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Lord Harmsworth: My Lords, when I first read this amendment I had some difficulty with it. It is possibly owing to the wording. In what she has just said the noble Baroness, Lady Jay, has clarified it to a certain extent. I had difficulty with the words "factual summary". It seemed to me that the commissioner's job had only two stages. The first was to agree with both parties what the facts of the complaint were (and hence my difficulty with the words "factual summary": that is to say, that both understood exactly what the grounds of the complaint were and agreed them.) The commissioner's second and last stage was to, as it were, produce his report. I suspect that that is his business, and his alone.

My own view is that he is assiduous in not only agreeing with Section 11(1) of the Health Service Commissioners Act 1993 which requires him to afford the health service body complained of an opportunity to comment on the allegations. But he is also very careful by his procedures to agree with the complainant and with the body being complained about, that the facts are right. He will go back and forth, as it were, until those facts are agreed.

He has set out his procedure in a letter of 16th January to my honourable friend the Parliamentary Under- Secretary of State, John Horam, in another place. I believe that that letter has been made available to the House of Commons Standing Committee on the Bill. I wonder whether the Minister would like to make it available in the Library because it is a valuable document.

In the end there is a final safeguard, in that the body being complained about may have to account to the Select Committee on the Parliamentary Commissioner for Administration. If the facts of the case are not right then there is clearly a difficulty there. As a consequence,

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my view of all this is that the amendment is perhaps unnecessary. I would rather that it were not on the face of the Bill.

Baroness Cumberlege: My Lords, I have listened very carefully to the points made by the noble Baroness, Lady Jay, and I understand the strength of feeling behind them. As she has said, there is support for this amendment from the Benches opposite and it has been very consistent. However, we are of the view that it would be wrong to legislate on such a detailed operational matter, and this is precisely the kind of issue we feel is best left to the ombudsman's discretion, as is the view shared by my noble friend Lord Harmsworth.

I understand that the ombudsman's purpose in sending the full draft report to the body complained against, including the draft findings and recommendations, is, first, to ensure that the facts as reported are not disputed. This is particularly important as it is the body complained against which may face public criticism for its actions. Secondly, it is in order to seek appropriate redress if the complaint is justified and calls for redress. Thirdly, it is to ensure that any necessary procedural changes are agreed to reduce the possibility of the same mistake being repeated.

My honourable friend the Parliamentary Under-Secretary of State for Health, Mr. Horam, has discussed this matter with Mr. Reid, who has explained that he has strong reservations about showing a draft of the report to the complainant. Mr. Reid has stressed that the investigatory, as opposed to the adversarial, procedure is one of the tenets underlying the concept of the ombudsman. He or she should not act in the same way as the courts. He has little doubt that if he were required to show a draft of the report to the complainant in every case, the time taken to conclude the investigation would be lengthened.

Your Lordships may be aware that the commissioner's present practice has been judicially reviewed in a Parliamentary Commissioner case and was not held to contravene the requirements of natural justice. The issue raised by the noble Baroness has implications for the ombudsman in his parliamentary as well as his health service role. In this Bill we are not seeking to change the ombudsman's method of procedure and we do not wish to bring the health service side out of line with the parliamentary side.

My honourable friend has written both to Mr. Reid and the chairman of the ombudsman's Select Committee, as my noble friend has said, on 16th January, inviting them to consider this issue further in the light of the points made in another place. The Select Committee chairman has replied undertaking to do this. I will place the letter in the Library if my noble friend feels that that is helpful. This matter is being dealt with by honourable members in another place. I hope that the noble Baroness will agree to await the outcome of that and in the meantime withdraw her amendment.

Baroness Jay of Paddington: My Lords, I am grateful to the Minister for her reply. I still believe that there is a slight peculiarity about a position in which we are asked to await the outcome of the Select

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Committee's report. As I described in quoting indirectly from the letter of the chairman of the Select Committee, Mr. Pawsey, that will be part of the forthcoming review for 1995. It is not clear how the Government will react in the context of the reply of the noble Baroness's her honourable friend Mr. Horam. If the context is that it will be looked at more broadly than simply in relation to the Health Service Commissioner, and it is agreed by the Select Committee on the Parliamentary Commissioner for Administration that this is a worthwhile reform, why, when the Bill will already have passed through your Lordships' House, does it have to wait until the report is forthcoming, which may be a matter of weeks after we finish our deliberations on the Bill?

The Minister has referred to the lack of necessity to legislate on what she describes as detailed operational matters. That is a matter to which we may return when we look at Amendment No. 3. That raises the issue of the detailed evaluation of the processes suggested in the Bill. I do not accept the point raised by either the Minister or Mr. Reid about the time of the complaints procedures being extended by sending a draft report to the complainant. Surely the thing to do is to send the report both to the complainant and to the body or person complained against at the same time. Some kind of time limit can be set for them to consider the report concurrently.

But, on the basis that the Minister has encouraged me to believe that the Select Committee on the Parliamentary Commissioner for Administration will consider this issue in detail and will be prepared to take a different view--which obviously will be operationally relevant to the work of Mr. Reid and any successors-- I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Jay of Paddington moved Amendment No. 3:


Page 6, line 14, at end insert--
("(6) After subsection (4) there shall be inserted--
"(4A) During the three years from the date on which section 10 of the Health Service Commissioners (Amendment) Act 1996 is brought into force, each of the Commissioners--
(a) shall conduct at least one survey of a representative sample of people who have made a complaint under section 3 of this Act to assess the level of satisfaction of complainants with the investigation of their complaints;
(b) shall at least once a year hold meetings to discuss the effectiveness of the investigation of the complaints made under section 3 of this Act with people and organisations who appear to the Commissioner to represent the interests of patients, health service professionals and the bodies subject to investigation by the Commissioner; and
(c) shall include in his or her report made under subsection (4) a summary of the results of any survey conducted under paragraph (a) above, the discussions held under paragraph (b) above and any recommendations by the Commissioner to amend the system for making complaints under section 3 of this Act.".").

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The noble Baroness said: My Lords, Amendment No. 3 is important in the context of previous discussion about not seeking to put some of my concerns into primary legislation. Amendment No. 3 is an attempt to increase the transparency and accessibility of the ombudsman's work and to establish an effective system for monitoring and evaluating his new activities in the early years of their operation. Those will include the details that we have discussed in earlier amendments.

The amendment is the result of discussions among my honourable friends in another place, myself and the National Consumers' Council. We all believe that the enlarged responsibilities of the Health Commissioner for NHS complaints are sufficiently radical to merit a special process of evaluation so that the famous level playing field is achieved. I believe that to be particularly important in view of the Minister's response to the two earlier amendments that we have discussed this evening, which she feels are inappropriate for primary legislation. I believe that the process of evaluation and monitoring becomes even more crucial.

Too often we are aware that there is little evaluation in the health service. In this Bill we have the opportunity to achieve it at an initial stage and avoid subsequent contrary assertions about the success or failure of any particular change within the NHS. Amendment No. 3 proposes three specific initiatives: first, that in each of the first three years of operation the ombudsman should conduct at least one complainant satisfaction survey. Secondly, he should arrange a meeting in each of the first three years of the new system for relevant interests such as patient organisations, professional bodies, advisers and managers to evaluate and discuss developments and emerging issues. Thirdly, he should publish a report of these meetings, including the complainant surveys and resulting recommendations for amending the system. The Bill already requires the commissioner to place formal reports before Parliament. I believe that such monitoring would make it possible to make a proper assessment of how the process was working in practice. It would be very easy to include the two concerns which were the subject of my two earlier amendments this evening.

Too often one is told anecdotally that the complaints system is working satisfactorily, but on further investigation one finds that a patient or complainant has just given up rather than been satisfactorily dealt with. The whole object of the new NHS complaints system is to make the system much more user-friendly at every level. A more obviously open way of judging and evaluating it will enable one to be sure that patients are satisfied and not just exhausted. In addition, this system of evaluating and monitoring will give patients the confidence that the system is fair and open. It will extend their knowledge of the system, which appears to be complex, although it has been revised and made more user-friendly. It will increase access to information, including the new leaflet that the Minister has described this evening.

In another place the Minister, Mr. Horam, said that he would raise the issue with the commissioner. Before the Bill leaves your Lordships' House it is important that we know the outcome of those discussions and

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whether the process of monitoring is acceptable to the commissioner and will be included in his new arrangements. I beg to move.


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