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Health Service Commissioners (Amendment) Bill

7.54 p.m.

Baroness Cumberlege: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.--(Baroness Cumberlege.)

On Question, Motion agreed to.

House in Committee accordingly.

[The Lord Cocks of Hartcliffe in the Chair.]

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Clause 1 [Providers to be subject to investigation]:

Baroness Jay of Paddington moved Amendment No. 1:

Page 1, line 14, at end insert ("or to purchase or commission health services for the population of any Health Authority Area.").

The noble Baroness said: In moving this amendment I wish to speak also to Amendments Nos. 2 and 3. I welcome the Committee to the uncontroversial subject of the National Health Service!

The purpose of Amendment No. 1 is to fill a gap in the health service commissioners' remit so that the activities of local purchasers, or--as they are often called today--commissioners of health services, can be included. At the moment it appears that only providers of health services fall strictly under the commissioners' responsibility. As Members of the Committee will know only too well, in the new organisation of the NHS, a "provider" has a specific meaning. I hardly need tell the Committee that providers are those who directly give services to patients, whether the providers are family doctors, community services or hospitals.

Those who purchase or commission the services may be GP fundholders, but are also important local health commissioning agencies, or--as they will be under the new arrangements from April 1996--unitary health authorities embracing both the old DHAs and the old FHSAs. They are, and will be, responsible for funding and assessing the health needs of populations. They were described in the original legislation as the "people's champions" and they are the bodies with the ultimate responsibility for health in each area. This responsibility will become even more important once the statutory regional authorities--the next tier of health authorities which have existed--disappear at the end of next month. I hope the Minister will agree that it is therefore important that they are specifically and explicitly included in the extended powers of the health service commissioners proposed under this Bill.

Decisions about purchasing can have a profound effect on services and care. Purchasing is about choosing priorities for care within finite resources. If, for example, a local purchasing authority makes a decision only to have one MRI scanner within its statutory area, although it may have three provider trusts--three hospitals--that would affect the level of care on offer in that particular health authority's area. If a patient felt that he or she had suffered and wished to make a complaint because an MRI scan was not immediately available as a result of a purchasing decision that only one scanner would be available within that authority, in my opinion, that complaint would surely be more properly directed towards the purchasing authority rather than the provider health trust, which would house the scanner and directly provide care. Yet, as I understand it, the Bill does not explicitly allow for complaints against those purchasing authorities.

Further, as has happened recently, a purchasing authority may decide not to commission any services at all in a particular clinical field. The example is often given--I think correctly--of IVF treatment being

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limited to a few specific age groups and a few specific cycles of treatment. Presumably, in those circumstances, an aggrieved woman who sought this treatment should be able to make a complaint. This would be a complaint about a lack of care, rather than a failure of care and would fall--if this amendment were accepted--under the ombudsman's remit. It is important that the activities of purchasing authorities are specifically included on the face of the Bill, particularly as I believe they will increasingly have to take hard decisions about priorities and levels of treatment to be provided in their specific areas. I beg to move.

Baroness Cumberlege: As I understand it, these amendments are aimed at ensuring that employees of health authorities are covered by the ombudsman's remit. We do not believe there is a need for this amendment. The existing legislation governing the ombudsman already ensures that any health authority employee, and any decision or action taken by or on behalf of a health authority, can fall within the commissioner's remit. Section 7 of the 1993 Act specifically provides that the commissioner may conduct an investigation into matters relating to either NHS contracts, or contracts with the independent sector made by health authorities, boards and trusts.

I can understand that, despite assurances given by my honourable friend the Secretary of State in another place, the noble Baroness may still be concerned that the ombudsman is somehow prevented from investigating decisions by managers, and in particular purchasing decisions. I can assure her that the ombudsman can and does investigate such decisions, provided, of course, the complaint falls within his general remit. For example, he has upheld complaints against health authorities for failing to provide a service which it was the duty of the health authority to provide, such as failure to provide continuing care.

The Bill will also enable the ombudsman to investigate any clinical decisions involved in purchasing services. It will also bring GP fundholders and their purchasing decisions within his remit for the first time.

I can assure the noble Baroness, Lady Jay, that we have left no stone unturned in ensuring that the Bill, together with the existing legislation, allows the commissioner to investigate complaints about all NHS services and about purchasing decisions. Therefore, I hope that the noble Baroness will see fit to withdraw the amendment.

8 p.m.

Baroness Jay of Paddington: I am grateful to the Minister for that reply. It is an important form of reassurance. Nonetheless, although I understand that much of the commissioner's activities depends on case law and that complaints have been upheld in this area, my concern remains that where there is an amendment to the basic legislation, as intended with this Bill, it would be appropriate to try to make it as specific as possible.

The anxiety that I tried to express in moving the amendment is that, as decisions about prioritising resources become more and more difficult and

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prioritisation in itself affects clinical provision and care at every level, there may well be difficulties about where the complainant should go with his or her complaint about what he or she may perceive as a rationing decision which has had an impact on the care and treatment received.

I would be happier if it were made specific on the face of the Bill that care and treatment under the NHS also include purchasing decisions by commissioning authorities. However, given the clear reassurances from the noble Baroness, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 2 and 3 not moved.]

Clause 1 agreed to.

Clauses 2 to 4 agreed to.

Clause 5 [Availability of other remedy]:

Baroness Robson of Kiddington moved Amendment No. 4:

Page 4, line 18, leave out from beginning to ("after") and insert--
("(1) Section 4 of the 1993 Act (availability of other remedy) shall be amended as follows.
(2) Subsection (1)(b) shall be omitted.

The noble Baroness said: The Minister will remember that at Second Reading the whole House welcomed the powers given to the Health Service Commissioner to inquire into clinical judgments. Amendment No. 4 removes Section 4(1) of the 1993 Act, which at present prevents the commissioner from conducting an investigation if the complainant has or had a remedy by way of proceedings in any court of law. Therefore, if the complainant has the possibility of taking legal proceedings, the commissioner will now face no statutory bar to undertaking an investigation. Particularly in cases concerning clinical judgments, there will often be more than one route for redress. However, there is a problem as the Bill stands at present.

I recognise that one of the main aims of extending the commissioner's powers to cover clinical judgment is to ensure that there is less litigation. We welcome the fact that complainants will no longer be forced to go to the courts through lack of options, or be denied access because of the cost of seeking that remedy. However, complainants who want an investigation by the commissioner and also want to seek damages should not be prevented from so doing. The commissioner himself, in his consultation on the extension of his powers, recognised that legal proceedings provide no assurance that any action will be taken to prevent a recurrence of the matter complained about, whereas his investigation can give such an assurance. On the other hand, he cannot award damages. Therefore, the outcome of those two routes is quite different, and often the complainant would like to see them both implemented. In addition, the complainant may not be certain about the outcome he is seeking.

Research has shown that most patients, when they begin legal action or apply to the health service commissioner for an investigation, are mainly looking

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for an apology and want to find out what happened and why it happened and, above all, they want assurances that it will not happen again to any other patient. That may well have been their very first concern. Financial considerations can be a secondary concern. However, at present under the Bill the patient is in an either/or situation, because the commissioner cannot ensure that they receive compensation and the courts cannot ensure that there is redress and that the problem complained of will not happen again.

Secondly, on many occasions it will be difficult for the patient to know whether to opt for legal action in a court. In clinical judgment cases it may often take some time before it becomes clear that there is a case for compensation to be answered in court. Complications resulting from treatment can sometimes take six months or up to a year to manifest themselves. However, a complainant is expected to undertake not to pursue legal action after the commissioner has investigated. Therefore, the complainant has lost his opportunity to go to the courts. I believe that that is not fair.

I hope that the Minister will be able to meet my anxieties on this question and agree to the amendment. I beg to move.

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