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Session 2001- 02
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Standing Committee Debates
NHS Reform and Health Care Professions Bill

NHS Reform and Health Care Professions Bill

Standing Committee A

Thursday 13 December 2001


[Mr. Alan Hurst in the Chair]

NHS Reform and Health Care Professions Bill

Clause 26

Complaints about regulatory bodies

Amendment proposed [11 December]: No. 239, in page 31, line 15, to leave out paragraph (a)—[Mr. Heald.]

9.30 am

Question again proposed, That the amendment be made.

The Chairman: I remind the Committee that with this we are taking the following amendments: No. 240, in page 31, line 16, leave out 'must (or need not),' and insert 'may'.

No. 241, in page 31, line 18, leave out paragraph (c).

No. 242, in page 31, line 19, leave out paragraph (d).

No. 243, in page 31, line 20, leave out paragraph (e).

No. 244, in page 31, line 27, leave out paragraph (i).

No. 245, in page 31, line 40, at end add—

    '(5) The Council may adopt such procedure as it thinks fit to follow in investigating complaints.'.

No. 246, in page 31, line 40, at end add—

    '(6) The power to make regulations in this section shall be exercisable by statutory instrument.

    (7) A statutory instrument containing regulations under this section shall not be made unless a draft has been laid and approved by a resolution of each House of Parliament.'.

Mr. Oliver Heald (North-East Hertfordshire): On a point of order, Mr. Hurst. As we enter the last lap of the Bill, I seek your guidance. We have missed debates on clause 8 on the funding of primary care trusts, clause 20 on the abolition of community councils, clause 21 on the joint working with the prison service, a number of amendments, a new clause and so on. Can the Programming Sub-Committee influence, in any way, the amount of time available on Report for consideration of those matters? There is already a programming motion that allows for a day on Report and Third Reading, but that may not be enough. Because of the way in which programming works—undesirable as that is—we somehow never have the opportunity to debate important matters.

The Chairman: It is open to the Programming Sub-Committee to consider matters further and, if it so wishes, I would be in a position to receive such a request.

Laura Moffatt (Crawley): The matters under consideration are of enormous importance and concern to regulatory bodies. It is my sincere hope that due consideration will be given to the procedure referred to in amendment No. 246 because it is incredibly important. As I said earlier, it is important that there should be confidence in the system.

Mr. Burns: I listened with interest to the hon. Lady, and it sounds as if a Government concession is on its way. We cannot anticipate the Minister's speech, but to what extent is the concern that she expresses hers, or has it come from the Minister's channels?

Laura Moffatt: It may be of interest to Opposition Members to know that I met those involved in the matter, so it does concern me.

Mr. Burns: The hon. Lady has also had deep discussions with the Minister's parliamentary private secretary during the past three minutes.

The Chairman: Order. We are clearly ranging beyond points of order into debate.

Mr. Hutton: On Tuesday, we had a good debate on clause 26 and its purpose, and I am grateful to Opposition Members and to my hon. Friend the Member for Crawley for participating in that useful debate.

We need to refresh ourselves on the purpose of clause 26. The Secretary of State will have the power to make regulations that will allow the council to take on a complaints or ombudsman-style function in relation to the regulatory bodies over which it has jurisdiction. Hon. Members will be aware that existing ombudsmen have no jurisdiction over the regulatory bodies. At present, the Parliamentary Commissioner for Administration and other ombudsman confine their activity to public bodies or those bodies that are funded by public funds. Neither of those groups includes the General Medical Council, General Dental Council or other bodies under debate here.

The question that we need to consider as a Committee, and ultimately as a House, is whether there should be, for the first time, a proper ombudsman or complaints-type function in relation to the work of the eight regulatory bodies. That is essentially the issue that we have to consider.

It is true to say, and it is important that I make it clear, that when we consulted on the question in the summer, the regulatory bodies expressed concerns about a complaints or ombudsman-style approach to dealing with these issues. It is perfectly fair and proper for their concerns to be raised in the way that they have been. That is, after all, why we sought their opinion.

However, there is a strong case to be made for such a function in relation to the work of the regulatory bodies. The question is who should exercise that function and how should such a scheme be brought into existence. It will be clear to any hon. Member who has considered the Bill that, rather than setting that out on the face of the Bill a fully operative complaints or ombudsman-type scheme, we have chosen, in clause 26, to give the Secretary of State the power to make regulations to set that up, and the scheme would then be administered by the Council for the Regulation of Health Care Professionals.

We have not yet decided whether that should be a function of the council, but we do want the option at a later point, if that is the decision that we reach. There will need to be further consultation with the regulatory bodies, and the council itself, once it is established. We should at least have the opportunity of setting up a scheme to be operated in these circumstances.

That is some of the background and the context of the scheme. It is ultimately for the House to decide whether the eight regulatory bodies should be subject to a complaints or ombudsman-style investigation procedure. I firmly believe that they should. The question is how, when and where. Those are obviously issues that we will turn at a later stage.

However, today we are discussing amendments Nos. 239 to 246. I have had the benefit of reflecting over the last couple of days on many of the points that have been made by Opposition Members and now by my hon. Friend the Member for Crawley. I will return to amendment No. 246 in a moment.

In relation to substantive amendments Nos. 239 to 245, there is a conflict and a contradiction at the heart of the hon. Gentleman's argument. The conflict is that his amendment, as he knows, relates to clause 26(2) and does not affect the Secretary of State's power to make regulations under clause 26(1). The list of issues covered in clause 26(2) is clearly not, on the face of the Bill, exhaustive. It is simply illustrative of the sort of areas that could be covered by the Secretary of State if he chose to make regulations under clause 26(1). Deleting the paragraphs in 26(2) in the way that the hon. Gentleman suggests would not affect the Secretary of State's power to make regulations in those particular areas.

Mr. Heald: The Minister is absolutely right. The purpose of these probing amendments is to find out what he has in mind in relation to each of the items that it is suggested should be deleted. The overall position would not be affected; the amendments seek to find out what he has in mind so that we can examine the proposal.

Mr. Hutton: In that case will the hon. Gentleman confirm whether amendment No. 246 is a probing amendment?

Mr. Heald: No, it is not. I understood the Minister to say that he was dealing with all the amendments apart from No. 246. That was how he prefaced his remarks. My remarks are intended to deal with all the amendments up to No. 245, but not No. 246.

Mr. Hutton: I am still a little confused about what is a probing amendment and what is not. Is amendment No. 245 a probing amendment?

Mr. Heald: Yes. The amendments up to No. 246 are probing, although, obviously in the light of the Minister's answers, one might decide that the clause stand part debate should be a more substantive vote.

Mr. Hutton: I am not sure whether there will be a clause stand part debate, but that is obviously a matter for the Chairman.

Mr. Heald: That might be affected by the Minister's answer.

Mr. Hutton: In that case I shall cut short my remarks about the substantive features of the amendments, if they are probing.

There is essentially a conflict between what is proposed and what the effect of that would be. Amendment No. 245 would create a duality between the Secretary of State still having his powers in all of these areas, and the council having a similar jurisdiction to the council to lay down procedures in precisely the same areas. There would be a clear conflict between what the Secretary of State could do and what the council could do, and that would obviously be extremely undesirable.

I accept that the amendments are broadly probing amendments.

Mr. Heald: Not amendment No. 246.

Mr. Hutton: I understand that, but amendments Nos. 239 to 245 are probing amendments. On Tuesday the hon. Gentleman said that such matters should not be regulated by the Secretary of State at all.

If we were to accept amendments Nos. 239 to 245, we would find ourselves in the strange position of having taken away from the House the opportunity to scrutinise, whether by the negative or affirmative resolution procedure, some areas of substantial importance in relation to how any future complaints or ombudsman-style scheme should operate under clause 26. Parliament would be left with debating paragraphs (b), (f), (g), (h) and (j)—procedural matters that in the normal run of things would not be proper subject matter for affirmative resolutions in both Houses of Parliament.

The amendments are potentially contradictory and would provide less effective parliamentary scrutiny, whether under the negative or affirmative resolution procedure, than the hon. Gentleman would have intended.

Let me deal with some of the points that the hon. Gentleman wanted me to clarify. The kinds of matters that the complaints system will cover include avoidable delay, faulty procedures or failing to follow correct procedures, any perceived unfairness, bias or prejudice, giving advice that is misleading or inadequate, refusal on the part of the regulatory body to respond quickly and reasonably to questions that have been asked, discourtesy to complainants and the regulatory bodies and failure properly to apologise for errors that have been acknowledged. Those are typically the subject matter of complaints to ombudsmen, and they are what we have in mind in relation to any future scheme in this context.

Amendment No. 245 would allow the council to adopt such procedure as it thinks fit. We envisage that the regulations will permit the council to decide on its procedures, but some matters should properly be specified in regulations, such as ensuring that the regulatory body that was complained against had an opportunity to respond.

Amendments Nos. 239 and 240 concern who is entitled to complain and what sort of complaints the council can deal with. As the hon. Member for West Chelmsford (Mr. Burns) said on Tuesday, we would not want to leave the council completely unable to filter the complaints that it receives. He referred to the constituent from hell—a graphic, but fair example. Such issues should properly be dealt with in some procedural form, whether by the council or, as we propose, by the Secretary of State through regulations. Like all the other areas in which regulations may be made under the clause, it will be a matter for the Secretary of State, who is accountable to this House, to decide in co-operation with the council.

Equally, some matters will properly be excluded from investigation by the council—for example, cases that are currently before the health committee of a regulatory body or a fitness to practice committee. Amendment No. 241 would remove the power of the Secretary of State to make regulations about such excluded areas, which would be a mistake. They should be established clearly in advance so that people know precisely where they stand—both the complainant and the body, in this case the council, that could be charged with the responsibility of dealing with the complaint.

Amendments Nos. 242 and 243 would exclude from regulations the procedures to be followed by those making a complaint and by the council in its investigation. It is perfectly proper to include arrangements for regulations for those. Some concern was expressed on Tuesday about provisions concerning payment in relation to investigations. Amendment No. 244 would make it less clear that the Secretary of State could make regulations about such payments. As we discussed then, and I confirm today, it will be possible for the council, if it chooses, to use the services of private investigators, although an alternative will be for it to employ its own investigative staff. That will be for the council to decide, but we do not expect it to use private investigators frequently.

9.45 am

Amendment No. 245 would allow the council to follow whatever procedure it thought best in investigating complaints. However, only the Secretary of State can make regulations. I believe that, for the fair running of the system and public confidence in it, those regulations should be clearly laid down.

Another concern that has been expressed about paragraph (a) is the definition of who can make complaints. It is a characteristic of all similar schemes operated in this country to have a threshold that a complainant must establish in order to make a proper, valid complaint. That is often that someone has been harmed or affected by the decision of the body that is the subject of the complaint. Such a definition is, broadly, the territory in which we want to specify who can make a complaint. The hon. Member for West Chelmsford made effective points about the need for a filter. That is broadly what we intend the provisions to cover, as I said earlier.

The most central argument today is not about the merits of having an ombudsman or complaints procedure, but that is a substantial issue. My sense is that the Committee broadly favours, at least in principle, having such a complaints or ombudsman-style arrangement for the regulatory bodies. I do not think that the hon. Gentleman opposes in principle the idea of a complaints procedure.

We will have to return to that issue later, but the more substantive issue raised by the amendments is who, ultimately, should scrutinise or take responsibility for the complaints procedure, establish it and clarify the limits and jurisdictions of the ombudsman-style body—in this case, the council. The Bill proposes that the Secretary of State should make regulation for that under, in this place, the negative resolution procedure. That concerns Committee members on both sides as well as the regulatory bodies.

There is quite an argument to be had about that. Having reflected carefully on what has been said, I add a few observations. The full-blown ombudsman-style arrangement that we are proposing is an unprecedented scheme. We propose to establish it by regulations, which is not, I think, objectionable per se, but those regulations will be made by the negative resolution procedure. The full detail of the scheme will be dealt with in the way in which we usually deal with such regulations: there will be no guarantee of a debate and no certainty of a vote on the Floor.

Given the substantive nature of what we are discussing, I have given the matter careful consideration and taken advice from the parliamentary counsel and others about whether this is the right way to set up such an important complaints scheme. I have also carefully examined whether we could accept amendment No. 246. Sadly we cannot accept that particular amendment, but I have thought further about the issues and I accept in principle that this important matter lends itself to the affirmative, rather than the negative, resolution procedure. I am grateful to Committee members on both sides for making those points so effectively.


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Prepared 13 December 2001