Previous Section Back to Table of Contents Lords Hansard Home Page

Baroness Andrews: Clause 111(1) is intended to set out in general terms what a complaint may be about. As the noble Lord said, Amendment No. 379 would broaden who may make a complaint under the regulations and what a complaint may be about.

The amendment would include too great a level of detail in the Bill. Clause 113(2)(a) already allows for the regulations to set out who may make a complaint; and Clause 113(2)(b) provides that regulations may make provision about the complaints which may or may not be made under the regulations.

I suspect that we shall discuss the regulations during our debates on the clauses. Let me reassure the Committee that we intend to consult widely on the content of the regulations. We therefore need to be able to respond to comments received and to change things, where people come up with sound reasons for doing so. It would restrict our ability to respond flexibly to the results of the consultation if specific provisions were required under the Bill. So the amendment would not add value to the Bill. I hope that the noble Lord will share my view.

On Amendment No. 380, I fear that the noble Lord has the power of clairvoyance. We do not believe that it is necessary to substitute "shall" for "may". In circumstances such as this, where the intention of the regulations is to implement policy, it is normal drafting practice to provide a power to make regulations rather than to impose a duty. So we find that amendment difficult to accept.

Although I understand what the noble Lord seeks to achieve by Amendment No. 386, again, it would be inappropriate to be so prescriptive about the detailed aspects of the regulations. It is important to retain some flexibility on the detail of what regulations will eventually provide, especially from the point of view of involving stakeholders in decisions about how the procedures that will affect them will work. As I said, we intend to consult widely on the regulations.

Moving to Amendment No. 395, there will clearly be occasions when it is appropriate for CHAI or CSCI to exercise the functions of their counterparts on their behalf: for example, where a complaint is about a package of services delivered by arrangement under Section 31 of the Health Act 1999. In such cases, regulations made under Clauses 111(1)(c) and 112(1)(c) may require each commission to exercise the

20 Oct 2003 : Column 1394

functions of the other in considering a complaint about both health and social care. To that extent the amendment is inappropriate and unnecessary.

It is equally important that CHAI and CSCI should co-operate with each other where appropriate: for example, where one body may have expertise that the other lacks. That is something that we have tried to advance in reforming the complaints procedure; that is central to what we are trying to do. The Bill already provides adequately for that in Clause 118, which requires CHAI and CSCI to co-operate when necessary for the effective discharge of their respective functions, and in particular for CHAI and CSCI to delegate any of their functions to each other.

So, for all those reasons, although I am sorry to give the noble Lord a disappointing reply, I hope that he will withdraw the amendment.

Lord Clement-Jones: I thank the Minister for her reply, although I confess that I do find it disappointing. She seems to be arguing for flexibility on the Government's behalf but not much flexibility for the complainant. That does not have the right balance. She says that the Government will be consulting widely. I hope that they will bear in mind the need for complainants not to have an absolutely rigid time limit imposed on them. We may well want to take the matter further during the Bill's later stages.

As for Amendment No. 395, to which I did not speak, I entirely accept what the Minister said about Clause 118, which provides much assurance in that respect. However, Clause 111 is inadequate in its detail about the complaints system to be introduced; it gives few pointers in that respect. We may need to fill that out in future. In the mean time I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 111 [Complaints about health care]:

[Amendment No. 380 not moved.]

Baroness Noakes moved Amendment No. 381:

    Page 46, line 37, at end insert—

"( ) the provision of health care services by any other person or body."

The noble Baroness said: In moving Amendment No. 381, I shall speak also to the seven other amendments in this group tabled in my name and that of my noble friend Lord Howe. They relate to the complaints procedures in the Bill and follow on from the issues to which the noble Lord, Lord Clement-Jones, has just spoken. We broadly welcome the new provisions, but they raise several issues. A number of the amendments that I shall discuss have been inspired by very helpful briefing provided by the citizens advice bureau, which has considerable expertise and experience in handling complaints.

Amendment No. 381 would add to the list of areas for complaint set out in Clause 111(1),

    "the provision of health care services by any other person or body".

20 Oct 2003 : Column 1395

The scheme covers complaints about English NHS bodies or about healthcare arranged by an NHS body, for example. But it does not cover healthcare provided wholly in the independent sector.

The separation between the independent sector and the NHS is not as clear-cut as it once was. Many NHS patients are treated in independent hospitals under PCT contracts, which are designed to cut waiting lists. But, alongside that, the independent sector treats rapidly increasing numbers of people on a self-paid basis, where patients have been failed by the NHS.

As there are no complaints mechanisms for those treated privately in the independent sector, there are anomalies. In an independent sector hospital, patient A, who is funded by the PCT, has access to the complaints mechanisms under the Bill, while patient B in the next room, who is paying for himself, has no such access. In an NHS hospital, the patients in both the public ward and the private patient wing are covered. Under Amendment No. 381, all providers of healthcare would be covered, whatever the setting.

Amendment No. 382 would allow regulations under Clause 111 to deal with how correspondence relating to complaints is dealt with, including adherence to time limits for replying substantively to correspondence.

The Citizens Advice Bureau reported to us that NHS bodies say that they have resolved complaints within the current 20-day time-scale when all they have done is send a letter of response. The time-scales can be much greater when complainants write follow-up letters, perhaps seeking more information or challenging an initial response. I hope that the Minister will see the need for being able to handle that issue effectively in the regulations.

Amendments Nos. 387, 388 and 391 are probing amendments concerned with who and what can be excluded from the complaints scheme by regulations. They would amend or leave out paragraphs (b), (c) and (f) of Clause 113(2). There are concerns that certain kinds of care, such as continuing care, could be excluded from the complaints mechanisms. That would raise significant issues, which is why it is so important to understand for what the Secretary of State intends to use the regulation-making powers. If he has no clear idea at this stage, we may well suggest at a later stage, on other than a probing basis, that the powers in Clause 113 need to be curtailed.

Amendment No. 390 would add a new paragraph to allow regulations under Clause 113 to cover oral hearings. It is unclear from the Bill whether the Government envisage oral hearings at all, the circumstances in which they might take place, and, if they take place, the procedures to be followed. There is a fear that complaints will be seen as an impersonal bureaucratic process in which the complainant's voice is not heard.

Will the Minister say whether the Government envisage oral hearings, and, if so, in what circumstances? How will CHAI equip itself to handle the function of complaint-handling, which is so very

20 Oct 2003 : Column 1396

different from its core functions of audit and inspection? In particular, will CHAI have regard to model rules issued by the Council of Tribunals?

The different aspects of the new complaints procedures are not mere detail. It is important that we understand whether the Government's regulations will result in procedures that meet legitimate aspirations.

Lastly, Amendments Nos. 384 and 385 deal with regulations under Clauses 111 and 112. The amendments require the affirmative procedure—one of our old friends returns to the Committee. The regulations are not only about the who, what and when of complaints. They also cover issues such as payments of compensation under Clause 113(3) and can also, under Clause 113(4), override the duty of confidentiality and dispense with consent to the use of personal data. That is why we propose the affirmative procedure in Amendments Nos. 384 and 385. It is vital that there is proper scrutiny of the provisions. I beg to move.

11 p.m.

Baroness Barker: I rise to speak to Amendment No. 383 and the others in this group standing in my name and that of the noble Lord, Lord Clement-Jones. Amendment No. 383 raises the issue of oral hearings. As the noble Baroness, Lady Noakes, said, the amendments have been framed and informed by the work of the CAB and other organisations that have a great deal of experience of helping people through the Byzantine NHS complaints procedure. It is no exaggeration to say that when the Bill was in its formative stages, some feared that what would be wished on NHS patients and those undergoing social care was the worst of the NHS complaints procedures. I accept that a great deal of work has been done—in the ICAS pilot, for example, which ran for most of last year.

It has become evident to many people who work in this field that the facility to have an oral hearing is not only desirable in some cases—for the providers of services and patients—but essential. The people for whom it is most essential are those for whom English is not their first language, who find it easier to have an oral rather than written interview. That is why it is an important ability to have within the Bill.

As the noble Baroness, Lady Noakes, said, the time scales must be realistic for the work to be done, but they must also be adhered to. There have been many examples when the NHS has obeyed the letter of the existing rules by simply sending out a missive within the deadline—the classic bureaucratic way of getting round the imposition of a date—but not actually resolving the matter. We believe that time scales should be realistic but should be adhered to.

We also believe that, when time scales have been badly missed and abused, there should be a penalty on the NHS body concerned. Therefore, we propose an upscaling system in which matters that are not dealt with within the right time go up to another level such as the strategic health authority.

20 Oct 2003 : Column 1397

Finally, a great deal has been done over the past few years to ensure that information about one's right to complain is more available. A notice that one has the right to complain is something that one now regularly sees in NHS premises. However, details of how to go about complaining or resolving issues are often not advertised. That is of primary importance and is the force behind our amendments in this group.

Next Section Back to Table of Contents Lords Hansard Home Page