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Health Service Commissioners (Amendment) Bill

8.34 p.m.

Baroness Cumberlege: My Lords, I beg to move that the Bill be now read a second time.

Most commercial firms, companies or organisations--both private or public--are diligent when it comes to complaints made about their products or services. They set up special sections, are imaginative in redressing wrongs and are quick to offer

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compensation in terms of refunds or exchange of goods. In order to stay in business, they know that they have to cherish customers and care for clients. A speedy response when things go wrong is just as important as a new sale. If that is true of the competitive world, how much more important when the customer has little choice but is reliant on a monopoly provider. How much more important when the commodity is irreplaceable--someone's health, well-being or life--perhaps someone you love, perhaps even yourself.

In government, and in the NHS, we are very conscious of this, and, with initiatives to strengthen the influence and power of patients, we wish to strengthen the NHS complaints procedures.

The Bill before your Lordships' House will amend the Health Service Commissioners Act of 1993. It removes the statutory barriers which prevent the ombudsman from investigating complaints concerning family health services and clinical judgment exercised by all clinicians in the field. We are not seeking to make any radical changes to the nature of the commissioner's jurisdiction. What we are doing is to widen it, so that, if Parliament approves the measure, patients and their relatives will be able to complain to the ombudsman about all aspects of care and treatment provided by the NHS.

The proposed extension of the ombudsman's jurisdiction was recommended by the Select Committee for the Parliamentary Commissioner for Administration in its first and sixth reports of the 1993-94 Session. My right honourable friend Mrs Bottomley, who was then Secretary of State for Health, also established an independent committee under the chairmanship of Professor Alan Wilson to review the complaints system. Following extensive consultation, the Government announced their acceptance of the main recommendations in March 1995, and at the same time responded to the parallel recommendations made by the Select Committee.

The proposal to extend the ombudsman's jurisdiction, and the other recommendations made by the committee, were widely welcomed, as was the Government's intention to put them into effect. There was wide agreement that the new procedures would improve the way that complaints are handled at every level.

The recommendations were made against a background of increasing public dissatisfaction with the current arrangements. Many people found that the existing procedures simply did not meet their needs. They wanted to receive a speedy explanation of what had happened and, where appropriate, an apology and an assurance that the same mistake would not happen again. They were particularly frustrated by the current limits on the commissioner's jurisdiction. For instance, people found that he could investigate their complaint that a hospital doctor failed to communicate with them but not complaints about carelessness resulting in a wrong diagnosis. Neither could he investigate any aspect of their care by a GP.

Very often people react to a complaint by being negative and defensive. It is a natural reaction, but handling complaints responsibly and sensitively is a service which people expect from a quality organisation.

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If complaints are investigated fully and objectively without automatically finding fault with staff, then valuable information can be gained about how to improve services to others. That is why we want to see a new system introduced.

The new procedure will have three tiers. This Bill deals only with the third tier. The first two tiers will be introduced through regulations and directions. The first tier will be called Local Resolution. It will involve the local provider seeking to resolve the problem directly with the complainant. Where possible, the provider will do that through a speedy and effective informal approach. Where necessary, Local Resolution will involve a more formal investigation or an attempt at conciliation. If the complainant remains dissatisfied, he may move to the second tier and ask a non-executive director of the trust, health authority or health board involved--who will be called a convener--to decide whether a three-person independent review panel should be set up to review the complaint. The panel will have access to independent professional advice on clinical issues. If both those fail, the complainant may activate the third tier and approach the ombudsman, who is completely independent both of the health service and of government.

If the Bill meets with your Lordships' approval and is passed by Parliament, we hope that its provisions can be brought into force on 1st April 1996, at the same time as the first and second tiers are implemented through subordinate legislation. We want all patients to have access to the third tier of the reformed complaints system as soon as possible.

The detailed provisions of the Bill are as follows. Clauses 1 and 2 add those professionals who were previously the responsibility of family health services authorities; that is, GPs, dentists, pharmacists and providers of NHS ophthalmic services to the list of those whom the Health Service Commissioner can investigate. These clauses also bring people in the independent sector who provide services to NHS patients explicitly within the commissioner's remit. Independent providers include private companies, independent professionals and voluntary organisations. The clauses set out the ombudsman's remit in respect of the investigation of complaints about family health service practitioners and independent providers.

Clause 3 brings Schedule 1, which deals with supplementary and consequential provisions relating to family health service and independent providers, into effect. Clause 4 brings the Mental Welfare Commission for Scotland within the commissioner's jurisdiction and specifies certain functions which are excluded from investigation. This restores the position in Scotland to that in England and Wales where the Mental Health Act Commission is already within the commissioner's jurisdiction. The functions of the Mental Welfare Commission relating to the review and discharge of detained patients, which in England and Wales are carried out by the mental health review tribunals, will remain outside the commissioner's jurisdiction.

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Clause 5 ensures that the first two tiers of the new procedures are exhausted before the commissioner can investigate a complaint but allows him discretion to investigate where he considers it unreasonable for the complainant to exhaust all other procedures. The new complaints system provides an opportunity for independent review within the health service. It would normally be reasonable for a complainant to have tried to resolve his complaint through this procedure before he refers it to the ombudsman. There may, however, be circumstances in which this would be unreasonable; for example, where there has been excessive delay in considering the complaint locally.

Clause 6 removes the statutory block which prevents the commissioner investigating complaints concerning clinical judgment. The 1993 Act prevents the commissioner questioning the merits of a decision taken without maladministration. In the past there had to be evidence of maladministration in a decision taken by a clinician in order for the commissioner to be able to uphold a complaint. For instance, he could investigate and uphold complaints about poor communication or poor record keeping but not about poor diagnosis. The clause allows for complaints to be investigated about decisions which arise solely as a result of clinical judgment.

In considering whether or not to uphold such a complaint the commissioner will need to take account of clinical advice; for example, as to whether the judgment was of an acceptable professional standard. The commissioner has made available to your Lordships a paper entitled Responsibilities of the Health Service Commissioner setting out how he proposes to exercise his new jurisdiction should Parliament approve the Bill. This paper sets out in some detail how he proposes to approach questions about clinical judgment, including the principles which he is minded to follow in seeking professional advice, and other issues arising from the provisions in the Bill. I commend the commissioner's paper to your Lordships' House.

Clause 7 removes the statutory barrier which prevents the commissioner investigating complaints about family health services. It also ensures that he cannot investigate action taken by a health authority or health board which is investigating an alleged breach of terms of service. This is in line with the existing provision in Section 7 of the 1993 Act which prevents the commissioner investigating personnel or disciplinary matters.

Clause 8 amends the provision in the 1993 Act which provides that the commissioner shall not investigate action taken in personnel matters to include service under the National Health Service and Community Care Act 1990. This is simply a tidying up measure. Clause 8 also ensures that the commissioner can investigate action taken by a health service employer when operating a complaints procedure. The general public can complain to the commissioner about the way a complaint has been dealt with. Clause 8 ensures that NHS staff, those professionals contracted to work in the NHS, and those who work in the independent sector providing services for NHS patients, are given the same right in the interest of equity. Health service employees would, by virtue of the provisions in Clause 5, normally

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need to invoke and exhaust established grievance procedures for dealing with such complaints before the ombudsman could investigate.

Clause 9 abolishes the requirement that a health authority, board or trust be given an opportunity to investigate a complaint. This is overtaken by the provisions in Clause 5 about the exhaustion of the NHS complaints procedures. Clause 10 requires the commissioner to send a report of an investigation to the relevant health authority, board or trust. This is simply to take account of the fact that health service bodies can be reconfigured during the period of an investigation. Clause 10 also fulfils the Government's commitment to implement certain recommendations made by the ombudsman's Select Committee. It removes the requirement to inform the relevant health authority, board or trust that the commissioner has decided not to investigate a complaint. It also requires the commissioner to lay his special, annual and other reports directly before Parliament rather than via the Secretary of State.

Clause 11 extends the exemption from giving evidence in proceedings to the commissioner's advisers. This is necessary because of the need to obtain advice from external advisers once the commissioner's remit is extended to include clinical judgment. The clause also allows the commissioner at his discretion to disclose information to the appropriate regulatory or health service body or employer where he considers it necessary for the protection of the health and safety of patients. At present any information that he discovers during the course of an investigation may not be passed to another person other than for the purposes of the investigation. Therefore if during the course of an investigation the commissioner discovers information which does not need to be disclosed in his report he may not disclose it to any person outside his own office. Clause 11 allows him to disclose information if it indicates that a person constitutes a threat to the health or safety of patients. In the interest of natural justice the clause requires the commissioner to inform the person about whom he has disclosed such information.

Clause 12 makes financial provision for the Bill. The provisions increase expenditure by the Health Service Commissioner's office under the 1993 Act. The cost is to be met by transfer from the relevant votes of the Department of Health and the Welsh and Scottish Offices. The costs arising from the Bill will be met from existing resources. Clause 13 gives effect to Schedule 2 which deals with repeals to the 1993 Act. Clause 14 makes provision for any Act arising from the Bill to be brought into force by means of commencement orders made by statutory instruments and for different parts of the Act to come into force at different times in different parts of the United Kingdom.

Clauses 15 and 16 deal with extent and citation respectively. The Bill only extends to Northern Ireland the provisions which amend the 1993 Act and which extend to Northern Ireland. These relate to the commissioner's procedures. The Bill has two schedules. Schedule 1 deals with amendments to the 1993 Act which are supplementary and consequential to the main

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provisions of the Bill on family health service and independent providers. Schedule 2 sets out the repeals to the 1993 Act provided for in the Bill.

At the risk of disappointing the House when I am sure your Lordships are keen to know the full and detailed explanation of both schedules, I shall resist the temptation and only mention that there is a new provision in paragraph 2 to Schedule 1 which enables the commissioner to investigate contractual or commercial transactions by GP fundholders which relate to the purchase of services for NHS patients from independent providers.

I have tried to give a thorough and businesslike review of the Bill's detailed provisions. In conclusion, I would just like to say that generally complaints are welcomed. They are in any walk of life a way of maintaining standards and when properly dealt with can prevent litigation. We have to be conscious that the NHS can be destroyed by litigation or by the practice of unreasonable defensive medicine. People's expectations of perfect results grow daily but they cannot always be delivered. There is a fine line between negligence and reasonable expectation. We have doctors, nurses and scientists of extraordinary talent with worldwide reputations, but they cannot be everywhere. Medicine is an inexact science because every patient is different and every treatment is unique to each individual. We must all be aware of medicine's limitations and try to put the needs of many in front of our own; that is the only way that the NHS can work for the common good. I hope that the Bill will help some people who might otherwise have felt obliged to take legal proceedings in order to find out what happened and, where appropriate, obtain an apology and an assurance that things will be put right. We hope that the Bill strikes the right balance and is fair to all sides. I commend it to the House. I beg to move.

Moved, That the Bill be now read a second time.--(Baroness Cumberlege.)

8.50 p.m.

Baroness Jay of Paddington: My Lords, I thank the Minister for introducing this short but somewhat complex Bill with great clarity. After all, clarity is one of the primary requirements of any successful complaints system, particularly one which deals with such a vast and labyrinthine organisation as the NHS.

Complaints about the NHS are rising; they were up by nearly 30 per cent. during the past year. At the same time, users of the health service are finding that in the fragmented structure of the internal market it is becoming difficult to pin down responsibility. Patients now report being passed from place to place and person to person across the purchaser/provider divide as they seek any redress for what may seem to them a rather simple complaint.

We on these Benches, therefore, welcome the Bill, which seeks to extend the role of the health ombudsman. Together with the proposals of the Wilson Report which the Minister has explained the Government have accepted and are implementing, it will unify and simplify the entire health service complaints procedure.

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It is one NHS reform which is long overdue. The current situation is an unfriendly maze and was summarised critically, but I suspect correctly, in the 1993 report of the Select Committee for the Parliamentary Commissioner for Administration, which stated:


    "The complaints system in the NHS seems designed for the convenience of providers of the service rather than complainants".

The Bill is certainly an important step towards increasing the rights of complainants and patients. At the same time, it should be seen as part of a general trend towards trying to improve the overall quality of service, to increase internal medical audit and to raise the standards of professional care. I see the Bill as part of the move that went with the Bill we discussed earlier in the year, which is now the Medical (Professional Performance) Act passed by your Lordships' House last Autumn.

I was pleased that in the revised guidance of the General Medical Council, which was published in October 1995 in the wake of the passage of that Act, great emphasis was laid on the duties of a doctor to respect, consult and inform patients. That guidance is an essential part of what the Royal College of Nursing has called a culture of change. It is a culture of change in the health service which seeks to involve service users as equal partners in improvements. In order to be effective a complaints system has to be seen to be open and fair. Patients must not feel that managers or professionals are being unsympathetic or placing unnecessary bureaucratic obstacles in the path of what they see as a legitimate complaint. Equally, service providers must work in a culture where criticism can be viewed as constructive and where individual professionals are not afraid that a complaint will automatically mean that they are personally exposed and victimised. If we can get this right we can, as the Minister suggested, avoid the totally unhealthy atmosphere that exists, for example, in the United States of America where the shadow of legal malpractice suits seems to hang over every medical consultation.

The Bill amends the powers of the Health Service Commissioner so that he can consider complaints from the public in three major areas of NHS activity which have been previously excluded. They are the matters relating to the clinical judgment of doctors, nurses and other clinical professionals; complaints about family health service practitioners; and complaints about independent providers. We on these Benches welcome all these changes. It is a considerable extension of the ombudsman's powers which it is estimated will lead to an enormous increase in the volume of his work. As the Minister explained, further resources will be provided but there is concern about the level of those resources and the ambitious timetable which is designed to put all the new complaint systems in place by next April.

Today the noble Baroness was confident, and during the passage of the Bill in another place other Ministers were equally confident, that that could be successfully achieved. But it will be a matter of only a number of weeks if the Bill passes through your Lordships' House on schedule. I must tell your Lordships that that confidence is not universally echoed in the field. For

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example, at a large meeting of local trusts and health authority chairmen in which I was involved last week there was surprising unawareness and lack of information about the details of this major innovation, which will hit people in the field at the same time as all the other organisational changes which will take place in April.

At the GP level, the BMA is emphasising that a considerable amount of GP and staff time will be necessary to be used in training, setting up, operating and monitoring practice-based procedures. The General Medical Services Committee of the BMA is, I understand, advising GPs to bid for additional practice staff funding to cover the staff time that will be spent in dealing with these procedures. The BMA has rightly challenged the claim made on 19th December in Committee in another place by the Parliamentary Secretary of State for Health that:


    "the total annual cost arising from the expanded legislation will be £100,000 to doctors as a whole and £10 per practice".
The BMA states that it is quite sure that this estimate of £10 per practice is ridiculously low.

I hope, therefore, that having brought forward these proposals, perhaps rather belatedly, the Government have left sufficient time for thorough staff training and systems testing and will provide adequate additional resources. It would be a great pity if these useful reforms themselves became the subjects of complaints because they were misunderstood or inadequately implemented. I hope that the Minister will be able to reassure your Lordships further on that point when she replies.

The extension of the powers of the Health Service Commissioner which have caused most discussion, in particular among medical professionals, are those in Clause 6. That brings into his jurisdiction complaints about clinical judgment. Mr. Reid, the ombudsman, states that,


    "it would be helpful if staff in all professions look at complaints not as a personal affront but as a valuable contribution to audit and to improvements in service".
He is, of course, quite right but the delicate supremacy of clinical judgment is near to the heart of medical ethics and this new power will be extremely difficult to enforce legitimately and fairly. It is an area in which it is almost impossible to include precise guidance in primary legislation. I am sure that the noble Baroness will remember the debates that we had during the passage of the Medical (Professional Performance) Bill about how to define in that context adequate or inadequate professional performance. Precisely the same kind of difficulties seem to arise here. After all, clinical judgment necessarily involves personal, individual decisions which may well be taken by health professionals at times of crisis or stress both for the patient and the professional involved.

If the result of a clinical judgment leads to a complaint it may well be because in what were considered to be the best interests of the patient a doctor or nurse took a risk or stepped outside normal practice and did not succeed. It is extraordinarily difficult to see how one can second guess those kind of situations, particularly many months after what may have been a

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dangerous emergency. As the noble Baroness remarked in her opening speech, the health ombudsman has published an extremely helpful paper which includes in paragraphs 42 to 49 his description of how he will deal with the issues of clinical complaints. On the other hand, he does not actually address the essential point about how these issues may be contained in any form of precise guidance to the profession.

In raising these issues I must assure your Lordships that I do not in any way oppose the proposed extension of the powers to clinical judgment, but those who are investigated must be properly judged by their professional peers with scrupulous fairness. I therefore welcome the proposals which the ombudsman has already published about the clinical advice he will seek in these new cases. The RCN has noted the importance of including the voice of nurses in that advice and is rightly pleased that the plan is to recruit nursing staff, and indeed midwives and health visitors, to the ombudsman's office.

I understand that the BMA is already discussing with that office a range of issues about the medical assessors who will be empowered to investigate clinical complaints and, importantly, the level of proof needed before a complaint is upheld. The BMA is also concerned in raising the issue of confidentiality of a complainant's medical information if a clinical judgment case is to be thoroughly investigated. It is important that at all stages of any procedure the complainant must be informed as to whom his or her personal medical information is being disclosed; and a procedure should be in place for the complainant to be invited to give valid consent for that information to be disclosed.

Perhaps when the Minister replies she could give your Lordships a progress report about how the discussions with the BMA on these and other issues are progressing.

Another potential problem is the difficulty of drawing a clear line between clinical and management judgements. For example, if we take recent headline-making cases where a joint clinical/managerial decision has been taken to transfer a critically ill patient to hospital B because of a lack of intensive care beds in hospital A it is, at least in common sense terms, hard to insist that the decision is taken either primarily on clinical grounds or primarily on managerial grounds. Equally, if a doctor judges that a diagnosis does not require using an MRI scanner, in part at least because the local scanner is unavailable--as happened in another rather notorious recent case--is he clinically culpable or is the complaint more properly addressed to the health service administration? It seems likely that many complaints may be in equally murky territory and it is not immediately clear what impact the blurring of those boundaries will have on the ombudsman's procedures.

There may be a case for instituting a new power to investigate management judgement as well as clinical judgement; or perhaps the Department of Health and the health ombudsman think that that automatically falls into the category of maladministration. It is important that those distinctions as well as those overlaps are made clear, but as yet I do not think that that is totally covered by the proposals.

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As the Minister said, Clauses 1 and 2 add family health service providers and independent providers to the list of those whom the ombudsman may investigate. The addition of family health services is welcome, particularly since the abolition of the old FHSA procedures from April make it vital to underpin local procedures for complaints against GPs, dentists, pharmacists, and so on. I echo the Minister in saying that I hope that under the new system most of those complaints will be locally resolved.

The inclusion of independent providers is important. As your Lordships know, local health purchasing agencies increasingly use private providers for services like nursing homes and to clear waiting lists for surgical procedures. However, as I understand it, independent providers will not be involved in the local initial stage of the new complaints procedure. But NHS patients being treated in the independent sector may take their case to the ombudsman. It seems on the face of it unfortunate that the speedy local resolution of complaints which will now be offered in the first two stages of the new system to those treated in NHS facilities will not be offered to those treated by independent providers.

Paragraph 60 of the ombudsman's document states that independent providers will be required under their contracts with health service bodies or GP fundholders to have in-house arrangements for investigating complaints equivalent to those of health bodies' local resolution procedures. But it does not say how those will be instituted, what their legal force will be, or indeed how any organisation which does not institute those procedures can be policed. Again, perhaps the Minister will help us in her summing up by giving further guidance on that.

As the noble Baroness, Lady Cumberlege, said in introducing the Bill, it represents only one, although a significant, part of the general reform of the NHS complaints procedure. I regret that your Lordships have not had the opportunity to consider the new system as a whole and perhaps explicitly to consider the interrelation of the new complaints procedures before us together with the Medical (Professional Performance) Bill. They are all part of an overall attempt to streamline and clarify the organisation and at the same time to raise overall levels of quality.

Those are laudable aims which we support. We shall return to our detailed concerns about some aspects of specific provisions of the Bill at Committee stage. There is no better summary of our position than that of the health service ombudsman himself who, in his last report to Parliament, said:


    "Aspirations about more effective complaints handling are hot air. They need now to be matched by performance".

9.6 p.m.

Baroness Robson of Kiddington: My Lords, I, too, thank the Minister for so clearly and succinctly introducing the Bill, particularly in view of the marathon afternoon session that she has had in dealing with the Community Care (Direct Payments) Bill. It has been a hard day's work.

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I agree to a large extent with what the noble Baroness, Lady Jay, said. We on these Benches welcome the Bill. It is about the right of patients to have a clear-cut and easily understood complaints procedure which makes the NHS responsive, accessible and, above all, accountable to the people who use the service. However, as the noble Baroness, Lady Jay, said, in legislating we must ensure that the Bill also creates a fair system for the professionals involved in the service. That is important if the system is to work.

The extension of the health commissioner's jurisdiction to cover family health service providers, dentists, ophthalmic providers and independent care providers who care for NHS patients under contact with health authorities and health boards, as well as GP fundholders, is welcome. One might almost say that it is long overdue. The streamlined three-tier system for local resolution of a complaint, or the appointment if necessary of a three-person independent panel, should enable most complaints to be resolved locally; but, most importantly, it leaves the complainant with the right to take his or her complaint to the ombudsman if not satisfied with the answer. The overriding requirement for the new procedure to be a success is for there to be adequate publicity so that patients are aware of their rights under the new system. Patients have been very confused about their rights under the previous complaints procedure. This Bill is the opportunity to make it perfectly clear what everyone's rights and duties are. It is important that it is widely publicised.

Another point which we on these Benches welcome is that from now on the commissioner is to lay both his special and his annual reports before Parliament rather than merely reporting to the Secretary of State.

However, some aspects of the implementation of the new system give cause for concern. First, the increase in the commissioner's workload is bound to be substantial. Even without the additions in the Bill, his workload increased last year by almost 30 per cent. That has resulted in investigations taking longer to complete. In 1994 the average length of investigations was 45 weeks but in 1995 it had grown to 60 weeks. By any standards, that is an unacceptably long time for both professionals and patients to have to wait for the results of an inquiry.

I am aware that the commissioner is being given an additional 130 staff, but a large number of them are needed purely to reduce the time taken for each investigation at the moment. The staff will not all be available for the new duties.

The need for the ombudsman's powers to include clinical judgment means that he will have to have access to independent clinical advice from a range of health professionals, including nurses. That clinical advice will take place at two levels. The ombudsman will need advice to screen complaints in order to determine whether they are of a clinical nature, to identify which parties are likely to be involved in an investigation and to decide whether the complaint is within his remit. Once a complaint is taken up, the ombudsman will again need professional clinical advice. That will all require extra staff within his department. I agree with the noble

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Baroness, Lady Jay. I am delighted that the independent clinical advice will include advice from nurses and midwives. We also welcome the ombudsman's right to refer certain cases to the General Medical Council.

What will be the cost to GPs, dentists and ophthalmic practitioners of implementing the new system? At Committee stage in another place the Minister claimed,


    "that the total annual cost arising from the expanded legislation will be £100,000 to doctors as a whole and £10 per practice".--[Official Report, 19/12/95; col. 12.]
I believe that £10 per practice is a ridiculously low estimate of what it will cost considering the staff time that will have to be taken up in training and setting up operating and monitoring practices based upon complaints procedures.

General practitioners will receive guidance from the NHS Executive on practice-based procedures which will include model guidance for practice staff. It will also mean that they will have to put up publicity notices and information leaflets and produce complaint report forms. All that will be costly for general practitioners. It is too much for anyone to believe that the cost will be only £10 per practice.

Lastly, I have a matter which I would like to discuss and will probably raise again at Committee stage: the possibility of a complainant taking legal action should not prevent the commissioner from investigating a case. Complainants will want an investigation by the commissioner. They will want to pursue a court case independently in order to seek damages. They should not be prevented from doing so. The two actions achieve completely different results. The commissioner's investigation can offer an explanation, make recommendations to the health service body and offer assurances that it will be dealt with. Legal action cannot do that, but it can provide financial compensation. So the outcomes are very different. My concern is that a complainant who wants to take legal action for negligence will be debarred from doing so because of the length of time--60 weeks--that the investigation of a complaint might take. He might be debarred for overrunning the time for taking legal action. It should therefore be considered whether it would be possible for a complainant to take action in both directions at the same time.

I look forward to the detailed discussion of amendments in Committee. I welcome the Bill. It must create the right climate for co-operation between professionals and patients in the National Health Service.

9.14 p.m.

Baroness Cox: My Lords, I am pleased to add a warm welcome to this Bill, and to add my thanks to those already expressed to my noble friend for her lucid and succinct introduction. I must declare a professional interest as vice-president of the Royal College of Nursing, which has given its support to the principles and provisions of the Bill.

First, I endorse the contribution that the proposed legislation will make towards ensuring accountability in the provision of health care. Patients, clients and their

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families are inherently vulnerable. They may find great difficulty in mustering enough courage to initiate a complaint in the unhappy event of maladministration in the provision of care, or of an error in clinical judgment. Such natural reluctance to challenge the often daunting system of the health care establishment may be exacerbated by complicated procedures.

Therefore, the provisions of this Bill, together with proposed changes to complaints procedures, are intended to introduce a single, simplified and comprehensive complaints procedure covering all providers of health care, including family health services and the independent sector. They should make it easier for any inadequacies in the quality of care to be identified, for appropriate responses to be made to those who have suffered as a result, for problems to be rectified and for recurrence of problems to be prevented. The provisions are thus a very important part of a commitment to enhance quality of care and to ensure that the highest possible standards are maintained for all who use our health services.

While warmly welcoming the Bill, I take this opportunity to ask my noble friend for clarification on two issues: training and mixed sector complaints. I turn first to training, an issue already raised by the noble Baroness, Lady Jay. The health service commissioner's extended powers are to be seen as part of the package of reforms of the complaints system. It is the intention to introduce the other two stages in the system by 1st April this year, on the same date as the new health authorities are to be established. This is a massive agenda for the health service on a very tight timescale.

It is clearly important that there should be a speedy and successful introduction of the new, simplified system. However, in many parts of the National Health Service it will require a cultural change in the ways in which complaints are managed. In the past, as my noble friend has already recognised, there has naturally sometimes been a tendency to deal with complaints negatively and defensively. In future, they are to be seen in a more positive light, as part of the assessment of the quality of care and as a tool to improve service to patients.

It is therefore essential that a culture of openness be encouraged. Staff should be encouraged to help patients to make their views known if the care they receive is unsatisfactory. So nurses, doctors and other staff will need training in the new system if it is to work and if they are to respond positively to complaints and learn from them. Will my noble friend therefore give a little information on what training and resources will be available to ensure that the new system will be implemented quickly and successfully?

The second area is that of mixed sector complaints--a variation on a theme already raised by the noble Baroness, Lady Jay. The ombudsman's powers cover those providing health services. However, the dividing line between health and social services is often blurred, particularly, for example, in the area of continuing care.

Responsibility for patient care may not always be clear-cut. For example, if a patient moves from residential nursing care provided by a health authority

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to accommodation provided by a local authority and develops pressure sores, there may be a dispute as to when the problem began and who was the responsible authority. In such a case there might be a lack of clarity as to who would be responsible for convening the complaints panel. I therefore ask my noble friend what the ombudsman would be able to do if there were problems with such a mixed sector complaint of this nature.

I conclude by strongly supporting the Bill and assuring your Lordships that the Royal College of Nursing warmly welcomes it. I suggest that Her Majesty's Government should be commended for bringing it forward and I hope that it will pass through all its stages with maximum speed, so that its important provisions can come into effect on 1st April and its objectives be achieved as soon as possible, to the benefit of all who receive health care and all who have responsibility for its provision.

9.20 p.m.

Lord Harmsworth: My Lords, I apologise for speaking in the gap. I was a few minutes late advising the Whips Office that I should like to speak. In my greenness, I did not realise how sharply the list of speakers was removed from the clipboard at noon. I hope your Lordships will forgive me for my failure to ensure my name was on the list.

I suspect that the Bill is uncontroversial in its intent and largely in its approach. Representations have been made on various aspects of the Bill. I received parliamentary briefing from the National Consumer Council, which I wish to consider with care. As my noble friend the Minister will see--I have given a copy of the letter to her officials--the briefing relates to one or two points of detail. They include the provision of certain information to the complainant as well as to the body complained of in an area which must be fraught with difficulty, not least because of the complexity which most treatments must represent to a layman, and the provision of monitoring and review in the first three years of operation under the commissioner's new jurisdiction.

I look forward to hearing the Minister's response to those points at a later stage of the Bill. I wish the Bill a fair wind.

9.22 p.m.

Baroness Cumberlege: My Lords, I am grateful to noble Lords for their consideration of the Bill at this time. I am very appreciative of the welcome that all your Lordships have given it. The provisions of the Bill reflect the deliberations of honourable Members in another place as well as the findings of the independent committee appointed to review the subject. The Ombudsman's Select Committee and the Wilson Committee on NHS complaints procedures, having heard extensive evidence from patients, relatives, practitioners and staff working in the NHS, and indeed others, both recommend that complaints concerning clinical judgment and those about family health services should be brought within the ombudsman's jurisdiction.

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The Government, following extensive consultation, were left in no doubt that those measures have very broad acceptance not only among the general public but with professional bodies, patient representative groups, NHS bodies and others. So we are at one on all that.

In future, the vast majority of complaints will be resolved at local level. That is our intention. I am glad that the noble Baroness feels that we should aim for that. We believe it right that the public should be able to discuss their concerns directly with those responsible for the services and get answers on the spot.

We are also injecting a significant amount of independence. A lay person will be involved in every decision as to whether to establish a review panel and the panel will always have a majority of independent members. I believe that we have struck about the right balance. We are avoiding creating a whole new complaints bureaucracy which would rob the NHS of all responsibility for putting things right. On the other hand, we are not allowing it complete autonomy which could lead to a reluctance to acknowledge mistakes and learn lessons for the future.

I wish to address some of the points raised during the debate. I agree very much with the view expressed by the noble Baroness that at the moment the complaints system is an unfriendly maze. We also accept that the timetable is very challenging. We have a lot of work to do before 1st April if we are to have the service ready for the changes. We agree with the noble Baroness, Lady Robson, that we have to inform users. It is no good having a good system if people do not understand that it is there and how to use it.

I do not agree with the noble Baroness, Lady Jay, that our reforms have fragmented the NHS--I am sure she would not expect me to. On the contrary; we believe that they clarify responsibilities in a way that has never been done before and our proposals about complaints are similarly clear, specifying the precise roles of GP practices, NHS trusts and health authorities.

The noble Baroness, Lady Robson, was concerned about the time it takes at the moment for the health service commissioner to deal with complaints. That is something with which we very much agree. Indeed, I know that Mr. William Reid is addressing that matter at the moment to see how he can streamline his procedures without losing their valued and deserved reputation for thoroughness. Clearly there is a balance to be struck.

With regard to litigation, the noble Baroness was concerned that sometimes the delay can prevent people from going to court or from going to the health service

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commissioner. I understand that the commissioner is unable to take on a case when it is already before the courts. But often, when it comes to deciding what route a complainant should take--a point raised by the noble Baroness, Lady Jay; that is, whether a complainant should go to the ombudsman, to the GMC or to the courts--the test is to ascertain what a complainant is trying to achieve. Once the complainant has made that clear, then the route also becomes clear. However, I do not want to give the false impression that it is always clear what is a clinical case and what is a case that should be dealt with through disciplinary procedures; there will always be grey areas.

My noble friend Lady Cox asked a specific question in that regard, concerning a mixed complaint involving social services. There is a provision in the 1993 Act to require consultation between the health service ombudsman and the local government ombudsman where he receives a complaint of that sort to ensure that the complainant has access to the right person. I agree with my noble friend that it is an increasingly complex area, and the department is in consultation with both the health service and the local government ombudsmen to ensure that complainants know which route is the most appropriate.

I am conscious that a number of issues have been raised and I am sure that we shall return to many of them during the Committee stage of the Bill. Perhaps I may address the question of resources, because I know that it is one that concerns your Lordships. We have agreed with the ombudsman's office the amount of money that he is assessing in the early stage and there is a transfer of £5 million rising to £6.5 million. That is to some extent an estimate, in that we do not know exactly how many complaints there will be. Though our estimates allow for a 10 per cent. increase, we shall need constantly to review the resources necessary for this new procedure and sometimes the movement may be downwards, though I suspect sometimes it may be upwards.

I hope that I have addressed most of the points raised. I look forward to my noble friend's detailed points when it comes to the Committee stage. Perhaps I may conclude by paying tribute to Mr. William Reid. He has an extremely difficult job and he does it with great thoroughness. He is highly respected, both within the NHS and by the public as a whole. It is right that we should be seeking to extend his role into clinical areas and thereby, I hope, reduce the acceleration towards litigation. I commend the Bill to the House.

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

        House adjourned at twenty-nine minutes past nine o'clock.


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