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Mr. Nick Ainger (Pembroke): Is the Minister satisfied that, by 1 April 1996, staff will be well aware of how the system will operate? If required, will training have been provided before 1 April?
Mr. Malone: The hon. Gentleman makes a valid point. It is important that staff are trained. It is important that proper guidance is given to them and that they have the tools with which they can implement the procedure. I attended a conference at which staff learned about the introduction of the proposals and I was much reassured not only by the well-developed interest with which staff were taking the matter forward but by the fact that software systems had been well developed so that management of the system could be eased in. I know that the timetable is tight, but in the interests of all--both those who work in the health service and patients--it is important that we stick to a rigid timetable. We have in place all the necessary training aids and procedures. The deadline is tight, but we shall make it.
I come now to the detailed provisions of the Bill. Clauses 1 and 2 deal with family health service and independent providers. They add GPs, dentists, pharmacists, providers of NHS ophthalmic services and independent providers to the list of those whom the commissioner may investigate and set out his remit in respect of the investigation of complaints about these providers.
The point of bringing independent providers within the commissioner's jurisdiction is to put beyond any doubt-- although I do not believe that any doubt was justified-- the existing presumption that his jurisdiction already covers the services which they provide to NHS patients. The measure makes it clear beyond peradventure that an NHS patient will fall within the provisions of the complaints procedure, whoever is providing the service.
Ever since the National Health Service Reorganisation Act 1973--under which the commissioner's office was first established--the legislation governing the commissioner's procedures has been intended to allow him to investigate complaints about services provided to patients by independent providers under contracts with the NHS.
We are taking the opportunity in the Bill to clarify the existing powers of the ombudsman in section 7(2) of the 1993 Act by bringing independent providers expressly within the ombudsman's jurisdiction. Independent providers are covered only in so far as they provide services to NHS patients.
Clause 3 brings schedule 1, which deals with supplementary and consequential provisions relating to family health service providers and independent providers, into effect.
Clause 4 brings the Mental Welfare Commission for Scotland within the commissioner's jurisdiction and specifies certain functions of that body 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 visiting detained patients and investigating their complaints would be brought within the commissioner's jurisdiction. Those functions relating to the review and discharge of detained patients, which in England and Wales are carried out by the mental health review tribunals, would remain outside the commissioner's jurisdiction. This again reflects the position in England and Wales. Parity will now be restored across the three nations beyond any doubt.
Clause 5 deals with the availability of another remedy, and secures that the new NHS complaints procedures should have been exhausted before a commissioner can investigate a complaint, subject to his discretion to investigate where he considers it unreasonable to expect the complainant to exhaust the other procedures. There is nothing new in the measure, which reiterates a power that is expressed in a different way in earlier legislation.
The new complaints procedures will provide an opportunity for independent review within the health service, and it would normally be reasonable to expect a complainant to have attempted to resolve his complaint through this procedure before it could be investigated by the ombudsman. Although the ombudsman is keen to take on whatever work is put his way, all the procedures should be exhausted within their proper context. That will ensure that the proper number of cases get through to the ombudsman, but that the other routes are properly used.
It is recognised that there may be circumstances in which it would be unreasonable to expect this-- for example, where there had been excessive delay in considering the complaint locally or, on certain occasions, where a member of staff wanted to refer a complaint to the ombudsman on behalf of a patient unable to act for himself or herself. It is possible for the ombudsman to use his discretion in reasonable circumstances to hear the complaint directly.
Clause 6 deals with the important issue of the exercise of clinical judgment--one of the fundamental changes brought about by the legislation. Clause 6 removes the statutory bar on the commissioner investigating complaints about action taken in consequence of the exercise of clinical judgment. When the office of commissioner was set up in 1973, complaints about actions arising directly from the exercise of clinical judgment were explicitly excluded from his jurisdiction.
The reason given at the time was to avoid impinging on doctors' freedom to treat their patients as they thought best; but the House will agree that the world has moved on considerably since those days. Of course we fully respect the independence of the medical and other clinical professions, and the special expertise and training which members of those professions hold, but it is very hard to explain to patients who simply do not understand that they
may not ask the ombudsman to investigate the very complaints about which they often feel most concerned-- those relating to the clinical decisions made about their care and treatment within the NHS.
In extending the ombudsman's jurisdiction to allow him to investigate complaints about clinical judgment--by any of the recognised health care professionals in the NHS, including doctors, nurses, midwives, family health service providers and others--it is necessary to ensure that the professional expertise involved in such judgments is fully respected, and also to ensure that those investigated are treated with scrupulous fairness. It would not be right to criticise professional judgments simply because they happened to result in hardship or suffering through no fault of the person who exercised the judgment, understandable though it might be for the patient to wish to complain in such circumstances.
Mrs. Elizabeth Peacock (Batley and Spen):
Will my hon. Friend say a little, before he moves on to the next clause, about what action can be taken if the ombudsman finds that something has gone wrong which has left someone in a much worse state after surgery than before it? People, and certainly constituents of mine, have found it most difficult to take action in such cases.
Mr. Malone:
I shall deal with that point later in my remarks. If it is appropriate to pass any information that is gleaned by the ombudsman to another forum where it can be used, that will be possible.
Mr. Barry Jones (Alyn and Deeside):
Before we deal with the process of the ombudsman, let us consider the case of a GP who is found guilty of professional misconduct. He appeals and, after appealing, is enabled to continue practising until his appeal is heard--perhaps for six or 18 months. What might the Government do to help assuage the fears of members of the GPs' panel?
Mr. Malone:
On the hon. Gentleman's last point about the GPs' panel, I am not sure. We are discussing powers that we have taken in recent legislation to empower the General Medical Council to deal with such matters in a far more flexible way, as the hon. Gentleman knows, so that the outcome satisfies patients' rights and interests. That is a slightly separate, although parallel, matter to that which is before the House today.
I return to the detail of clause 6. In considering whether to uphold a complaint about a clinical judgment, the commissioner will need to take account of clinical advice. That is a central element in the changes that are before the House in the Bill. For example, the commissioner will need to take account of whether the judgment was of an acceptable professional standard. The commissioner has been helpful by making available to the House a paper setting out how he proposes to exercise his new jurisdiction, should Parliament approve the Bill. I commend the paper to right hon. and hon. Members, for it sets out in some detail--and, unusually for documents of this kind, in straightforward English and with clarity, which I welcome--how he proposes to approach questions about clinical judgment and other issues arising from the provisions in this Bill. I commend it to the House.
The 1973 Act which set up the office of health service commissioner made provision to enable the commissioner to receive independent advice. Those provisions are
preserved in the 1993 Act and enable the commissioner to obtain advice from anyone who, in his opinion, is qualified to give it. The commissioner's paper sets out the principles that he is minded to follow in seeking such advice.
Clause 7 deals with general health services. It removes the statutory bar on the commissioner investigating complaints about family health services and provides that he cannot investigate action taken by a health authority or health board in investigating alleged breaches of terms of service by family health service providers. This is entirely in line with the existing provisions in section 7 of the 1993 Act which prevent the commissioner from investigating personnel or disciplinary matters relating to service in the NHS.
Clause 8 deals directly with personnel matters. It amends the provision in the 1993 Act which provides that a commissioner shall not investigate action taken in connection with personnel matters in relation to service under the National Health Service Act 1977 or the National Health Service (Scotland) Act 1978, to include service under the National Health Service and Community Care Act 1990. This is simply a tidying-up measure. Clause 8 also secures that a commissioner can investigate action taken by a health service body in operating a complaints procedure.
The general public have access to the commissioner to complain about, among other things, the way in which NHS complaints systems have treated them. Clause 8 ensures that NHS staff, family health service providers and independent providers and those working for them are given the same right to complain about the way in which complaints systems operated by health service bodies have treated them, in the interest of equity. Employees of health service bodies would, by virtue of the provisions in clause 5, normally 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 service body should 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 a commissioner to send a report of an investigation to the health service body which is the relevant one when the report is made. This is simply a tidying-up measure 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 legislate on certain recommendations about reports made by the Select Committee on the Parliamentary Commissioner for Administration. It removes the requirement to inform the relevant health service body where the commissioner decides not to investigate a complaint, and requires the commissioner to lay special reports and annual and other reports on the performance of his functions directly before Parliament, rather than via the Secretary of State, thus enhancing the direct link between the commissioner and Parliament and, in particular, the House.
Clause 11 extends the exemption from giving evidence in proceedings to a commissioner's advisers. That is necessary because of the greater need to obtain advice
from external advisers once the commissioner's remit is extended to include clinical judgment. The clause also allows a commissioner, at his discretion, to disclose information--this is the point that my hon. Friend the Member for Batley and Spen (Mrs. Peacock) made in relation to an earlier clause--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.
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