HL Deb 07 July 2000 vol 614 cc1713-22

11.22 a.m.

Baroness Hanham

My Lords, I beg to move that this Bill be now read a second time. Before speaking to the subject before us, since it is germane to healthcare I must declare an interest as chairman of a National Health Service trust in London.

This Bill was introduced and skilfully piloted through another place by my right honourable friend Sir Geoffrey Johnson Smith. The responsibility for introducing it into this House has fallen to me. I hope that I can do his careful work justice today.

In bringing this Bill to fruition, Sir Geoffrey worked closely with the Consumers' Association. That association has acted as a sponsor for it. The Bill is supported by the British Medical Association, the British Dental Association and the Health Services Commissioner, Mr Michael Buckley, among other professional bodies.

It was Mr Buckley himself who first raised the subject in his 1998–99 report. He said: A further issue on which I have expressed my concerns to the Department of Health is my inability to investigate complaints against GPs who retire or cease National Health Service work after the events complained of—or even during my investigation". This Bill, therefore, has an intentionally limited focus: to close the loophole in the Health Service Commissioners Act 1993 which prevents the health services commissioners investigating complaints against general practitioners and those working in the dental, ophthalmic and pharmaceutical services who have retired from the National Health Service even if they have done so specifically to avoid investigation.

Under that Act, which does not relate to hospital doctors, who are covered by other provisions, the commissioner's power to investigate complaints about those particular practitioners, as he has indicated himself, ceases immediately they retire.

This matter is of particular concern in the case of general practitioners, who currently, if they officially retire from the National Health Service (even if it is to avoid investigation), can continue to practise as a locum or in private practice. The general practitioner is consequently safe from investigation but the commissioner is frustrated in bringing the complaint to a conclusion. I think we would all agree that this is a most unsatisfactory state of affairs.

The matter can, however, be rectified by your Lordships agreeing to the provisions of the Bill today. Subsections (2) and (3) of Clause 1 amend Sections 2A and 2B of the original Act. Clause 1 would extend the commissioner's powers to investigate a complaint against general practitioners or other health service professionals if at the time of the complaint they were providing a service to the National Health Service.

Clause 2 amends Section 9 of the original Act by adding two new subsections, (4A) and (4B). These have come about as a result of concern expressed by the Under-Secretary of State, Mrs Gisela Stuart, and other Members in another place that the time within which an investigation could be brought should not he open-ended. As noble Lords will be aware, the Health Service Commissioners Act 1993 already provides that the commissioner shall not entertain a complaint made more than one year after the day on which the complainant first had notice of the matter complained of. However, the commissioner has discretion to waive that limit if he considers it reasonable to do so. These government amendments, therefore, limit the commission's power to investigate any matter to that which arises within three years of the last day on which the person complained about was a health service provider.

Clause 3 prevents the investigation by the commissioner of a complaint against a practitioner who has retired before the new amendments come into force, thus preventing a witch-hunt on past errors. Clause 4 names the Act as the Health Service Commissioners (Amendment) Act 2000, with an implementation date three months after the day on which it was passed. The Act is not relevant to Northern Ireland.

Noble Lords will, like me, want to believe that all those who work in the health service are paragons of virtue—competent, caring and professional. Indeed, the very great proportion of those whom we are discussing today are; and those who need their professional expertise can rely on receiving it. Sadly, however, there is evidence that this is not always true. Patients are on occasions faced with unacceptable behaviour from those health professionals on whom they place great reliance.

I do not intend today to give examples of cases which have been brought to public attention since these were described in another place. Suffice to say, they are distressing to read and traumatic for those involved.

The health service commissioner is the last recourse. He can be involved only once other processes have been completed. It is, therefore, even more important that his role should be all-encompassing so that he can seek an explanation and justice for the aggrieved.

This is a measure which is long overdue and which I believe most right-minded people would assume already existed. It is not expected that these powers will affect more than a handful of cases, but even in one adverse case patients must know that they can seek redress. The Bill will do that. It is a small measure but an important one. It received all-party support, including government support in another place. I understand from the Minister who will reply today that it will have his support. I very much hope that this House will give it a quick and clear passage so that the measures may be on the statute book at the earliest opportunity.

Moved, That the Bill be now read a second time. —(Baroness Hanham.)

11.30 a.m.

Lord Colwyn

My Lords, I thank my noble friend Lady Hanham for her clear explanation of this Bill. While I understand that the Bill closes a loophole by which a very small number of health professionals avoid investigation by the Health Service Commissioner when a complaint has not been satisfactorily dealt with at local level, I regret that it is necessary for yet another piece of legislation which can be described as "anti-doctor".

During 1999 the Government produced an abundance of Green and White Papers and consultation documents that, to greater or lesser degrees, affected the healthcare professions. There has been an unusually high number of Private Members' Bills that address healthcare and medical practice. Declaring an interest as a council member of the Medical Protection Society, I should welcome any changes that can protect the public, but I am concerned that the implications for healthcare professionals have not always been given sufficient consideration. Indeed, some measures have deserved opposition because of the potentially deleterious effect that they would have on the professions. I am aware of many cases where complaints against practitioners have been dismissed but have had a permanent effect on the doctor or dentist, sometimes leading to retirement from all aspects of their profession, despite the fact that they have done nothing wrong. However, this Bill should be welcomed. I know that the British Medical Association, the British Dental Association and most members of the professions support it. But it must be stressed that the number of incidents to which the Bill refers is extremely small.

Currently, I have the privilege to sit on the subcommittee of the Science and Technology Committee of your Lordships' House, under the chairmanship of the noble Lord, Lord Walton of Detchant, who is in his place this morning, which is to report on complementary medicine at the end of the year. In all the evidence that we have heard one aspect that has become increasingly evident is that complementary practitioners tend to have more time to spend with their patients. A longer consultation time leads to better communication, which improves the doctor/ patient relationship and minimises misunderstandings that may later lead to complaints and claims. I believe I am right in saying that the average NHS consultation with a GP lasts between seven and eight minutes. Inevitably, when one is under that kind of pressure communication is the first link in the chain to break.

In another place the Parliamentary Under-Secretary of State for Health said: the relationship between individual doctor and individual patient is built on trust. For that relationship of trust to work, GPs must be accountable for what they do".—[Official Report, Commons, 3/3/00; col. 695.] It is just not possible to build that relationship in the time that is now available to busy doctors in NHS practice.

At a time when there is such considerable strain on the NHS and great concern about its ability to cope with future healthcare needs, it is important that the Government recognise the increasing relevance of the contribution to healthcare made by pharmacists and pharmacies. I hope that in announcing the future of the NHS—which will no doubt be done within a few days of Parliament rising for the Summer Recess—the Government will act on the recommendations of the White Paper and initiate changes so that much of the day-to-day routine work of doctors' surgeries becomes the responsibility of practice nurses and pharmacists. I am told by Boots that 6 million people visit a pharmacy each day. What a wonderful opportunity to seek advice on the sore throat, cough or minor symptom that should not require the attention of a busy doctor. If more time is available to general practitioners it means that there is better communication, the establishment of a trusting relationship and less reason to complain. Doctors should not have to resort to premature retirement to avoid an investigation when in the majority of cases the complaint or misunderstanding is later proved to be invalid.

Finally and perhaps most importantly, it is essential that patients whose complaints against doctors are investigated by the ombudsman, whether or not those doctors are retired from the NHS, should not be permitted to use the procedure as a trial run for possible future litigation. It would be very easy to test the complaint with the commissioner at no cost and then, perhaps in response to some of the new-style advertising by some lawyers of no win, no fee contracts and a climate in which people are encouraged to complain, take the matter to the courts. The Minister in another place stressed the importance of being scrupulously fair to practitioners and providers, who could be affected by the proposals in the Bill. This would not be fair.

I have not mentioned dentistry. Can the Minister confirm which health service professions are included in the Bill and perhaps give some idea of the number of cases in each profession? With so many dental practitioners leaving the NHS or actively seeking to increase their private patient lists, a minor complaint, however trivial, whether or not it is investigated by the ombudsman, may be the final straw that prompts resignation from the NHS, which is something that the Department of Health seeks to prevent. I hope that the Minister can give these assurances and that amendments will not be necessary. I wish my noble friend Lady Hanham and her Bill every success.

11.35 a.m.

Lord Clement-Jones

My Lords, the noble Baroness, Lady Hanham, in this House and Sir Geoffrey Johnson Smith in the other place are to be congratulated on sponsoring this useful Bill. As the noble Baroness explained, it rectifies a clear anomaly in the powers of the Health Service Commissioner under the Health Service Commissioners Act 1993 whereby a complaint against a medical practitioner who has retired, whatever may be his motives for so doing, cannot be pursued. As the noble Baroness explained, the Health Service Commissioner went on record in his annual 1998–99 report to identify the problem. The current commissioner, Mr Michael Buckley, has expressed strong support for the Bill, as do we on these Benches. It also has extremely widespread support, not only from the Consumers' Association, which I believe was instrumental in putting forward this measure, but the BMA and Royal College of General Practitioners.

There are some who criticise the Bill for being too narrow in what it sets out to do. They suggest that it should be much broader and incorporate a wider set of reforms to the powers of the Health Service Commissioner. I believe that that is to misunderstand both the purpose and tactics behind the Bill. A huge number of developments are now taking place at trust, NHS regional and NHS national level which affect clinical governance and patient complaints but also, as we shall hear later in the day, the General Medical Council. We shall touch on those matters in our next debate when we discuss more broadly complaints relating to clinical performance.

This Bill is designed to remedy a specific loophole which may operate in only a specific number of cases but causes great injustice when it does. I hope, however, that the Minister is able to cast some light on the Government's intentions in regard to their review of the powers of the ombudsman and their attitude to reform which has been identified as desirable, such as extending the coverage of the Health Service Commissioner to private healthcare. Are they convinced that the current fairly cumbersome process which needs to be gone through by a complainant is satisfactory?

I should like to make it clear that, despite agreeing with much of what the noble Lord, Lord Colwyn, said, I am not convinced that currently we are in danger of over-regulation of the medical profession. I believe that we need better regulation to restore public confidence.

There may be many other amendments to be made in terms of complaints about clinical performance other than those contained in the Bill. However, we shall support this Bill in its present form. It has been improved by amendments in the Commons so that there is no indefinite liability. I hope that, as the noble Baroness has requested, noble Lords will allow this Bill a quick passage through the House.

11.38 a.m.

Earl Howe

My Lords, I congratulate my noble friend Lady Hanham who has introduced this Bill with her usual skill and clarity. There is little that I can add to what she said. This is a measure which deserves our support.

It is fortuitous, but perhaps appropriate, that my noble friend should have introduced her Bill on the day when we are to debate changes to the powers and procedures of the General Medical Council. Different as they are, what these two measures have in common is the need to ensure that patients and the public have confidence in the systems that underpin the accountability of the medical profession. It is the trust that exists between doctor and patient that is vital for the effective working of the NHS. Anything, however small, that erodes that trust should be addressed. I pay tribute not only to my noble friend, but also to my right honourable friend Sir Geoffrey Johnson Smith in another place who made it clear that the lacuna in the powers of the Health Service Commissioner should be tackled, and who initiated the Bill that we are considering today.

I have no doubt that this lacuna was unintended. It was the Health Service Commissioners (Amendment) Act 1996 which extended the remit and powers of the ombudsman to cover complaints made against GPs, family dentists, pharmacists and opticians, including complaints involving clinical judgment. That Act was very significant because it enabled the Health Service Commissioner to investigate complaints about any aspect of NHS treatment and services, not simply those provided by an NHS body such as a hospital trust.

Since then, legal advice has come forward which casts doubt on the ability of Sections 2A and 2B of the 1996 Act as worded to capture those individuals or organisations no longer providing NHS services at the time of the ombudsman's investigation. That flaw leads to unfairness. Not only is the complainant left feeling cheated, but there is a fundamental inequity between a retired hospital doctor, whose alleged actions can be investigated by the commissioner, and a retired GP, whose actions cannot be. Indeed, if we are serious about upholding the confidence of patients in the laws governing health professionals, it cannot be right to condone a situation in which a retired GP cannot only avoid investigation, but can also continue to practise as a locum or in the private sector.

My noble friend was right to stress that point. In whatever field—be it the police service, children's homes, care homes or the NHS—it is unacceptable that people should be able to retire in order to avoid investigation into their alleged wrongdoings. Patients need to know that if they feel that a doctor or the NHS has failed them in some way, they can complain about it and be sure that their complaint will be dealt with expeditiously and with the prospect of remedial action being taken as necessary.

I suggested that the Bill was all of a piece with the proposed changes to the GMC constitution and the plans being formulated by the GMC for the regular assessment and revalidation of doctors. It also dovetails neatly with the wider government agenda to introduce clinical governance into the NHS and with the Chief Medical Officer's proposals to identify and deal with that small number of doctors whose performance gives rise to criticism.

Some have argued that against that wider background, this Bill is something of an irrelevance. I disagree. Even after the systems of professional regulation have been strengthened, there will still be a role for the Health Service Commissioner as the final tier of the administrative complaints system in the NHS. At the very least, those complaints which might not constitute sufficient grounds for a referral to the GMC, or even for NHS disciplinary procedures, may nevertheless raise issues of clinical care that are important to individual patients or their families.

I want to touch on only one other issue and it was referred to by the noble Lord, Lord Clement-Jones. The Government have recently been reviewing the role of the ombudsman. I do not know how far they have gone with that review, but it would be helpful if the Minister could tell us whether the Government have any intention of reforming the powers or remit of the ombudsman, or any other part of the NHS complaints arrangements.

As my noble friend stated, the Bill is supported by a wide range of professional bodies, including the BMA, the BDA, and the Consumers' Association. I believe that we have a duty to give it our support and I hope that the Government will allow it a fair wind.

11.43 a.m.

The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath)

My Lords, I am grateful to all noble Lords who have taken part in the debate. It has been encouraging to see that your Lordships believe it right to close the loophole in the powers of the Health Service Commissioner.

I am particularly grateful to the noble Baroness, Lady Hanham, for taking the Bill through your Lordships' House. I am delighted that she is chair of a London trust and brings a great deal of experience to your Lordships' debates on the NHS.

As noble Lords have indicated, the provisions of the Bill will close a loophole, but we must see them in a wider context. We will, as the noble Earl said, be debating changes in the powers of the General Medical Council. We have clinical governance and a new determination to ensure that internal NHS disciplinary procedures are made more robust. But I agree with the noble Earl, Lord Howe, that however well we make those changes, there will always be a need for a Health Service Commissioner to act as a final guarantee to the public that their concerns can be adequately investigated.

It might be appropriate to respond to the questions I was asked about the review of the role of the Health Service Commissioner and that of people who carry out public services. A report was published in April which made many recommendations. I suggest that the three key issues were the creation of a college or commission of ombudsmen, which would incorporate the existing public sector ombudsmen and provide a "one-stop shop" for complainants; the abolition of the current MP filter for complaints to the Parliamentary Commissioner; and a range of other measures to enable the ombudsmen to work more flexibly and more closely with each other and with other organisations. A consultation paper on that report was published in June and responses have been requested by the end of September. The Government must then consider those responses and will announce their decisions.

The noble Baroness, Lady Hanham, clearly explained the key aims of the Bill and the reasons for the wording of Clauses 1 and 4 in particular. I do not believe that I need to cover that ground, but I want to comment on the government amendments which were moved in another place. Your Lordships will be aware that the Bill we are considering today has more to it than was originally submitted by the right honourable Member for Wealdon.

The first point relates to time limits. The Government have a responsibility not just to the patients who use the NHS but also to all those who work in it and provide services to NHS patients. I agree with the noble Lord, Lord Colwyn, that one of the key elements of any complaints process is that it must be fair to all players.

The proposals in the Bill as it was originally presented would have left the practitioners and providers affected by it subject to investigation by the Health Service Commissioner indefinitely, because of the commissioner's discretion to waive his general one-year limit on bringing complaints.

The Government believed that, although the fundamental aims of the Bill were laudable, permanent susceptibility to investigation was an unfair and unacceptable consequence. Therefore, practitioners and providers should be able to be reassured that, as in other spheres, there will come a time when their liability comes to an end.

Careful thought was given to the time limit. The key issue was how long after the event might the commissioner want to exercise his or her discretion. The commissioner's view was that three years would be a sensible compromise.

The other amendment made to the Bill related to the transitional provision. The Health Service Commissioners (Amendment) Act 1996 made some far-reaching changes to the commissioner's jurisdiction. It came into force on 1st April 1996 and had no retrospective effect on complaints which had already been turned down because they were out of jurisdiction at the time they were made.

That is clearly no more than accepted practice since amending legislation of this type is not generally retrospective. However, that was not made explicit in the Act and quite a large number of complainants contacted the Health Service Commissioner, when his jurisdiction became known, in an attempt either to have earlier complaints reopened or to make complaints about matters which pre-dated the extension of his remit.

I believe that it was reflected that it was a huge disappointment to those complainants to have their hopes and expectations raised only to be told that the commissioner could not help them after all. Of course, we are not talking about anything like the same volume of cases in relation to this Bill. However, I believe that it was right to take the opportunity to avoid the risk of that disappointment occurring again. That is why the clause was inserted into the Bill.

I turn to the questions asked by the noble Lord, Lord Colwyn, in his wide-ranging speech. I confirm that the Bill covers the four groups of family health service practitioners: dentists, pharmacists, opticians and GPs. I understand that when the Health Service Commissioner considered these matters some time ago, he found one particular case relating to a dentist which occurred since 1997. I believe that that confirms that dentists come fully into these considerations.

I listened with great interest to the noble Lord's more general points regarding his concern about the pressures on professionals in the health service, both in terms of workload and in terms of a series of regulatory mechanisms that have been and are being put into place. I fully recognise the hard work and commitment of the overwhelming majority of professionals in the National Health Service. Indeed, if one were asked to highlight the main achievement of the NHS, it would surely be the high quality of professional people who give such enormous commitment to the service.

I accept that some of the changes that are being made place an extra burden on those professionals. However, as the noble Earl, Lord Howe, said, I believe that we must balance clearly the interest of professionals alongside that of the public. I believe that we have that balance right and, of course, the overwhelming majority of professionals are well aware of issues relating to public interest.

With regard to the noble Lord's question about the pressures on those professionals, I was glad that he mentioned the NHS national plan. There can be little doubt that a great deal of the extra resources given I o the NHS for the next four years will need to be spent on extra staff in order to relieve burdens and develop services. I also believe that we should examine the current working of those professionals to see whether the boundaries between them can be altered. We need to ensure that the highly qualified professionals about whom the noble Lord spoke are able to focus on the most important and serious matters. It may be possible for other staff to take on some of those burdens.

I do not believe that there is a need for me to speak further. This is an excellent Bill and I commend it to the House.

11.53 a.m.

Baroness Hanham

My Lords, I thank my noble friend Lord Colwyn for taking part in the debate. I hope that when we finish this morning he will not feel a compulsion to rush off to table an amendment. I also thank the members of the three Front Benches who have given the Bill their support.

It is as inescapable here as it was in the other place that an amendment such as this, which I strove to say—and which I believe everyone agrees—is on a very narrow subject, should generate a wider debate on the health service. I do not believe that it is possible to mention the health service without everyone trying to ladle in other issues.

In closing, I want to concentrate again on the fact that this is, and is acknowledged to be, a very narrow point which affects a very small number of people. I believe that I would be right in saying to my noble friend Lord Colwyn that the dental profession has figured very little in this matter and that in the past year there were no complaints at all against dentists. Indeed, I believe that there were probably very few complaints which would have come under this issue relating to general practitioners. None the less, when the ombudsman himself identifies that there is something with which he cannot deal, it seemed to my honourable friend Sir Geoffrey Johnson Smith and to me proper that it should be dealt with and put right.

Therefore, again, I ask noble Lords to give the Bill a fair wind and, in doing so, to give it also a Second Reading. I commend the Bill.

On Question, Bill read a second time, and committed to a Committee of the Whole House.