, and myself. I should like, if I may, to take Amendments Nos. 109 and 110 together, because the one is dependent on the other. Before developing any argument, may I point out that the full stop printed in the second line of the Amendment should obviously be a comma. Your Lordships will notice that it is followed by a small letter.
§ Following that preliminary, may I say that I look on this Amendment as rather a technical one? I should also like to call the attention of your Lordships to Clause 34(4) which says, if I may make a sort of précis of it, that the Commissioner shall not conduct an investigation into matters in respect of which an aggrieved person has a right of appeal before a tribunal or a remedy by way of proceedings in a court of law. I should like your Lordships to note that in the first place it is "a right" and in the second place it is "a remedy". There follows a proviso that a Commissioner may conduct an investigation if he thinks it is reasonable that the person has not resorted to this right or remedy.
§ What we are suggesting is that that proviso should come in after paragraph (a); in other words, the Commissioner should be enabled to investigate a case where a person has the right of appeal before a tribunal, but should not be allowed to conduct an investigation 333 where the person or patient has a remedy by means of proceedings in any court of law. The reason for this is that the case would presumably be sub judice and without the change here proposed there would be some other person—namely, the Commissioner—investigating a case which was in fact before a court of law. The words in the Amendment represent precisely the same proviso as that given at the end of subsection (4), with the exception that it says "a right" instead of "a right or remedy"—because we are putting it in after paragraph (a) which deals only with a right of appeal, so the question of a remedy by means of proceedings in a court of law does not come into it. Why one is a right and the other a remedy is beyond the understanding of any ordinary person like myself; but that is the way it is written. Therefore that is the way in which it must be altered if, by chance, the Committee agree to accept this Amendment.
§ May I just reiterate—because it is a rather technical and difficult Amendment—that what we are aiming at is to ensure that a Commissioner should by all means be able to investigate a complaint if he felt that the person, though he might have had the right of appeal to a tribunal, was reasonable in not resorting to that right. But we do not think that the Commissioner should be allowed to investigate a case that was already in the hands of the law. I hope that I have made this fairly clear. I am really only asking for clarification, in order to ascertain the view of the Minister.
§ LORD ABERDARE
The two Amendments to which the noble Lord has just spoken both seek to achieve the objective which he has explained most clearly. They would remove the Health Service Commissioner's discretion to investigate actions which could be taken to court—not necessarily those which were already in court, because he would certainly not investigate those. Of course it is not intended that the Health Service Commissioner should investigate complaints which would normally and appropriately be taken to court; for example, those in which the person complaining alleges that he has suffered considerable pecuniary loss as a result of some action by a health authority. However, a very wide range of actions might in principle form 334 the occasion for litigation, and though in practice it is only the more serious case in which the patient takes action against a hospital or doctor, because of the expense involved and the uncertainty of the result, quite trivial matters could form the basis of legal action if the patient were so minded—for example, alleged inconvenience or delay. It is very difficult to draw a line between those actions in respect of which an aggrieved person may have the remedy of proceedings in a court of law and those in respect of which he has not, and if the Health Service Commissioners are to play their part effectively we feel that they must have discretion to decide which cases may be taken to law and which cases they can reasonably investigate themselves. There is a similar provision in Section 5(2) of the Parliamentary Commissioner Act 1967, which in practice has worked very well. I would therefore suggest to the noble Lord, Lord Platt, that this gives the Commissioner the necessary freedom to make decisions himself where there are these very marginal cases.
§ LORD PLATT
If my noble friend agrees, with that explanation given by the Minister, I am prepared to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 7.20 p.m.
BARONESS WHITE moved Amendment No. 111:
Page 34, line 18, leave out from ("Act") to end of line 22.
§ The noble Baroness said: The purpose of this Amendment is to make it possible for the Health Service Commissioner to take cognisance of actions taken in connection with the general medical service, the general dental service, the general ophthalmic service and the general pharmaceutical service which, under the Bill as it stands in this clause and in Schedule 3, are removed altogether from his jurisdiction. We feel that if we are to have a Health Service Commissioner who is to be effective he ought not to be absolutely precluded from taking notice of investigations in this sector.
§ We are quite well aware that in the present situation, which we assume would be continued under the reorganised Health Service, there is a well established 335 procedure for dealing with complaints in this area; there are service committees at which the complainant can bring forward his case. If he is not satisfied, he has then a right of appeal to the Secretary of State. But although in many instances this procedure works perfectly satisfactorily, there are, nevertheless, some difficulties. A particular difficulty which worries many of us is that if the initial complaint is not dealt with to the satisfaction of the patient and he has to go on appeal to the Secretary of State, he is then liable for costs if he loses his appeal. These costs can be quite considerable because, naturally enough, the doctor, dentist, or other professional person concerned, is likely to be represented by counsel, and it may be a very expensive matter indeed.
§ I have received a number of representations from people connected with these matters who say that while they have no doubt that the appeal, if it is asked for, will be well conducted, the element of cost in it is a considerable deterrent to people who may have perfectly legitimate grounds for not being satisfied with the investigation carried out by the service committee. The service committee meets in private, and although I have no doubt that in most cases the correct procedures are followed, there is evidence in some instances that they are not; the clerk does not advise the complainant adequately of his or her rights. I know of some instances where the rules of procedure have not been adhered to and, as a result, the complainant may well feel that he has a grievance. It seems to us that while hitherto the procedure of appealing to the Secretary of State was the only one open, now, when we are having a new arrangement for dealing with these matters, there should be a possibility, at any rate, of the Health Service Commissioner being asked to investigate. It is a great pity that we do not have the report of the Davies Committee, and a great pity that the terms of reference of the Davies Committee are confined to the Hospital Service and do not have within their terms of reference the way in which complaints are dealt with in this particular sector of the Health Service. We should have welcomed their advice on this. However, it is not forthcoming; it cannot be on this 336 particular sector. Indeed, it will not be forthcoming in time for this Bill, which I find extremely regrettable.
§ There is a strong argument that this particular sector of the Health Service, which is extremely important to the ordinary person, should not be entirely outside the scope of the Ombudsman. It is a very difficult matter for someone to carry through an appeal to the Secretary of State, knowing that the costs might be awarded against him. It means that somebody would have to be both of considerable means and persistence to do so, and there may well be a number of instances—and I am advised that there are certainly some—where the procedure carried out at what we might call the court of first instance has not been necessarily very satisfactory, and where we feel that there should be an appeal to the Health Service Commissioner which would not involve the person concerned in the kind of expense that would otherwise fall upon him.
§ If a person is seeking damages, compensation or anything of that kind, that is quite another matter. If he wants to get some monetary compensation for whatever his grievance may be, then a court of law, or an appeal to the Minister with costs awarded if the case goes against him, seems fair enough. But if all he is seeking is a remedy which may not be entirely in his own interests, but more for other people in order that the same thing may not happen again, then I do not think that the present situation is satisfactory. It is for exactly this kind of reason that we have always supposed that the Health Service Commissioner has been established. Therefore, to leave outside his cognisance altogether the whole of the family practitioner services seems to be restricting him in a way which I do not think the public ever imagined was to be the case, and which I feel very strongly ought to be examined very carefully indeed before we leave this Part of the Bill. I beg to move.
§ LORD BROCK
The difficulty about this Amendment is that it has been indicated that the doctors will not have imposed upon them the additional mechanism of an action before the Ombudsman. As has been said, it is already in the 1946 Act that the patient can get a remedy if he is aggrieved by an adminis- 337 trative or clerical failure. There is a disciplinary mechanism by which he can complain to the service committee and, on appeal, to a tribunal. This Amendment means that he will now be threatened by the Health Service Commissioner as well, and this is unacceptable.
§ 7.28 p.m.
§ LORD ABERDARE
The position is, as the noble Baroness, Lady White, understands it to be, and as the noble Lord, Lord Brock, has also said, that there is already a well-established statutory procedure, which will continue substantially unaltered after the Bill is passed, for investigating complaints against these practitioners under the National Health Service (Service Committees and Tribunal) Regulations. These Regulations, as the noble Baroness has said, include the right of appeal to the Secretary of State. There is one point on the cost of appeal which has been mentioned. The Regulations provide for executive councils to contribute to the cost of appeals incurred by complaints, and also the Secretary of State may direct executive councils to make such contributions. These Regulations apply whether or not the appeal is successful. There is some way here in which some contribution could be made to unduly high costs.
It is an important principle of the Bill that the Health Service Commissions' functions should not overlap those of statutory tribunals or the courts, and for this reason they would normally be precluded from investigating complaints which could properly be taken to a statutory tribunal or court. Similar provisions are to be found in Section 5 of the Parliamentary Commissioner Act, and Section 45 of the Scottish Act.
Secondly, it would be inconsistent with the status of general practitioners, as independent contractors, for their actions to be subject to investigation by the Health Service Commissioners. As the noble Lord, Lord Brock, has told us, the members of the professions concerned feel very strongly on this point. After all, they have contracts: they have contracts with executive councils, and in future they will have contracts with family practitioner committees. Under these contracts they are obliged to undertake certain duties, and failure to fulfil these obligations renders them liable to investigation under the Serevice Committees 338 and Tribunal Regulations. These practitioners are not direct agents; they are not employees of health authorities, and certainly any extention of the Health Service Commission's powers to them would be strongly resented by the professions, whose members, as I have said, have their clear contract, and this would be going beyond that clear contract.
I am advised legally that, strictly speaking, the words in the Bill are not necessary; that the specific exclusion of these practitioners in the Bill is not necessary since as independent contractors they are not part of a service provided by a relevant body, nor do they take action by or on behalf of a relevant body. The words which the noble Baroness's Amendment seeks to remove were included in the clause because the medical profession had on several occasions expressed anxiety about the position of general practitioners and it was thought desirable to make the position clear beyond any shadow of doubt. So not only is the noble Baroness's Amendment not fully effective in the way she would want it to be, but there are very strong reasons why we should not go any further than the Bill does in the powers of the Health Service Commissioner. In these circumstances I hope that noble Baroness will feel able to withdraw the Amendment.
§ BARONESS LLEWELYN-DAVIES OF HASTOE
May I say just one sentence on this Amendment? With great respect I felt a deep sense of regret that the noble Lord should have referred to the Health Commissioner in terms of being a threat to the medical profession. I feel that this should never be the case. I rather regret also that the Minister spoke so completely to what we know to be the medical brief on this subject, and I very much hope he does not share the view that the Health Commissioner is a threat. After all, the general practitioners and the dentists are the people who deal with 90 per cent. of all illnesses that occur, and these are the people for whom the Health Commissioner should be a help, and not regarded as a threat. One hopes very much that the Minister and his Ministry do not share that particular view.
§ 7.33 p.m.
§ BARONESS WHITE
I would emphasise what my noble friend has said. I thought it was most regrettable that the noble 339 Lord, Lord Brock, should use the terms which he did, because that is an attitude of mind which I think the public frankly resents. He said that any such procedure as was indicated in our Amendment should not be "imposed" upon the medical profession; that they should not be "threatened" by the Health Service Commissioner. But, after all, the medical profession is there to serve patients; it is not there as an end in itself. It is this attitude of the medical profession, that it is an end in itself and is not there to serve patients—an attitude which I am sure is not shared by the vast majority of the medical profession but it was often indicated by their official spokesmen—that leads to the distrust of the medical profession by the public.
The feeling that one comes across not infrequently (as we may discuss on further Amendments to this clause of the Bill), is that, as they put it, the doctors all gang up together, they defend one another, and if anything should go wrong, well, the patient will be lucky if he is able to obtain adequate redress. I know this may seem very unfair to people who are, as I say, for the most part extremely dedicated people—dedicated to the profession and to the well-being of their patients—but it is unfortunate that the language so often used by the official spokesmen of the medical profession would lead one to think otherwise. It was precisely an instance of this—the choice of words by the noble Lord, Lord Brock, of "imposing" something intended to safeguard patients and "threatening" with the Health Service Commissioner, who is to be a help to all of us in maintaining and improving standards in the Health Service—which makes one very sad. Something which upset me when I listened to some of the discussions that went on in the earlier days when my right honourable friend Mr. Crossman was having consultations on the proposed reorganisation of the Health Service was this defensive attitude of some representatives of the medical profession.
I appreciate the points put by the Minister, but I would ask him to recognise that the people we have consulted are those who have had considerable 340 experience in studying the way in which the existing procedure works. Although he is quite right in saying that the Secretary of State on this question of the costs of appeal may direct that costs should be met, there is this tremendous element of uncertainty. One does not know where one stands, and if one does not have substantial private means it is a very great risk to have to take. It is for this reason, that we are not satisfied that justice is invariably done and seen to be done, that we put down this Amendment. It is not a perfect system at the present time and it would be quite wrong for us to pretend that in all cases it was carried through satisfactorily at the service committee, which is the court of first instance. Because of the financial risks involved, people who may have a very good case have to let it go by default as they feel that they cannot take the risk of the expense. They do not know whether or not the Secretary of State will direct that their costs should be met or that the executive committee, as the case may be, should contribute to the costs. I do not feel that this is an issue on which one would wish to vote; therefore I shall ask leave to withdraw the Amendment. But I do so having, I hope, indicated that we are by no means happy with the present situation and that we should have regarded an extension of the powers of the Health Service Commissioner in this respect as very desirable. It is something which would have been warmly welcomed by the public.
From what the Minister has said, the legal position is that the doctors are individual contractors and are not part of a relevant body, which means that presumably anything a doctor does in any respect in the Health Service is not going to be covered by the Health Service Commissioner; for this would not be just matters of clinical judgment but the entire activities, presumably, of medical men, dentists and the like. In other words, the Health Service Commissioner is going to be, as some of us rather feared at the time when his appointment was announced, far less effective a safeguard than I think the general public was led to believe when the announcement was made. He is going to be circumscribed in so many directions that his actual effective power, I am afraid, is going to be a great deal less, disappointingly less, 341 compared with what most people when they heard this idea would have supposed. But in all the circumstances it seems to me I have no option but to ask leave to withdraw the Amendment.
§ LORD BROCK
I regret that such a sinister interpretation has been put upon the words I used. I should like to say that the object was to avoid the Health Commissioner having any influence on the clinical judgment of the doctor and therefore adversely affecting the way the patient reacts to this. The possibility of a doctor having to look over his shoulder should not be allowed to distract him from making a difficult clinical decision. That is really the essence of the point.
§ Amendment, by leave, withdrawn.
§ 7.40 p.m.
§ BARONESS WHITE
Amendment No. 112 is purely a probing Amendment because we wish to know whether the Government have any particular intention to exclude actions described in paragraphs (3) and (4) or whether this is put in simply as a safeguard. I beg to move.
Page 34, leave out subsection (6)—(Baroness White.)
§ LORD DAVIES OF LEEK
I should like to follow that up briefly, because this is one of the most important Parts of the Bill. Clauses 31 to 35 enable patients who feel that they have a grievance to air their complaints against the National Health Service. What I find difficult to understand is this. Many of us will have received the Circular, Employment Medical Advisory Service Act 1972, and a small guide to this Act has, quite rightly, been sent to thousands of people by the Government in their enthusiasm for the new Employment Medical Advisory Service. It says that it is a new service established by the Department of Employment on February 1, 1973, under the Employment Medical Advisory Service Act 1972, to study and to give advice about all medical problems related to people's work. We have not yet got an industrial health service but we are moving that way.
It is well known to the well-informed Minister answering on behalf of the Government that this can overlap and be established in local government, and it can also be established in various 342 nationalised industries. I hope that the Minister of Employment will have some possibility of complaint there, and I can think of nationalised industries and the National Health Service and local hospitals that can have complaints. If there is careless use of radioactive isotopes by qualified people, nurses and others, who are remiss in the disposal of those radioactive isotopes and throw them away down sinks and other parts of the sewage system, those of us who worked years ago on radioactive waste substances know that quite a number of problems can arise in connection with the effluent which could be the subject of a complaint by the national authority against hospital servants or doctors or nurses. I believe action could be taken under the Employment Medical Advisory Service Act; under this Bill it seems that it could not. Clause 35 is loaded with negatives. It is abstruse; quite frankly it is not crystal clear.
I do not want to press this point because I do not know what my noble friends on the Front Bench intend to do, and I do not want to do any filibustering, but I think this matter is worthy of deeper thought now because of the establishment of what I honestly consider to be quite an excellent thing—the Employment Medical Advisory Service Act which applies in industrial and other activities, nationalised industries and local authorities. I think that view was worthy of being voiced and I hope it will not have wasted your Lordships' time.
§ LORD ABERDARE
We always like to hear the noble Lord's voice in this Chamber. Of course, the primary reason for the existence of the Health Service Commissioners is to safeguard members of the public against failures in service or maladministration in the new National Health Service. Therefore it does not cover the Employment Medical Advisory Service. However, the noble Lord has certainly raised an interesting point and I will look at it in more detail to see whether there is some help I could give him on the question of the Employment Medical Advisory Service.
§ LORD ABERDARE
So far as Amendment No. 112 is concerned, I thought it might well be a probing Amendment, but 343 perhaps I can try briefly to explain the position. There are five types of action listed in Schedule 3 which the Health Service Commissioners may not investigate: first, those arising from clinical judgments (which meets the point raised by the noble Lord, Lord Brock); secondly, actions by executive councils, which after 1974 will be known as family practitioners committees under the Service Committee and Tribunal Regulations which we were discussing on a previous Amendment; thirdly, National Health Service staff and personnel matters, such as appointments, pay, discipline and so on; fourthly, contractual or commercial transactions other than those relating to the provision of services under contract and, fifthly, actions which have been, or are, the subject of an inquiry set up by the Secretary of State under Section 70 of the 1946 Act. There are only two of these five categories where the ban on investigation may be removed from the Schedule by Order in Council. Those are the third and fourth categories that I mentioned, namely, the personnel matters and the contractual and commercial transactions. To change any of the others would require an amendment by another Act of Parliament. This is a similar provision to that in the Scottish Act.
The distinction is there simply to reflect the relative importance of these exclusions in the context of the Bill. It is fundamental to our proposals that Health Service Commissioners should not be able to investigate complaints about clinical judgment, actions of statutory tribunals or those which are subject to other statutory processes. To change these provisions would require a further Act of Parliament; but the same considerations do not apply to personnel or contractual matters, and the scope of the remit of the Health Service Commissioners could be widened to include these without altering the basic character of the proposals. Therefore these are left to be altered, if it should appear to be desirable at a later date, by Order in Council. I hope that makes the matter clear to the noble Baroness.
§ BARONESS WHITE
I am greatly obliged to the Minister and I think it is useful to have this on the Record, because 344 we were not quite certain what the Government had in mind. Having had that helpful explanation, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 34 agreed to.
§ Clause 35 [Provisions relating to complaints]:
BARONESS LLEWELYN DAVIES OF HASTOE moved Amendment No. 113:
Page 34, line 35, leave out paragraph (a).
§ The noble Baroness said: I beg to move this Amendment on behalf of my noble friends. There cannot be any doubt that the country in general and, I believe, the Committee have a very real wish that the Health Commissioner's function should be both effective and realistic. We are all aware of the great necessity for keeping merely frivolous or cantankerous or even neurotic complaints away so that his time and his resources should not be wasted. We know that the principle has been established that people and organised bodies can present complaints on behalf of the patient to the Health Commissioner. In moving this Amendment our whole concern is to make quite sure that the functioning of the Health Commissioner's office is to investigate responsible complaints. Therefore it seems extremely unreasonable to deprive such responsible bodies as the local authorities and the nationalised industries—or even parts of the nationalised industries—of the right to present cases which are known to them and about which they are informed, to the Health Commissioner himself.
§ I noted in the White Paper that the local authorities were precluded from doing this in the interim period, which seemed more reasonable; but I really cannot see a reason why the local authorities should be deprived in this way. After all, three or four members of any local authority can take up a case on behalf of a patient; therefore why should not the authority itself, with all its experts, with its knowledge and with its skilled advisers, which could present the case in such a way as probably to save the time of the Commissioner? When one comes to the nationalised industries one has only to think of, for example, the steel and mining industries to know 345 that they are not only highly dangerous occupations but particularly liable to cause occupational disease, about which they have very great experience. We remember the long fight of the miners to establish pneumoconiosis and similar complaints as occupational diseases.
§ It is possible to foresee a situation in which an individual miner, perhaps not very articulate in presenting his case, could put his case to the Commissioner and not get very far. In the meantime, the National Coal Board or some area board might have sent three or four patients and found for them adequate ground for complaint. Why cannot they present a reasoned case to the Health Commissioner like any other industry or employer? The nationalised industries form a very large part of the industry of this country. They cover an enormous section of the working population and there will be many small parts of their industries which will find themselves in exactly the same position as the big national boards.
§ It is possible to envisage a situation in which a factory run by a private industry will appeal on behalf of its employees to the Health Commissioner whereas a similar factory which happens to be in a nationalised industry will not be able to do so, with the result that its employees will be at great disadvantage. This does not seem to be reasonable, and noble Lords will, I am sure, require a clear explanation from the Minister before they can be satisfied about so major an exclusion from the whole concept of the work of the Health Commissioner. I should have thought that it is exactly these experienced, responsible bodies which will be able to save time and be in a position to present these cases well and which are precisely the kind of people who ought to be allowed to present such cases. I beg to move.
§ LORD ABERDARE
I listened with interest to what the noble Baroness, Lady Llewelyn-Davies of Hastoe, said in moving the Amendment, and she certainly put her case very persuasively. I had taken the effect of her Amendment to be that it would permit a local authority, nationalised industry or other public authority covered by Clause 35(1)(a) to make a complaint to the Health Service Commissioner on its own behalf. I think 346 this would be undesirable because the exclusion of these authorities from the bodies which can make complaints prevents a public authority from lodging a complaint with the Health Service Commissioner against the action of a Health Authority. As the Health Service Commissioner's function is basically to protect individual patients, it is not appropriate that he should be asked to arbitrate in disputes between public authorities.
However, as the noble Baroness moved her Amendment I rather understood that this was not in fact what she had in mind—that she was talking about the cases of individual complainants and was saying that other people could not put complaints on their behalf. As I understand it, a patient's friend or any other individual can put a complaint on his or her behalf to the Health Service Commissioner. I should have thought that the Bill was perfectly reasonable and that where a public authority like a local authority was concerned and had complaints against a Health Service Authority, it had perfectly good means at its own disposal to lodge them.
As I have been slightly unprepared for what it seems the noble Baroness has in mind, I would be grateful if she would allow me to look at the matter again, after which perhaps I might write to her or otherwise get in touch with her on the subject, because I think she was touching on the point of trying to help an individual complainant, that help coming from a public authority.
§ LORD ABERDARE
I should like time to go into that point and I will write to the noble Baroness about it.
§ LORD BROCK
I feel a little less concerned about the criticisms that were levelled at me somewhat earlier. If I interpreted the opening remarks of my noble friend Lady Llewelyn-Davies of Hastoe correctly, she seemed to accept that the attentions of the Health Service Commissioner might be at peril as a result of frivolous and irresponsible complaints.
§ BARONESS LLEWELYN-DAVIES OF HASTOE
I am grateful to the Minister for his reply and in a way I feel rather hopeful in that he seemed to be more 347 approving of what I actually meant than of what he thought I meant. It is clear from the opening words of Clause 35 that:A complaint … may be made by any individual, or by any body of persons whether incorporated or not, not being … a local authority or … nationalised industry …This must mean that a private industry is a body of persons which can present complaints whereas nationalised industries or local authorities cannot present complaints. The position is by no means clear. I am not sure that I would wish to seek leave to withdraw the Amendment simply on the Minister's assurance that he will write to me on the subject. We may require to return to this matter on Report. I think my meaning is clear, while the Bill is certainly not as clear as it should be.
§ LORD STOW HILL
May I say a word in support of the case presented by my noble friend Lady Llewelyn-Davies of Hastoe. If one asks about what one can complain, one has to look at Clause 34(3) where one sees that one can complain only about certain limited categories of happening—namely, those set out in subsection (3)(a):an alleged failure in a service provided by a relevant body …As my noble friend pointed out, a public limited company can assert that there has been a failure of a service provided by a relevant body. Alternatively, it may wish to assert a happening such as is described in paragraph (c). There is nothing to stop it from doing that. Indeed, Clause 35 allows it to do so. Imperial Chemical Industries, being a body of persons, can point to such a breakdown of a service. From my reading of these two clauses there is nothing to stop I.C.I. from making a complaint. If that reading of these clauses is correct, may I, following what my noble friend said, ask why in principle there should be any distinction between I.C.I. wishing to raise such a matter and a local authority or nationalised industry wishing to raise such a matter? If British Petroleum, in which the British Government have 51 per cent. of the shares, wishes to make such a complaint, it can do so. What in principle is the logical distinction between a local authority or nationalised industry on the one hand, and B.P. or I.C.I. wishing to raise precisely the same point on the other?
348 I venture to intervene because anxiety has been expressed from my Front Bench, and I wish to support what has been said about the possible limitation of the powers which are being vested in the Commissioner. One should not go further than the logic of the situation requires. No doubt the Commissioner can be expected to exercise his jurisdicton with prudence and caution and not in an oppressive way. If he is to be a person whose intervention is to support the individual and improve the Health Service, then in my submission there should be no distinction between the various types of body I have mentioned.
§ 8.0 p.m.
§ LORD ABERDARE
We are getting into rather difficult waters. I am not quite clear about this myself at the moment, I must confess, because as I say I had assumed that the Amendment of the noble Baroness referred to something rather different, which was a body excluded from making complaints being allowed to make complaints on its own behalf whereas she has been directing our attention to a body making complaints on behalf of an individual. The Health Service Commissioner is there to look into individual complaints. If I may I should like to look at it again and write to her—but of course if I cannot satisfy her perhaps we can return to it at Report stage.
There is one other point I could make perhaps to the noble and learned Lord, Lord Stow Hill; that is, that whoever makes a complaint has to be able to demonstrate that he has suffered injustice or hardship as a result of the failure of a National Health Service service. I am not quite sure—for example, he mentioned I.C.I. could demonstrate that.
§ LORD STOW HILL
I do not want to interrupt the noble Lord, but if one looks at the lines which follow line 40 on page 33 I do not really think that it has that effect. You can make a complaint if you can show that somebody has been injured because of a breakdown of service.
§ LORD ABERDARE
If somebody has been injured, yes, the individual has a right of complaint. What I am wishing to go into a little further is whether I.C.I. may put in a complaint on behalf of that individual. This is what I should like 349 to be allowed a little time to go into in order to try to reassure the House.
§ LORD DAVIES OF LEEK
I am grateful for the Minister's reply, and the Committee is grateful that he has said that he will have a look at it. This illustrates what I have been driving at about this new service under the Employment Medical Advisory Service Act which becomes operative on February 1, 1973. It is the Service concerned with factory work—in fact with any sort of work. It co-operates with Her Majesty's Factory Inspectorate. How does it contribute to the health of the people who work? By studying medical problems, employers, unions and workers; by working with Her Majesty's Factory Inspectorate; by working with general practitioners; by working with the young, with rehabilitation units and young people starting work. Young people often start work in dangerous occupations. In this modern society there are new substances in plastic and some of them can actually be used in local authorities—in a bookbinding department, or even in the Library Service, where there are detergents and other things that can create all kinds of dermatological problems.
Some protection is needed and I want to make sure that a well-informed local health officer, seeing this happening to a young man coming into the service of the local authority, seeing him suffering from a dermatological complaint because of some neglect, ought to be able at least to guide that man as to the way he should apply to the Commissioner and not leave him adrift. Therefore, I believe it is worth while looking at this in greater depth and I am grateful that the Minister has said that he will do so.
§ LORD STOW HILL
I had not finished answering the question put to me. I.C.I. have twenty employees who have perhaps become ill owing to some industrial process; they seek medical attention at a local hospital; they do not get it; they suffer injustice or hardship; I.C I. make a complaint on behalf of those twenty people and they say that those twenty people have suffered injustice or hardship by reason of a failure of a service provided by a relevant body. I.C.I., as I read those words, are perfectly entitled to do that. If I.C.I. are perfectly 350 entitled to do it, why should that not apply in similar circumstances to a local authority or nationalised industry?
§ LORD ABERDARE
I hate arguing on legal affairs with the noble and learned Lord, but I should like to refer him—as we are referring to bits and pieces of this Bill—to Clause 35 subsection (2). That says:Where the person by whom a complaint might have been made under the preceding 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 and as provided by subsection (5) of this section a complaint shall not be entertained under this Part of this Act unless made by the person aggrieved himself.That leads me to think that the person who has suffered the injury or has the complaint must himself, in normal circumstances, make the complaint; but if he is unable to act for himself he can call upon his personal representative or a member of his family or other individual suitable to represent him, and I suggest to the noble and learned Lord—with my modest legal knowledge—that that would exclude I.C.I. But I repeat that I should like to go into this further if I may be allowed a little time.
§ BARONESS LLEWELYN-DAVIES OF HASTOE
In view of the very helpful attitude of the noble Lord, I shall withdraw the Amendment, but I hope that in so doing the Committee will in the end discover what a body of persons who can represent people really means.
§ Amendment, by leave, withdrawn.
§ THE DEPUTY CHAIRMAN OF COMMITTEES (BARONESS EMMET OF AMBERLEY)
The question is that Clause 35 stand part of the Bill.
§ BARONESS WHITE
Before we pass this clause I should like to ask the Minister about Clause 35(1)(b). We did not put down an Amendment on this, but supposing for the sake of argument that the community health councils were to obtain their money wholly or mainly by money provided by Parliament, would this preclude their taking any part in the complaint procedure? We do not yet know what the Davies Committee is going to recommend. One understands from certain sources that they are very much 351 concerned about the possible role of the community health councils as part of what might be called the "external" complaints procedure as opposed to the hierarchical complaints procedure within the Hospital Service. If it should be that the community health councils might be brought in in some way, and that they might also be paid wholly or mainly by money provided by Parliament, are we quite sure what we are doing? I should like to have some clarification of this point because it seems to me that we might be in danger here.
§ THE DEPUTY CHAIRMAN OF COMMITTEES
I am sorry; that is my fault entirely. I asked that Clause 35 stand part before I put Amendment No. 114.
§ BARONESS WHITE
I should have been quicker off the mark, but I knew that this was the point I had to raise on Clause 35 stand part.
§ 8.9 p.m.
BARONESS WHITE moved Amendment No. 114:
Page 35, line 19, after ("and") insert ("unless in the opinion of the Commissioner there are circumstances present which render it desirable that he should investigate the complaint").
§ The noble Baroness said: I beg to move Amendment No. 114, and perhaps we might discuss with it No. 114A. which is a narrower version of the same thought. Amendment No. 114A is in our view a very important Amendment, and this is the one I wish to emphasise. Nevertheless, we are not happy that under Clause 35(4) the Commissioner may not investigate a complaint unless it has been brought to the notice of the relevant body in question and that body has been afforded a reasonable opportunity to investigate and reply to the complaint. In all the other subsections of these clauses concerning the activities of the Health Service Commissioner there is a proviso that if, in his judgment, there is good 352 reason for doing something which otherwise he would not be supposed to do he may use his discretion. For example, he may take a complaint which is out of time, or may himself take a complaint which could have gone to a tribunal but which he believes for good reason was not taken to a tribunal. In this subsection (4) there is no such let-out; he is not permitted any discretion of any kind. He has to allow the complaint to go through all its processes and has no opportunity in any circumstances, as we understand it, to say, "I believe that in this particular instance I myself ought to investigate forthwith."
§ In the great majority of cases, of course, we agree that the normal processes of investigation and so on should be carried out. What we are thinking of is the exceptional case—which is sometimes the very serious case. The Commissioner may for example have reason to suppose that in a certain hospital conditions are unsatisfactory, and he may have apprehensions that if there is not an early investigation what is politely called "erosion" of evidence will take place. This is not unknown. Therefore, we feel that the Commissioner, as our first Amendment suggests, ought to have an ultimate discretion as to whether or not he goes right in as soon as he receives a complaint. One could surely rely upon the Commissioner to use that discretion wisely and one could be satisfied that the occasions on which he would feel it necessary to do so would be very few and far between. As I say, normally one would expect the first investigation to be carried out, and sometimes even the second investigation, within the normal procedures which are laid down and which are now being studied in detail by the Davies committee.
§ That is the general case for a discretion to be afforded to the Commissioner. Our second Amendment, No. 114A, we feel is of particular importance. It should be open to members of staff who so desire to go to the Commissioner direct, and in such circumstances that if the Commissioner so wishes he can investigate forthwith. I say this for this reason. There are certain circumstances in which it is only the staff who know when things are going seriously wrong. I am referring to the long-stay hospitals, especially the geriatric hospitals and those for the 353 mentally handicapped. We have all, I am sure, been shocked by the revelations of the inquiries made in the last few years. In the Welsh Office we took over our responsibilities within a week of the Ely Report, which I think horrified everyone. When the announcement was made, about a year ago now, of the appointment of the Health Service Commissioner this very matter was raised in the House by my noble friend Lady Serota. She referred to the victimisation of staff which had actually occurred—this is not just hypothetical: staff who knew that things were going seriously wrong but could not get redress by reporting matters to their superiors, who were in some instances condoning what was happening. If this type of case is not to be allowed to go straight to the Commissioner, and if he is not to be allowed to investigate directly, there will be a very strong disincentive to members of staff who may be victimised. In the Ely case it even went to the point of dismissal, though there was subsequent reinstatement. Therefore we think it is very wrong not to allow a discretion to the Commissioner.
§ We feel that it ought to be a general discretion, and if the Government will accept our first Amendment that will satisfy us entirely. But we are under very particular pressure to make certain that not only should staff employed by or under contract (because this could apply to doctors or nurses, or people on the administrative side of the hospital) be allowed to go directly to the Commissioner but he should investigate at once if he considered it desirable. I do not believe there is any other way in which we can ensure that gross maladministration may not sometimes taken place, particularly, as I say, in the long-stay hospitals, where the patients themselves, from the nature of things, are not normally in a position to take the necessary action. And it would be entirely fortuitous if one of them happened to have a highly intelligent and persistent relative who might have suspicions that things were going wrong. It is really only an internal knowledge that can bring to light any possible scandals in these hospitals, and the big inquiries we have had at several institutions in the last few years seem to me entirely to prove this case. Therefore, we felt we were under very strong 354 obligation to put down these Amendments in order to provide in this particular subsection the kind of discretion to use his own judgment which is afforded to the Commissioner in the other activities which he can undertake under the Bill. I beg to move.
§ 8.17 p.m.
§ LORD STRABOLGI
I should like to say a few words in support of my noble friend Lady White. I think it is highly undesirable that hospital boards should act as judges and juries in their own case. There will also be great difficulties for staff members if they make complaints to their own employers. Many of these staff members are shy, nervous people; I think it would be a great ordeal for them. They would be confronted by a high-powered tribunal. Sometimes they would have to undergo cross-examination by skilled lawyers retained by the hospital board without the benefit themselves of any legal representation—because they will not be entitled to this. But, most important of all, there will be fears of vicitimisation. My noble friend Lady White mentioned this. She spoke particularly about the Ely Hospital, at Cardiff, and other inquiries. Many of these inquiries resulted from a book published by AEGIS, of which I have the honour to be President, called Sans Everything, and since then a great many improvements have come about. I think we owe a great debt to Mr. Richard Crossman and my noble friend Lady Serota for their great courage in publishing that report by Sir Geoffrey Howe. We also owe a great debt to Sir Geoffrey Howe for the way he went through this hospital like a dose of salts and his report is absolutely horrifying. As my noble friend said, there were cases in Sir Geoffrey's Report which show that the complainant was victimised, and indeed was dismissed.
Another report, which my noble friend did not mention, was that of the Farleigh Hospital Committee of Inquiry in 1971. I should like to quote two paragraphs from that report, as an example of what we have in mind. Here they say:Mrs. Saunders told us that following the interview with the Deputy Secretary the chief nursing officer offered to reinstate her at Farleigh if she would withdraw the allegations that she was making. We believe this statement. Mrs. Saunders was not prepared to withdraw her allegations and wrote to the 355 chief nursing officer saying that she had been wrongfully dismissed. She was not reinstated.Then they go on:Although a domestic system for investigating complaints already exists within the Health Service, we do not believe that it is adequate. The history of complaints made at Farleigh and the manner in which they were handled demonstrate to our mind the need for an independent authority to which unsatisfied complaints by, or against, staff can be taken. This authority should be armed with the widest possible powers.The system which the Government are proposing under this Bill may have some advantage as a form of window-dressing, but it does not seem to me to have any validity at all unless members of hospital staffs are able to complain direct to the Commissioner and not simply to those people who employ them. I therefore hope that the Government will accept the Amendment.
§ LADY RUTHVEN OF FREELAND
I support the Amendment proposed by the noble Baroness from the Benches opposite. I have read all the reports on these various hospitals, and it seemed that in each one the junior nursing staff were being almost bribed to withdraw evidence. I know from my own experience that it is naturally very difficult to get junior staff to make complaints against their seniors. I know of a slightly different case, but it has a certain bearing on this matter. I was on a hospital management committee, and one of the members of the committee visited a geriatric hospital. On going round, this member found that the senior nursing staff were not there, and he, or she—I cannot remember what sex the person was—got some very bad complaints about what was going on in the hospital. Those complaints were made by the junior nursing officers about their seniors. The member of the hospital management committee came back and reported, and the hospital management committee set up an inquiry by three members of the committee to look into the question. They made their report, and it was given to us on the hospital management committee.
One of the three people who were sent from our management committee on this inquiry was a retired civil servant, and by chance he met an ex-colleague of his who was then in the Health Ministry. 356 Unfortunately he talked to this ex-colleague, who went straight to the Minister, or whoever it was; and down from the Ministry, as it then was, came a complaint to the Regional Board, and then from the Regional Board to the hospital management committee. The report of our inquiry was absolutely slammed down, and the Ministry instructed the Regional Board to have an inquiry. I, having been on the hospital management committee, naturally could not be a member of the inquiry. I protested and said that I knew that these things had been happening.
When the Regional Board inquiry went down, they never saw any of the junior people. They were told that everything was all right, and they made a report to the Minister saying that this hospital was perfectly all right, there was nothing to complain about, and that none of these things had happened, although I knew myself that they had happened. If that can happen to a hospital management committee, how much more difficult is it going to be for a junior person employed in the hospital to make a complaint against his seniors? Of course it will not go further. I think it will be terrible if these juniors have not the possibility of going direct to the Ombudsman or the Health Commissioner. Most people are frightened about complaining about their seniors, and it takes quite a lot of guts to do it. I hope that my noble friend the Minister will consider this proposal and perhaps be able to help us support the view put forward by the noble Baroness opposite.
§ 8.25 p.m.
§ LORD ABERDARE
I will certainly consider what has been said on this Amendment. I must say that when I first saw it I had some feeling that there was something in it which we might have been able to consider very carefully, but having looked into it I find that there are some real difficulties. In the first place—and I think that the noble Baroness accepts this—in principle it is desirable that complaints should be made to the managing authority. After all, this is an important part of their management responsibilities, and they can, and do, very often clear up to everyone's satisfaction the vast majority of complaints that reach them. I think that in practice there are some serious difficulties. The 357 noble Baroness and other noble Lords who have spoken emphasised the difficulties of avoiding victimisation. Certainly we are as well aware of these difficulties as those of your Lordships who have spoken this evening. However, I do not think it is altogether fair to quote what has happened in the past, be it at Ely or at Farleigh, because the very fact that it has happened has meant that considerable changes have taken place.
Tribute has been paid to various people, and I would accept that the right honourable gentleman, Mr. Crossman, and the noble Baroness, Lady Serota, acted with admirable speed and set up the Hospital Advisory Service, which is one action that has been taken to prevent the recurrence of this sort of affair. Indeed, there are certain things that will occur as a result of this Bill which should help to avoid any form of victimisation in the future. As the noble Baroness mentioned, there is the Davies Committee, which is particularly concerned with this matter. I know that it is one of the subjects in which they have taken a great interest. Then there will be the community health councils: they will be in and out of the hospital, and able to talk to staff. The sort of situation that has occurred in the past, where people have known of difficulties that the staff knew about but the staff were too frightened to say anything, will not apply to the community health councils. They will be able to bring it immediately to the attention of the district management team or the Area Health Authority.
§ BARONESS WHITE
The noble Lord has mentioned the Davies Committee, but the Davies Committee will not report until after the Bill is through.
§ LORD ABERDARE
I am merely mentioning that there are these further safeguards in the future. The very existence of the Health Service Commissioner will not only strengthen the hand of the complainant, because he will be there as the appeal of last resort, but also surely deter anybody senior to this junior member of the staff from attempting to victimise, as he will know that there will lie an appeal to the Commissioner in the last resort.
I see practical difficulties in allowing a direct appeal to the Commissioner. If one takes the first Amendment to be concerned 358 with patients as well as staff, how is he to decide whether the complaints that are put to him direct are ones where victimisation is likely? If one were merely to tell patients that they could write to the Health Service Commissioner if they fear victimisation, it would certainly be resented by hospital staff. Any general invitation to patients to approach the Health Service Commissioner with complaints would probably lead to a flood of letters which he could not deal with. I think there is a real danger that if he got these letters, whether from patients or staff, he would have to make inquiries himself at the hospital to ensure that this was a genuine case where there was a danger of victimisation.
I should have thought that in the vast majority of cases he would have to say to the person complaining, "I think you should put your complaint in the first place to the management body, as that is the normal procedure". That would not only cause the complainant great disappointment but also cause resentment, and the complainant would certainly feel that he had been badly treated by the Health Service Commissioner. I think there are real dangers that the office of the Health Service Commissioner might receive a lot of complaints direct, might have to refer a great many of them back to the management committee; and this would reflect badly on the office and prestige of the Health Service Commissioner.
With regard to the staff, the same general propositions apply, I think, and the difficulties are equally great. How does the Health Service Commissioner decide whether he should investigate a complaint that is made directly to him? How is he to know whether an allegation that there is such a risk is or is not justified unless he undertakes an investigation to find out? Or is he simply to take at face value any allegation that victimisation may occur? We fear that the effect of accepting Amendment No. 114A would be that the Health Service Commissioner would have to inquire into all cases which alleged the risk of victimisation, at least to see whether the allegation was justified. Secondly, many complaints which would otherwise never have found their way to the Health Service Commissioner at all, because they were too trivial, would be sent to him; and although the 359 Amendment refers to complaints from members of staff it would plainly be very difficult for him to refuse to forward complaints from patients if he was asked to do so.
Thirdly, there would be the curious situation that complaints made by patients and their relatives or friends, including those alleging victimisation, would have to go through the usual channels, while those made by staff—perhaps about the same matters—could be dealt with by the Health Service Commissioner. Those are the practical difficulties of the noble Baroness's Amendments, and I am bound to say that I find them too difficult to get over to induce me to advise your Lordships to accept these Amendments.
§ LORD HAYTER
I cannot help saying at this juncture that I am not convinced by the arguments put forward by the Minister, and I say that on two grounds. The first is that we must bear in mind that the staff of a hospital, particularly the nursing staff, are in a most peculiar position. They are probably the most vulnerable in the whole of the country. They are part of a profession, and if victimisation were to take place their career, and the training that had gone before, would be absolutely finished. Secondly, we have got ourselves into this position—not by my choice, nor by that of many others here—of completely abolishing these district management committees and we are left with a district management team. So how can you expect the staff of a hospital to go with its complaint to the district management team, knowing that that team are bound to support their own superior staff? What other alternatives have they? The Minister says that they have the community health council, but if that council is to investigate it must do precisely the same work as the Commissioner, without the expertise which he must bring to his position. So I am all in favour of the second Amendment—the first Amendment is slightly more doubtful—and, so far as the staff are concerned, I shall vote for it if it is pressed.
§ THE EARL OF ONSLOW
Would it be fair to say that the incidents at Farleigh and at Ely would not have happened if the staff had been in a position to appeal to an Ombudsman at the time? If that 360 is so, then surely the other administrative and practical difficulties should be overridden. After all, the nursing staff is not completely made up of barrack-room lawyers and complainers. They are highly responsible and intelligent people. If the Ely and Farleigh cases could have been prevented by a complaint to the Ombudsman, that would seem to me to be an overriding reason for supporting the noble Baroness's Amendment.
§ LADY RUTHVEN OF FREELAND
I should like to say one more word in support of what the noble Lord, Lord Hayter, said. I know nursing staff in different types of hospitals all over the country, and they are most loyal people. They never want to complain unless something is really wrong. I am absolutely certain of that. I am convinced that that was the position at Ely and at Farleigh, as it was in the case I described to your Lordships, which happened a long time ago and never reached a public inquiry. Both male and female nurses are very loyal and they would complain only as a last resort when they were absolutely in despair about what was happening. So I entirely support the noble Lord, Lord Hayter, and the noble Earl, Lord Onslow, in what they have said.
§ 8.36 p.m.
§ BARONESS SEROTA
I confess that I am bitterly disappointed at the answer which the Minister has given us this evening, and I could not help feeling, as he came towards the end of his remarks, that he too felt that some of the arguments he was advancing, particularly against Amendment No. 114A, were a little thin. Of course we agree that, wherever possible, complaints by patients, by relatives and by staff should be dealt with as quickly as possible, and as closely as possible to the source. I was chairman of a hospital for nine years, and the moment that a complaint came in the surgeon superintendent or another member of the management committee and I immediately offered to see whoever was making the complaint. That was clearly the best way of dealing with that kind of situation.
I should like to underline the point which my noble friend Lady White made so effectively. In the acute hospitals, where patients are there for a short time and have relatives to speak for them if 361 they are ill, and where nursing staff live out in the community, although they work in the hospital, there is a much more fluid situation than exists in some of our long-stay hospitals. Situations cannot build up in the same ways and over such long periods of time. Mention has been made to-night of the inquiries into conditions at Ely Hospital and at Farleigh Hospital, but in the case of Whittingham Hospital—the most recent of the reports under Section 70 inquiries—the nursing staff had found themselves in difficulties in raising issues on behalf of patients, and in connection with nurses' training, since 1965. It was not until the summer of 1969, when Dr. Masters wrote direct to the Secretary of State, that something eventually began to happen. These are long periods of time, either for staff to be disaffected or victimised, or for patients to be suffering as a result of ill-treatment or neglect.
It is not sufficient for the Minister to say that the Department and the Government are aware of the possibilities of victimisation. Nor is it right to say that it is not fair to quote the past, because we know and must accept that it could be happening now. Nor would I say that it is sufficient to suggest that we wait for the Report of the Davis Committee—
§ BARONESS SEROTA
Perhaps I am being unfair to the noble Lord. Let me say that we are all waiting anxiously for the report of the Davis Committee. But it would be wrong to suggest that these are matters with which community health councils can deal, pecause they are not the kind of situations which we have in mind, particularly in respect of Amendment No. 114A. The practical difficulties which the noble Lord listed about allowing direct access to the Commissioner were quite reasonable; but, as the noble Earl, Lord Onslow, said, if you believe in the principle then it is possible to overcome the practical difficulties.
The main burden of the noble Lord's case was that it would or could—I think could, rather than would—result in a flood of letters to the Health Commissioner. He would receive too many complaints direct, and how would he know which to take at their face value and how he should set about his inquiries?
362 I have the greatest faith in the abilities and the qualities of Sir Alan Marre, the Health Commissioner, and presumably the Government would not have appointed him to this post if they did not have similar faith and confidence in his abilities in this field. I am prepared to put my faith in him. I certainly do not see him as the ultimate deterrent. The reason why this would be a protection for staff, even if in the event he decided that the matter should be investigated locally first, is that once it was known that the member of staff had been to the Health Commissioner and that the Commissioner had recommended that the complaint should first he investigated locally, I believe that that member of staff would be protected. The mere circumstance that the Health Commissioner knew that a complaint had been made would be a safeguard to staff and, I believe, would do a great deal to reassure members of staff—who, after all, very rarely want to bring complaints of this kind.
Members of Health Service staff are not rushing to make complaints. Indeed, I think they have to be very certain that the patients in their care are not receiving the care and treatment that they should be receiving before they go to the lengths to which some of these members of staff have had to go. As I think my noble friend Lady White said, except in the case of Whittingham, where the complaint came direct to the Secretary of State, the staff were dismissed; and even in the case of Whittingham Dr. Masters and his colleague were asked to go. He wrote to the Secretary of State the day after he was asked to leave the hospital, and I am glad to this day that he had the courage to do so; but it was not an easy thing for him to do.
I beg the Minister to think again. I cannot understand why the Government are being so rigid on this matter. I fully understand—and I said so myself at the time when the noble Lord made his Statement about the Health Service Commissioner to the House—that at one time the proposals that are before us now would, I think, have been accepted by us all. But I cannot forget the last three years, and I do not think any Member of this Committee should forget the last three years. I think it is completely fair to quote the three Reports because, as I said before, this could be happening now and it could 363 happen again. In those circumstances, I am begging the Government to listen and to consider whether particularly Amendment No. 144A is not one they should accept in the light of all that has happened. I believe that the Health Commissioner is more than competent to cope with the situation, and I think the staff of the health professions would be given confidence if they knew that the Health Commissioner knew that they were concerned about situations in their hospitals to the point that they felt they had to appeal for his help. I hope the Government will listen, will think and will be prepared to accept these Amendments.
§ LORD ABERDARE
The Committee has made its views on these Amendments very clear. I am perfectly willing to look at them. I canot advise the Committee to accept them now, but if I may be allowed to take them back and consider them further I will certainly do so. In reply to what the noble Baroness, Lady Serota, has just said, and in reply to my noble friend Lord Onslow, I should like to say that it is of course very difficult to say what would have happened in these cases if there had been a Health Service Commissioner in the past. But I believe, if I may repeat what I said before—and I am particularly thinking of Whittingham, which has been very much in my mind; it occurred, as the noble Baroness knows, very shortly after I got my present post—that if there had been a community health council at Whittingham they would have known what the junior staff were thinking at the hospital because they would have been in and out of the hospital the whole time. That is the idea of the community health councils.
§ BARONESS SEROTA
Perhaps I may interrupt the noble Lord to say that I do not believe the community health council could have known that there was such a severe misappropriation of patients' pocket money, which, after all, was the point on which the inquiry was initiated, in the absence of any other kind of evidence which could easily be substantiated.
§ LORD ABERDARE
There were other complaints, as the noble Baroness knows, of which I was thinking. I did not have the complaint about pocket money so 364 much in mind, but there were other complaints which certainly the community health council would have known about. There were also complaints which were investigated by the hospital management committee, if my memory serves me aright, which, under the present arrangements, could have led eventually to an appeal to the Health Service Commissioner. I am merely suggesting that there are certain provisions in the Bill which will help towards making less likely victimisation of the sort which has happened in the past. But I fully appreciate the anxieties which have been expressed to-day, and I shall certainly take these Amendments back and have another look at them if the noble Baroness will agree to withdraw them at the moment.
§ BARONESS WHITE
This has put us in a very difficult position. I should be willing to withdraw No. 144 at this stage because I recognise that it opens the door rather wide, and the last thing we want is for the Health Service Commissioner to be overwhelmed with complaints. We entirely agree that that would be most undesirable. As I said at the outset, in the normal course of things such complaints should be investigated and sieved at a much earlier stage, and not go to him. I am wondering what confidence we can really put in the Minister coming forward on Report stage with anything that would meet us on Amendment No. 144A. Had he spoken with real conviction himself and said that he really felt that something needed to be done but that this was perhaps not quite the way to do it, I would feel much happier. But I am really dubious, in view of the arguments he has put forward with apparent conviction, whether we have any real hope of getting anything better than this.
§ LORD ABERDARE
It is always open to the noble Baroness, if I do not satisfy her, to put down her Amendment again on Report stage.
§ BARONESS WHITE
That, of course, we shall certainly do. It is difficult, when a Minister says that he will take something away, to press it, as I frankly should like to press it but provided that he and everyone else in your Lordships' Committee recognises that this is, for some of us, a real sticking point, then it may perhaps be the wiser thing to withdraw 365 the Amendment to-night and allow the Minister to have further consultations.
There is one aspect which has not been mentioned to-night. Primarily, we have had emphasis laid, and very rightly, on patient care and that kind of thing, but there are other areas in which things call go wrong in large establishments. On the catering side, the supply side and so on there can be dishonesty. We need think only of the recent Naval catering case, where misappropriation had gone on for so long. This is another set of circumstances in which, unless one can be sure that the complaint goes quickly to someone in authority who is completely independent and has nothing to fear from an investigation, what I said at the beginning is true; that is, that what is politely called "erosion of evidence" may very well take place. From this aspect, which has not been stressed, I think it is also necessary that the Commissioner should have discretion. That is all we are asking for. After all, we are all experienced in these things. Anybody who has been a Member of Parliament, for instance, usually develops a very good sense of whether a complaint that comes to him is likely to be one which is really serious or not. One gets a certain expertise in this; and those people whose job it will be to deal with this, the staff of the Commissioner, will I am sure get that kind of instinct. Also, there have been institutions from which various complaints have been coming up which lead one to suspect that there may be much more to it than, perhaps, one or two individual instances of maladministration. We have had such a strong expression of opinion on this Amendment that while I am prepared to withdraw it, I think we should test the opinion of the Committee on Amendment No. 114A.
§ THE EARL OF ONSLOW
There has been a great deal of sympathy for the noble Baroness which was nobly put on this side of the House. I think the Minister has gone very far. Is it not better to have the point of view listened to when something else is introduced at the Report stage than to have a dog fight about it and get no bone at all?
§ BARONESS WHITE
Again one is put in a difficult situation, because we have made it clear what we think about this. We are not at all convinced that the 366 Minister is going to bring forward anything that we should regard as satisfactory. Having given notice, so to speak, of the stand we propose to take—I see the Government Chief Whip is here and he can bring up his cohorts—it puts us in a difficult position.
§ LORD ABERDARE
I cannot go further. I have suggested every sort of opportunity to the noble Baroness. I am prepared to meet her, to consult with her, to discuss with her, to see whether we can come to an arrangement. If I fail, she has the opportunity at Report stage or even at Third Reading to put down an Amendment identical to this one. I cannot make a better offer.
§ LORD SHEPHERD
May I intervene at this point? Perhaps I might have some assistance from the noble Earl the Leader of the House. I am not putting this forward on behalf of my noble friends but as something they themselves might like to consider. It is whether the Minister feels that he could give some firm undertaking on Monday as to what his views of the matter would be. He shakes his head. If he had been in a position to do that, I should have suggested that we adjourn at this particular stage of the Committee, go back to it as first business on Monday and then perhaps come to a decision. But clearly the Minister cannot do that. Therefore, I think I must leave it to my noble friends Lady Serota and Lady White to decide what they do on an issue which I know is causing them very grave anxiety.
Since the noble Lord, Lord Shepherd, invoked me perhaps I may intervene here. I cannot speak on the merits of this; it would be wrong for me to do so. My noble friend Lord Aberdare is better able than I to do so. I have only come in very late in this particular discussion. I have heard what my noble friend said and also what my noble friend Lord Onslow said. I feel that my noble friend Lord Aberdare has made a very straight offer to the noble Baroness opposite. He said that he will take this back. He went further and said that he would be willing to consult with the noble Baronesses, Lady White, and her colleagues, to see whether they cannot decide something satisfactory to everybody concerned. That 367 certainly was a very fair offer made in the way that we should act in a Bill of this sort. If noble Lords opposite wish to take this to a Division, let it go to a Division. But I should have thought it far better to deal with this matter by accepting the straightforward offer made by my noble friend.
§ LORD PLATT
Do I understand from the noble Earl the Leader of the House that he is himself not entitled to give an opinion on this and that if it is put to the vote he will abstain?
That is very fair comment. I do not think for one second the noble Lord would expect me to do anything of the sort. I hope that it will not go to a Division. If at the Report stage it is put forward again, I will listen to the debate and decide what I shall do.
§ BARONESS WHITE
In that case, I shall have the pleasure of being in the same Lobby as the noble Earl; for he could not resist the weight of argument on this particular matter. I am very reluctant about withdrawing this Amendment particularly because I know how deeply my noble friend Lady Serota feels about it. I think that this is possibly one of the points of the Bill that she feels more strongly about than anything else. On the other hand, the Minister has made his offer. One of the troubles is that when one has a benevolently-minded Minister, he is likely to say that he will look at things again. We hope that this time this offer really has substance and is not just benevolence. In all the circumstances, but with reluctance. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 35 agreed to.
§ Clauses 36 to 39 agreed to.
§ Schedule 3 [Matters not subject to investigation by Health Service Conimissioners]:
§ 8.56 p.m.
BARONESS WHITE moved Amendment No. 115:
Page 55, line 44, after ("judgment") insert ("(except in the case of an error in clinical judgment which, in the opinion of the Commissioner in question, there is reason to suppose may have been due to serious or prolonged neglect)").
§ The noble Baroness said: I beg to move Amendment No. 115 standing in the name of my noble friend Lord Stow Hill and myself, because I think we ought not to pass this Bill without having at least a discussion about what I fully recognise is a peculiarly sensitive and difficult point. But that it is sensitive and difficult is no reason why we should not have as clear a look at it as possible. I am well aware of the feeling among professional people in the Health Service, and one can understand it. They take the responsibility for their own clinical judgment and they must not be under any kind of apprehension that if they should make an error of judgment (and anybody, even the most conscientious person, can do this) this would in some way be brought against them; that somebody is looking over their shoulder perhaps at a very critical moment in the health, or even the life, of their patient.
§ One is fully appreciative, (therefore, of the very strong resistance that exists to any questioning of clinical judgment. In certain circumstances there is a remedy in the courts: one can take action against someone. The rather frivolous example given is that of the case in which somebody amputates the wrong leg. That remedy is open; but it is infrequently taken. It is extremely difficult to take, for two reasons. One we have referred to before: that it is very costly and the outcome is uncertain. That is a strong deterrent. But there is another strong deterrent: the extreme difficulty of obtaining any kind of evidence on which to base a case. It is because of this extreme difficulty that we feel we should look at the situation. It is not true that in no instances are medical matters examined in the public administration. The Parliamentary Commissioner for Administration is entitled to examine matters into which clinical judgment has entered in hospitals which come under the Home Office. There he is assisted by a medical assessor and relies on him for the medical aspect of the situation which has to be investigated.
§ In other countries where the medical profession, I am sure, is equally jealous of its own education and standards— in Sweden, for example, where they have an ombudsman—it is fully recognised that he may investigate matters in which clinical judgment is involved, but always with the 369 assistance of the appropriate medical assessor who, plainly, must be at least of equal competence to that of the person who is complained against. So we are not entirely without a precedent. I believe it true to say that within the medical profession there is a growing feeling that some kind of examination by one's peers is justified where there is reason to believe that there may have been, in the words of our Amendment, "serious or prolonged neglect". We are trying by this form of words to indicate that we are not concerned with the sort of judgment where it may be a question of a finely balanced diagnosis, a difficult matter in which one has to use one's best endeavours to prescribe the appropriate treatment, though one may be wrong. We fully understand that. As the noble Lord, Lord Platt, said, it may be that a new drug is being tried, or an operation is being performed for the first time using some new technique. With the best will in the world things may easily go wrong, and in those circumstances no one would suggest that there should be any problem.
§ One knows, too, that there are patients who have imaginings of all kinds; who may suppose that they have some complaint. Or some hysterical relative may suppose that there is a ground for complaint when in fact there is none. But we do know that there are circumstances in the Hospital Service and in general practice where there is what we call "serious or prolonged neglect". Many of us may know among our own range of acquaintances or from our own experience of examples of cases where, if a doctor had really been doing what he ought to have been doing, things would have gone differently. That could apply in both branches of the Service, as I say. But to obtain any kind of remedy is at the present time exceedingly difficult. As I said on an earlier Amendment, I am not now speaking of those who want to get some kind of monetary compensation. The way is open for them. If they want to get compensation, their proper remedy is to go to the courts. I am thinking of people in respect of whom there has been neglect, serious or prolonged, and where, when this is apparent, people may feel that, not only for themselves but also for the benefit of other people, they ought to try to take 370 some sort of action. And so we put down this Amendment.
§ There are two distinguished medical men in your Lordships' Committee. I do not know what they think of the Amendment. I do not know whether they would feel inclined to comment on it. My noble and learned friend Lord Stow Hill and I felt it right to put it down because it is not unknown that in certain circumstances —in a Home Office hospital, for example, because such hospitals are not part of the Health Service—a Parliamentary Commissioner can investigate situations in which there is an element of clinical judgment involved, always provided that he has adequate professional advice. Other countries are able to deal with such situations apparently without upsetting the medical profession. This is not a matter which we would press, but we feel that we cannot pass a Bill of this kind, under which we are setting up a new procedure for investigating possible deficiencies or defects in the Service, without taking a look at this matter and not turning aside from this very difficult field of grave neglect—not just an error of judgment but very grave neglect—by the professional persons involved.
§ LORD PLATT
Until I heard the noble Baroness explain the full meaning of this Amendment I was not prepared to give an opinion, and I do not know that I am now. It seems to me that the noble Baroness made out a very good case. The only thing is: is serious or prolonged neglect a matter of clinical judgment at all? I do not know. But that is my first question, whether this is really a matter of clinical judgment. Then, of course, there is the question that there is a remedy in law, though I accept that sometimes that is very difficult and may be very expensive. Before I finally make up my mind I should like to hear the observations of the noble Lord who will reply for the Government, but it seems to me that this is a case in which we may be able to support an Amendment of this kind.
§ 9.6 p.m.
§ LORD STOW HILL
I do not want to take up the time of the Committee, but obviously this is a matter of the greatest importance and I should like to add something, though not, I hope, repeating a word of what has been said by my 371 noble friend Lady White. The problem is that we have a situation in which, when it is looked at from the outside, the strong probability seems to arise that something—if I may use a generic term —has gone badly wrong; that the system has broken down, or something has happened which ought not to have happened if the affairs of the particular institution had been properly conducted. May I cite a case in which I was professionally concerned as counsel? In order to spare possible pain I will not say where it occurred, but I will say when it occurred. It was about half a century ago, when I was first called to the Bar.
An injured man was brought into a casualty department. The doctor in charge examined that person but could find nothing wrong with him, and therefore refused to admit him to a ward. An hour later the man died. He was brought in with a history of having been run over by a Foden steam lorry. That was a matter of clinical judgment. I dare say that his life could not have been saved, but he was not admitted to a ward. The doctor could find nothing wrong with him, although he was brought in with that history, which one would have thought should indicate to anybody that he must have something very badly wrong with him, as he had. I put that before the Committee as a case in which the Committee might think it would be wrong, in this system that we are building up of the Commissioner's jurisdiction, to enact that in that particular case, because the doctor performed an act of clinical judgment, there should be an absolute full-stop; that there should be no possibility of the Commissioner's investigating the case to see, for example, whether there were grounds for thinking that the doctor appointed was wholly inadequate to the task in terms of experience, training or something of that sort, or whether there was some other matter which needed bringing to light and which could result in such an error, if it was an error, of clinical judgment.
It may be—I just do not know—that it is impossible to tell in a case like that when you palpate (I think that is the phrase) a patient how far he has been injured and whether or not something is desperately wrong with him which requires urgent treatment, but the point 372 I am putting is that in that sort of case an outsider, the Commissioner or anybody else, looking at it might well think to himself: "True this is a matter of clinical judgment. The doctor did his best and came to a wrong conclusion. But it ought not to have happened if that casualty ward had been properly equipped, properly conducted, with a doctor of proper experience and so on in charge of the ward." Perhaps he was overtired, overworked and without proper assistance, and that that contributed to the error of judgment in question, if there was an error of judgment. It is simply that sort of case that we would submit to the Committee ought not to be met with a full-stop because there was a matter of clinical judgment which could be pointed to which would put an end to the jurisdiction to inquire.
§ LORD PLATT
Before the noble and learned Lord finishes, may I say that surely that is just the kind of case in which an appeal to the law is the right appeal. What can a Health Commissioner do about a patient who has been run over by a steamroller, or something of that kind, and who is dead? The law can surely provide his relations with some kind of compensation. I should not have thought that that was a good example of serious or prolonged neglect. It is a serious error of clinical judgment, certainly, but that is surely what the law provides for.
§ LORD STOW HILL
I did not make myself clear. The man was alive. He was brought in, and he was alive. Then he died. He was put upon a bed and examined, and nothing could be found wrong with him. He was allowed to lie on the bed alive, and he died an hour later. That is the situation. I am not a doctor, and I do not understand these things. but the point is that there is a case in which one might well think that an error of judgment of that sort could not have been made in a properly conducted casualty ward; that there must have been some outside, supervening neglect to man the ward properly; that the doctor must have been overworked, overtired, inexperienced or anything else. In a case like that the Commissioner should not be precluded from at least putting those questions to himself. But, as I read Schedule 3 at the moment, all 373 that has to be pointed to is the fact that the doctor made an error of clinical judgment; and then the curtain is brought down. There can be no further inquiry; the Commissioner's jurisdiction is wholly excluded.
That is the sort of situation—I give it purely as an example, and it may not be a good example—in which I submit that the Commissioner should be entitled to ask himself: "May there have been some outside neglect which could have led to this error of clinical judgment and which should be investigated?" He should not be wholly excluded because the matter of tragedy (which it was) was contributed to by an error of clinical judgment. There is an error of clinical judgment and as the Schedule reads, that is the end of it. What we are submitting to the Committee is that it should not be the end of it in all cases. In most cases certainly, because otherwise the whole system gets clogged up and doctors simply will not be able to function, but not in all cases. The cases in which it should not be the end should be cases in which the Commissioner, looking at them, thinks to himself: "Perhaps here there was some serious neglect or some prolonged neglect." Those are the views that I seek to put before your Lordships.
§ 9.14 p.m.
§ LORD BROCK
This is a very difficult and sensitive area of discussion and it is clearly surrounded by legal difficulties. Perhaps it is extremely unwise of me, particularly at this late hour of the night, to make any pseudo-legal comment on it, but I cannot see that the example which has been given is one that should be referred to the Health Service Commissioner. It seems to me that it should go back to common law. If the Health Commissioner considers it first, it could prejudice the ultimate decision. The patient or his relatives or dependants surely have a remedy at law here.
The thing which worries me about this Amendment is that there is confusion between an error of clinical judgment—which is a single matter—and something which is characterised by plurality: serious or prolonged neglect, which surely presupposes a whole series of errors; in fact they may not be errors, but they imply neglect or misdemeanor, or something of that sort. I do not see that you 374 can link a single error of clinical judgment with a series of prolonged incidents of neglect. For the same reason that I mentioned earlier, I should have thought that if there were a series of instances of neglect which could be alleged and proved there is a remedy at law.
§ BARONESS WHITE
Perhaps I might just put to the noble Lord, whose great experience in these matters we deeply respect, of course, that it is not so easy to go to law, for the reasons I have given: the first is money, and the second is that no doctor will bear witness against another doctor if he can help it. I must stress this. I find this a very serious difficulty when attempting to help constituents. I had a constituent, for example, who went into a local hospital for an operation of a relatively minor nature. The surgeon concerned was guilty, I would have said, of serious neglect—though not of a series of instances of neglect—because he severed a nerve, which has meant that her face is now partially paralysed. She goes to a private consultant who tells her this and says that it is a dastardly thing and that no surgeon should have been so careless. But he is not prepared to go to court and be a witness. What is she to do? This is the sort of thing that a number of us have experienced, and it worries us. This is why we put down this Amendment. I would quite agree that it could be more felicitously drafted, but that could be taken care of. However, we do feel that this is something that worries the public. They feel helpless. Very often it is not that a person wants to be vindictive, or that he or she necessarily seeks compensation. But people feel that in a public service like this these things should not be allowed to go on without attention being drawn to them. Unless one goes to court, very often attention is not drawn to them. If one goes to a solicitor for advice, he may say, "certainly in equity you have a good case but in law you are not going to be able to stand up in court because you cannot produce adequate witnesses." This is a very real problem. If we could feel there was some other way of meeting the situation or some alternative or improved wording in the Bill, we should not be wedded to this particular Amendment; but we feel that it is something which ought to be considered.
§ LORD BROCK
I must express my resentment at the statement that doctors will not give evidence against other doctors. This is absolutely wrong. There are many doctors who are sufficiently aware of the desirability of giving evidence without fear or favour. I agree that there are many doctors who might be loath to give evidence against another doctor; but to say that doctors will never give evidence against another doctor is far too sweeping, and anyone who has had the experience of appearing before the courts will have had experience of evidence having been given by one doctor against another.
§ LORD ABERDARE
I think that what has been said by the noble Lord, Lord Brock, and the noble Baroness, Lady White, illustrates the difficulty here. Doctors are very sensitive about their clinical freedom. They have always enjoyed a clinical freedom and I think most of us consider that there are very great benefits to the patient arising from the fact that doctors do have this clinical freedom. They would be inhibited and might find their lives made rather difficult if they were liable to investigation on matters of clinical judgment. This is certainly what underlies the provisions in the Bill.
We have taken it as a principle of the Bill that the Health Service Commissioner should not investigate complaints about actions resulting from clinical judgments. The Health Service Commissioner is there to investigate failures of service, or failures to provide a service, or maladministration. I should have thought that in those cases mentioned by the noble Lord, Lord Stow Hill, where an accident and emergency department was not being properly run, or certain facilities were not being provided, on that administrative basis on appeal to the Health Service Commissioner could perfectly well be made. Where it comes to the clinical freedom of the doctor concerned, we should be treading on dangerous ground to alter the situation that obtains at the moment. The remedy lies at law, if anywhere.
The trouble is that the Amendment would lead to investigations which would affect and involve the Health Service Commissioner in questioning and discussing matters of clinical judgment. As 376 soon as the question of whether an error had or had not been made was considered, this would involve clinical judgment. It might also be a matter of clinical judgment whether, for example, a doctor's decision not to re-examine a patient was a reasonable one, or was to be regarded as serious or prolonged neglect of the patient. It is because the Amendment conflicts, as the noble Baroness realises perfectly well, with what we believe to be a sensible and good principle that I cannot advise the Committee to accept it.
Even if it were considered desirable for the Health Service Commissioners to investigate matters of clinical judgment in certain circumstances, they would be precluded from doing so in the majority of cases under the provision in the Bill which prevents investigation of actions in respect of which the person aggrieved has or had a remedy by way of proceedings in any court of law. One would expect this to extend to most cases in which patients claimed to have suffered severely as a result of an error in clinical judgment caused by negligence. My real worry about the Amendment is that it raises, as the noble Baroness told us, the whole question of clinical judgment of doctors. We should be very careful not to disturb a right that is highly valued by them, and which to my mind is to the advantage of the patient.
§ BARONESS WHITE
As I indicated at the beginning of our discussions, this is not one of the Amendments that we wish to press. We were absolutely right to bring it up, and I hope that the problems which underlie this Amendment may be further discussed in another place. At this late hour, and in view of all the circumstances, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Schedule 3 agreed to.
§ LORD ABERDARE
I think we have gone about as far as we ought to go this evening, and I beg to move that the House do now resume.
§ Moved, That the House do now resume.—(Lord Aberdare.)
§ On Question, Motion agreed to, and House resumed accordingly.