---

19 May 2000 : Column 571

House of Commons

Friday 19 May 2000

The House met at half-past Nine o'clock

PRAYERS

[Madam Speaker in the Chair]

Orders of the Day

Health Service Commissioners (Amendment) Bill

Not amended in the Standing Committee, considered.

New Clause 4

Time Limit on Making of Complaints (No. 2)

' . Complaints may be made under section 3(1) of the Health Service Commissioners Act 1993 (general remit of Commissioners) for a period not exceeding three years following the retirement or resignation from the National Health Service of the person who is the subject of the complaint.'.--[Mr. Forth.]

Brought up, and read the First time.

9.33 am

Mr. Eric Forth (Bromley and Chislehurst): I beg to move, That the clause be read a Second time.

Madam Speaker: With this it will be convenient to discuss the following: Government new clause 5--Requirements to be complied with.

Government new clause 6--Transitional provision.

New clause 7--Time limit on making of complaints about providers who have retired or resigned--

' . The limitation for a complaint under section 3(1) of the Health Service Commissioners Act 1993 (general remit of Commissioners) shall be the same as that which applies to an action for clinical negligence at common law, notwithstanding that the person the subject of the complaint has resigned or retired from the National Health Service.'.

Mr. Forth: Madam Speaker, I hope that you agree that it is relevant at this stage of the Bill's proceedings if I briefly outline the provenance of the new clause. Interested parties who look at the Order Paper and the amendments might be momentarily puzzled about why such a new clause should have appeared out of the blue, particularly as the Bill has received such support at all its stages hitherto.

In introducing the Bill on Second Reading, my right hon. Friend the Member for Wealden (Sir G. Johnson Smith) said:

The purpose of the Bill is to close a loophole in the Health Service Commissioners Act 1993, which allows general practitioners and others involved in health matters to retire to avoid investigation by the health service ombudsman. For example, GPs who are worried about being investigated by the ombudsman can simply retire from the national health service to avoid answering for their actions.--[Official Report, 3 March 2000; Vol. 345, c. 664.]

19 May 2000 : Column 572

That was a very elegant statement by my right hon. Friend of the aims of the Bill. That elegance, and the persuasiveness of the argument that followed--which I need not repeat or rehearse at this stage--easily persuaded the House on Second Reading that the Bill should receive widespread support.

The fly that appeared in the ointment, however, came later in the debate. The Under-Secretary of State for Health, the hon. Member for Birmingham, Edgbaston (Ms Stuart), said:

May I share some of the Government's concerns? A practitioner may still get off the hook if the time limit is brief, but we have to reach a compromise between what is fair and what is workable for all parties concerned.

The Minister, very fairly, said to the House, even at that stage, that although she was supporting my right hon. Friend's Bill, she had some reservations about it. She went on to say--presciently, if I may say so:

Perhaps the worst aspect of the current situation is that there have been cases of the commissioner beginning an investigation only to have to discontinue it because the practitioner resigns or retires. For example, in a case involving one GP, the statement of complaint was issued, but the commissioner was informed that the GP was due to retire in two months.--[Official Report, 3 March 2000; Vol. 345, c. 698-699.]

There again, we have the statement of the problem as it emerged on Second Reading.

The issue was taken up in Committee. When Standing Committee C convened on Wednesday 29 March, my right hon. Friend reminded the Committee of what the Minister had said. He quoted the hon. Lady's remarks made on Second Reading on 3 March 2000 at column 697:

One of the key elements of any complaints process must be that it is fair to all parties. The proposals in the Bill would potentially leave the practitioners and providers involved susceptible to investigation by the commissioner indefinitely.--[Official Report, Standing Committee C, 29 March 2000; c. 3.]

That is the question before us on Report. Having had that warning of the problem, my right hon. Friend then picked up from the Minister the other aspect of the difficulty, which is where we are. He said that the Minister suggested on Second Reading that there should be a limitation on the time taken to deal with those problems. So it was already acknowledged, by the Bill's Committee stage, that there was a problem about time limits.

Later in the Committee's proceedings, the Minister said:

I made it clear on Second Reading that we should be fair to all parties, but giving the Health Service Commissioner indefinite powers to investigate ex-practitioners did not seem to be fair. I gave notice that the Government would table an amendment to the Bill to introduce a time limit on how long after, for example, a GP had retired, the commissioner should be able to investigate a complaint about him or her.

Then she said, in her fair and even-handed way:

Developing a time limit proposal is not as straightforward as it might seem at first.

I can echo the hon. Lady's sentiments. Indeed, that comment is an understatement. It may be a tribute to the tightness of the Bill's drafting, but I found--and I gather that this was a general experience--that to draft an amendment that would reflect and deal with the problem of time limits within the context of my right hon. Friend's Bill proved remarkably difficult. However, I tabled a new clause, and it has been selected for debate--something of

19 May 2000 : Column 573

a triumph in the circumstances. By doing so, I have managed to put a wedge in the door. I shall shortly refer to the Government's new clauses, which provide a different slant and a different solution to the problem.

The Minister's remarks in Committee helped set the stage for this proposal. What she and my right hon. Friend said has demonstrated that although we were prepared to accept the thrust and principle of the Bill, the fact that the difficulty emerged and was discussed sensibly in Committee and that we are returning to it on Report reflects well not only on my right hon. Friend but on the way in which the process has unwound. The Minister's words go some way towards explaining the matter. She continued:

As I said on Second Reading, we must agree on its length--

that is, the time limit--

and we have discussed that point with the commissioner. Whatever period we decide on, we must work through the question of when we start the clock. How will we deal with someone who has been out of NHS practice for more than the agreed period, but who decides to rejoin? How will we make sure that we catch all types of independent provider, from the sole proprietor of a small nursing home to the big company with a string of private hospitals?--[Official Report, Standing Committee C, 29 March 2000; c. 5-6.]

The Minister posed that question in Committee. In these proceedings, we must judge how far my modest little provision or the Minister's mega new clause 5 can deal satisfactorily with the problems. That aspect of the background is relatively clear.

My new clause and the Minister's take somewhat different approaches to the matter. Mine was deliberately simple and straightforward. The key question is whether it will deal with the problem as comprehensively as it should. It states:

Complaints may be made under section 3(1) of the Health Service Commissioners Act 1993 . . . for a period not exceeding three years following the retirement or resignation from the National Health Service of the person who is the subject of the complaint.

I shall come to the Minister's new clause 5 in a moment--strictly speaking, it is the Secretary of State's new clause, but I shall attribute it to the Minister for the purposes of the debate; she was probably its author. It is a genuine coincidence that both new clauses would set a time limit of three years.

Mr. Andrew Dismore (Hendon): The right hon. Gentleman may not have had the chance to read my new clause 7. That too provides for a limit of three years, but with quite a few exceptions.

Mr. Forth: I was looking forward with great anticipation to hearing the hon. Gentleman explain his new clause. I am not a lawyer and it appeared slightly opaque to me--I hope he will take that comment in the spirit in which I offer it. It will be interesting to compare the new clauses.

However, as I had not--and could not have--read the Minister's new clause before I tabled mine, I searched for the reason why we had both come up with the same period. The only explanation that I could think of was that, as I had spent almost nine years in government, I had perhaps absorbed, through a form of osmosis, the thought processes that occur in a Department--the excellent briefing and support that Ministers receive from their

19 May 2000 : Column 574

officials and the options that are examined. Even after so long out of government, perhaps enough of that is left in me that I homed in on the same period that the Minister has much more scientifically come up with. It is a warming coincidence that we find ourselves so readily in agreement on this occasion. That comforts me, because knowing as I do the exhaustive process by which the Minister will have reached that conclusion, it bodes well for the debate and for the conclusion at which, I am sure, we shall readily arrive.

Needless to say, although we have arrived at the same period, there are differences in the way in which we did so. My approach was deliberately simple. The Minister's new clause refers to the original measure--the Health Service Commissioners Act 1993. Significantly, section 9(4) states:

The Commissioner shall not entertain the complaint if it is made more than a year after the day on which the person aggrieved first had notice of the matters alleged in the complaint, unless he considers it reasonable to do so.

In that sense, a time limit had already been built into those provisions. We are now considering a different time limit in order to give different protection. I am not aware that the original limit has been disputed. It must surely be reasonable that, if someone has a genuine complaint, it should be brought to the attention of the commissioner within a reasonable time limit--one year, in that case.

We are discussing whether practitioners should be left vulnerable to complaints for an indefinite period. There is a balance of argument. My right hon. Friend the Member for Wealden may originally have had it in mind that to set any time limit might, in some circumstances, act against the interests of the person wanting to make a complaint. That is a reasonable starting point. That argument may well be rehearsed during the debate. We must not rush in without giving it full consideration.

However, the discussions on Second Reading and in Committee identified another problem--the other side of the coin. We must achieve some balance and even-handedness between the reasonable rights of the person making the complaint and the person complained against. That is where the judgment as to time inevitably comes in. What is a reasonable amount of time in which to allow a complaint to be laid, while not leaving people vulnerable to complaints for the rest of their lives? That could be the case if we do not amend the Bill.

---