HL Deb 07 March 1987 vol 487 cc299-303

6.58 p.m.

Report received.

Baroness Robson of Kiddington moved Amendment No. 1: After Clause 3, insert the following new clause ("Other investigations: clinical judgment.

  1. —(1) The Health Service Commissioners may investigate any matters within the scope of their authority which in their opinion require investigation.
  2. (2) The Health Service Commissioners are hereby empowered to investigate complaints relating to or arising out of the exercise of the clinical judgment of a medical practitioner.
  3. (3) Paragraph 19(1) of Schedule 13 to the 1977 Act is hereby revoked.").

The noble Baroness said: My Lords, I should like to restate my regret that I was unable to be present during the earlier stages of the passage of this Bill through your Lordships' House. This amendment deals with the extension of the powers of the Health Service Commissioner. As your Lordships will know at present the Health Service Commissioner has no power to investigate complaints against clinical judgments nor against the general practitioner or the family practitioner committees.

In 1983, which is the latest year for which I have exact figures, 19, 800 written complaints were received by health authorities. It seems a very small number of complaints out of 64 million in-patients and 53 million out-patients, but there were 19, 800 written complaints and of those about 1, 000 failed to be satisfied through the normal National Health Service internal complaint procedure. One thousand of these complaints were forwarded to the Health Service Commissioner. Out of those 1, 000 complaints, 67 per cent. had to be rejected because they fell outside his jurisdiction. The majority—about 50 per cent. of the 1, 000 complaints—fell outside his jurisdiction because they were concerned with clinical judgment and the rest—about 17 per cent. of the 1, 000—because they related to family doctors, dentists, pharmacists or FPCs.

The Royal Commission of 1979 recommended the extension of the powers of the Health Service Commissioner to deal with questions of clinical judgment backed up by professional advisers. As a result of the recommendation by the Royal Commission, the procedure now known as the second opionion was instituted. This consists of two consultants in the relevant specialty looking at the complaint against the clinical judgment of a medical practitioner. Some people have been satisfied through this extension of the right of appeal, but a large number of complainants, in my view probably the majority, do not feel that this procedure is impartial.

If the complainant does not accept this investigation, his only recourse is to the courts to obtain a remedy. All of us know that to go to court is a very expensive exercise. Also the length of time taken before cases come to court is unacceptable in my view. I realise that the latest regulations about disclosure of medical evidence to the complainant will help to a certain extent, but the length of time is still unacceptable.

There are many reasons why most people would prefer to go to the Health Service Commissioner, if he were given the right to investigate. First, most of them have tremendous respect for the independence of the Health Service Commissioner and, secondly, he is responsible only through Parliament and therefore commands respect. It is also true that investigations that go to the Health Service Commissioner are dealt with much more quickly and the whole atmosphere is much less adversarial than a court of law.

The other point which I think people have failed to grasp is that in most of the cases investigated by the Health Service Commissioner the majority of people do not want financial recompense. They genuinely want to know the truth. Their main aim is mostly to prevent the same mistake happening again. There is no reason, if what they want is financial recompense, why they should not choose the courts, but if they choose the ombudsman any proceedings in the courts would be subject to absolute privilege. I think we might even go so far as to consider allowing the ombudsman the power to grant limited compensation, particularly where the quantum could be readily ascertained.

I believe that unless we move in this direction we are inevitably moving towards the American system with enormous increase in compensation granted in courts and its attendant impact on doctors who in their practices have to cover themselves by increasingly costly and in many cases unnecessary investigations; not only that, but the cost to the medical profession of adequate insurance is escalating in a quite frightening manner.

The extension of these powers to the Health Service Commissioner I firmly believe would benefit not only the majority of aggrieved citizens who abhor the prospect of litigation but also the clinicians themselves. Indeed, it might go even further and satisfy the shades of John Milton, whose famous statement in his Areopagitica of 1644, is quoted by ombudsmen the world over: For this is not the liberty which we can hope, that no grievance ever should arise in the Commonwealth—that let no man in this world expect; but when complaints are freely heard, deeply considered and speedily reformed, then is the utmost bond of civil liberty attained that wise men look for.

I hope that the noble Lord the Minister will look at the amendment with favour. If he cannot at this point agree to it, I hope that he will assure me and other Members of your Lordships' House who feel strongly on the point that further discussions will take place on the issue with the profession and with the Health Service Commissioner. I beg to move.

The Minister of State, Ministry of Agriculture, Fisheries and Food (Lord Belstead)

My Lords, the noble Baroness, Lady Robson, has set out clearly the situation when complaints are made in the health service—not in the family practitioner committee but in the rest of the health service. As the noble Baroness said, there is the avenue of the courts to which resort can be had by those who are complainants, the Health Service Commissioner being specifically prevented from investigating any action in respect of which the person aggrieved has or had a remedy by way of proceedings in any court of law.

The noble Baroness raised the familiar complaint that the length of time in the courts is considerable. I do not think there is anything that I can say about that. All I would say is that obviously in the serious cases Parliament has thought it right that the courts should be the avenue of redress.

As the noble Baroness fairly said, that is, however, by no means the end of the story. The commissioner can and indeed does investigate complaints relating to medical issues. The criterion is that, if action has been taken solely in consequence of the exercise of clinical judgment, the commissioner cannot take action; and it is for the commissioner to decide whether he believes the action is solely in consequence of the exercise of clinical judgment. Where there is a question of maladministration, the Health Service Commissioner can indeed step in and take action.

I am not entirely sure that my statistics coincide with the noble Baroness's statistics. The statistics that I have show that the commissioner not only can but does investigate complaints relating to medical issues, and that the number of complaints which were rejected on the grounds of clinical judgment have decreased over the last three years from 222 in 1983–84 to 150 in 1984–85 to 131 last year.

Baroness Robson of Kiddington

My Lords, I said that the latest figures I had were for 1983 and that out of 1, 000 complaints 453 were investigated and the rest were rejected.

Lord Belstead

My Lords, I am grateful to the noble Baroness but her statistics and mine still do not coincide—hers are very much higher than mine. However, perhaps we can agree on the fact that the number of complaints which have been rejected because the Health Service Commissioner had found that they were solely in consequence of the exercise of clinical judgment have decreased over the last three years. During the same period the number of medical grievances investigated by the commissioner has increased from 61 three years ago to 101 two years ago to 111 last year.

There is a third leg to this argument and that concerns the area where the noble Baroness understandably said that many people do not want financial recompense. What they really want is to know that the truth has been told and that if something has gone wrong it will not happen again. The noble Baroness rightly said that as regards those particular cases a procedure had been set up called the second opinions procedure, which is based on professional review to deal with complaints concerning the clinical judgment of hospital doctors and dentists.

I believe that the procedure was set up with the help of the Select Committee on the Parliamentary Commissioner for Administration in 1981 and it is also supported by the Joint Consultants Committee for Hospital Doctors and Dentists.

I was concerned when the noble Baroness said that the problem with the procedure was that it was not altogether an independent investigation. I understand why she said that, because clearly those who are investigating are professionals in this field. But I say absolutely plainly to the House that regional medical officers, who are after all responsible for managing the second opinions procedure, conducted a review of how the system was working. They reported in 1985 that they had the co-operation of the medical profession in undertaking the work and that a useful service was being provided to complainants.

The number of complaints dealt with under the second opinion procedure has increased. The number of complaints dealt with under the procedure has increased from 32 in 1981–82, to 59 in 1983, to 69 in 1984 and to 76 in 1985. Therefore the situation is that the procedures for dealing with complaints concerning clinical judgment are comprehensive. There is the avenue of the courts and of the second opinions procedure. The Health Service Commissioner may also at his discretion decide that the situation is not one which derives solely from the exercise of clinical judgment and he can step in and exercise his powers. The number of such cases has been increasing.

The procedures are supported by those concerned and the arrangements are monitored to ensure that the complainant's rights are safeguarded. Although I understand why the noble Baroness wished to move the amendment, it would have major significance for the procedures and any new arrangements would require extensive consultation to ensure that they could operate efficiently and be fully supported.

In those circumstances I am afraid that I must resist the amendment that the noble Baroness has moved. I can only express the hope that having gone over the ground I have followed to a considerable extent what the noble Baroness has said but here and there I have added some new items of information so that she may feel more assured than she was before she moved the amendment.

Baroness Robson of Kiddington

My Lords, while thanking the Minister for his reply, I wish to put right one matter as regards which he misunderstood me. I never said that I personally did not consider that the second opinions procedure was adequately independent. I said that the average complainant or the average citizen, particularly someone who stands in a certain awe of doctors, finds it difficult when dealing with the medical profession to accept that there is not a little ganging-up of the profession against him.

I do not believe that it happens, but the fact is that such an opinion exists in this country. I am sorry that the Minister cannot go any further in meeting my request for further discussions with the professions, because I feel that in the long run the Health Service Commissioner will have to be given that power.

However, in view of the lateness of my intervention in the discussions on the Bill and the lateness of the hour and the business that is in front of the House, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]