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Mr. Jenkins: If a locum has no access to individual records and is called out, as part of a commercial activity, and then makes a mistake because of the lack of access to those records, is his competence or the system in question?
Mr. Dismore: Both would possibly be in question, but we have to be realistic. As it becomes more common for records to be computerised, we may have an answer to that problem, but it is inevitable that locums will be used. My concern is not the competent locum, who will bear in mind the conditions in which he has to operate--which may include not having a complete medical history--but those doctors who have retired from the NHS to avoid an inquiry by the ombudsman and who still practise as locums. Their competence may be in question, as well as their ability to operate in the circumstances that I have described.
It is important that the BMA welcomes the Bill. It supports the initiative
Mr. Jenkins:
It is one thing to have a time limit of, say, six years, but a catalogue of events may stretch back 20 years. Memories fade and records are not necessarily kept, so justice cannot be achieved after such a long time.
Mr. Dismore:
I do not wish to start a peroration about the way in which the limitations legislation works, because that would stretch your patience a little too far, Mr. Deputy Speaker. However, I still keep up to date by reading the law reports in the quiet hours while waiting for late-night votes and many cases involve interpretation of the law on limitations. While we have a standard bar of three years for bringing a claim, there are many exceptions and it is important that those exceptions are translated into any complaints procedure in the NHS. The
My main problem with the Bill is that it does not go far enough. The reports from the health service commissioners and from the Select Committee on Health, which has examined the matter over several years, point out serious problems with the original Health Service Commissioners Act 1993. Its most serious loophole was that it placed clinical negligence outside the complaints procedure. That loophole was closed by the Health Service Commissioners (Amendment) Act 1996, but many problems remain. I hope that we will be able to plug more of the loopholes in the 1993 Act as we consider this Bill in Committee.
The Bill has an ambitious long title. It is to
On 7 December 1999, GP magazine highlighted one of the problems of the existing system. It reported:
The quotation in GP magazine is instructive. The Medical Defence Union's job is to insure doctors against clinical negligence claims, and it has done more than any other body to obstruct complaints being brought and satisfactorily disposed of. It tells doctors to be careful about what they say to patients for fear of compromising their legal position. It fights medical negligence cases tooth and nail and strings them out for years. It is part of the problem, not the solution. By rubbishing the ombudsman service in that way, it is ensuring only that there will be more work for the insurance companies, for whom more complaints brought through the courts mean more trade.
Sir Geoffrey Johnson Smith:
I respect the hon. Gentleman's wisdom, gained as a practising lawyer in this field, but I hope that he is not suggesting that the Bill should be dropped because it does not go far enough. Wider reform would be a matter for the Government, but we must get our priorities right and deal with what we know we can deal with. The Bill has raised no objections and is a modest but significant improvement on the 1993 Act. We should not wait for the grand legislative scheme that he is beginning to outline. It is hard for me to swallow the concept of waiting and throwing the Bill out at this stage. I cannot foresee the Government including the provision in a Queen's Speech, given that there is already a long waiting list of measures bidding for recognition by the House of Commons.
I hope that the hon. Gentleman will agree that whatever modest change the Bill may make should go ahead, and that we should not spend a great deal of time trying to do what we know the Government one day may wish to do.
Mr. Deputy Speaker:
Order. The right hon. Member for Wealden (Sir G. Johnson Smith) has made an important point. The Bill before us is a very narrow piece of proposed legislation, and it is determined by its title and by its contents. The hon. Gentleman is looking at matters that could be amended at another time, and I remind him that we can consider only what is before us this morning.
Mr. Dismore:
Thank you, Mr. Deputy Speaker. However, the Bill's long title states that the aim is to amend the 1993 Act. That is very ambitious, and I believe that it would be in order for us to table amendments in Committee to deal with the shortcomings in the existing system identified by me and other hon. Members.
I have no objection to the Bill. I support what the right hon. Member for Wealden is trying to achieve. However, the long title permits us to address other issues by means of amendments to the Bill in Committee.
Mr. Deputy Speaker:
Perhaps I can assist the hon. Gentleman. As I mentioned, the Bill's scope is determined not only by its title, but by its content. He must confine himself to the content of the Bill.
Mr. Dismore:
I am grateful, Mr. Deputy Speaker.
Mr. Hopkins:
I am slightly worried by something that my hon. Friend the Member for Hendon (Mr. Dismore) said. Will he say whether problems could arise at the interface between the areas covered by the Bill and the legislation that it amends, and the areas that are not? Is it not important to ensure clear definition so that the Bill's scope is as wide as possible? If the limits of its application are blurred, people might be able to evade its provisions.
Mr. Dismore:
That is an important point. We have to look at the role of the ombudsman, which is clearly set out in his report. He states:
The first stage of the internal procedure is the local resolution, under which the health authority trust and the relevant primary care practices are required to establish procedures for investigating and resolving complaints. If that process fails, the second stage is the independent review panel. Patients and carers who are not satisfied with the outcome of local resolution are entitled to request an independent review to consider the complaint. If they make that request, the complaint is reviewed by a convener, who is usually a non-executive director of the relevant trust or authority.
Patients who are still not satisfied can refer the matter to the health service commissioner. The Bill seeks to solve the problem of GPs who retire before a complaint to the ombudsman can be determined.
It is my experience, and I am sure that it is shared by hon. Members who have had to deal with complaints against doctors, that the NHS internal complaints procedure can take many months to grind through the various stages. For example, I was told about the case of a woman who underwent a biopsy on her cervix, having been assured that it would not affect her fertility. The procedure was not properly carried out and in fact they sewed up her cervix. She was not happy: she obtained the medical records, made a complaint, the trust said that it had lost the records, she sent it copies, there was a lot of delay, no meetings were offered, the trust would not agree to an independent review, she lost faith and she litigated the case.
to ensure that a complaint against a GP could be investigated regardless of whether or not the GP retired from the NHS and to remove the loophole through which GPs can evade investigation. Information as to the performance of the doctor revealed in the investigation would assist in the assessment of the GP as part of the revalidation process and as part of any investigation by the General Medical Council.
My hon. Friend the Member for Burton (Mrs. Dean), who is no longer in her place, made an interesting point about time limits, which are not addressed in the Bill. While I understand the point made by her and my hon. Friend the Member for Tamworth, we must proceed cautiously. When considering the complaints procedure in the NHS, of which the ombudsman forms part and which the Bill aims to improve, we need also to consider the relationship between the complaints procedure and clinical negligence cases. If the time limits for complaints are less generous than those set out in statutory and common law, we run the risk of throwing the baby out with the bath water, in that the only remedy then available to the patient who wanted to make a complaint after the time for complaint had run out would be to go to law. I am sure that we all agree that it would be better if we could devise a system that satisfied complaints without recourse to law.
Amend the Health Service Commissioners Act 1993.
That ambition is let down somewhat by the modesty of the amendment that it proposes. However, the scope of the long title would be sufficient to allow the concerns expressed by hon. Members of all parties to be addressed.
the Medical Defence Union's deputy head of advisory service, Dr. Patrick Hoyte, said the powers of the NHS ombudsman were so weak it was unlikely a GP would feel compelled to retire to escape a ruling.
That may or may not be true, but the Medical Defence Union gives the game away when it states that the ombudsman has very few powers. The Bill may catch one or two more doctors who could be named and shamed, but it will not solve the problems of most of the patients who resort to the ombudsman.
He told GP: "The ombudsman can only name and shame. How much of a sanction that is is debatable. I'd be surprised if a GP would think of retiring to avoid an investigation.
I think in cases where GPs have retired it may be purely coincidental."
My core role as Health Service Ombudsman is to deal with complaints. My office is not at core an audit or educational body, although we do a lot of work to feed the outcomes of our work into those important areas.
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The ombudsman is part of a much wider NHS system of dealing with complaints, and we have to see his role in that context.
I shall not test the House's patience by going through the whole NHS complaints procedure, but we must understand why people get frustrated when they bring a complaint against a GP who has retired or who goes on to retire. Before the ombudsman can get involved, the internal complaints procedure has to be exhausted. One of the problems with the internal complaints procedure is that it takes so long.
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