| Previous Section | Index | Home Page |
Angela Smith (Basildon): I wish to make a tangential point on which I would be grateful for my hon. Friend's advice. Does he accept that the time limit is not the only reason why people prefer to go to court rather than to the ombudsman? The other factor is the ombudsman's limited power. If we strengthened that power, more people would take their complaints to him in the first place.
10 am
Mr. Dismore: I am grateful to my hon. Friend, with whom I agree. That was an issue that I had hoped to address on Second Reading and in amendments that I tabled for today's debate but which, unfortunately, were not selected. I may therefore address it in our debate on later amendments. She makes a cogent and important point: the stronger the powers of the ombudsman, the less likely people are to regard going to court as their only remedy.
We must therefore try to ensure that the time limit in the Bill does not provide a less effective remedy than going to court. No one disputes that we need a time limit. However, we must balance the needs of the complainant and the health service provider in determining where to set that limit. If we do not get that right, people will simply start to sue.
Before I go into the detail of my new clause, I point out that the health service commissioner thinks that a three-year time limit would be appropriate because it would tie in neatly with existing limitations on civil litigation. Of course, the Government new clause and that tabled by the right hon. Member for Bromley and Chislehurst would not do that, as they would not provide for the fine tuning that exists in civil litigation. Indeed, they would provide a somewhat blunter instrument, as they simply set the limit at three years--take it or leave it. My proposal is more sophisticated and would allow for a series of eventualities.
There is a key distinction between my new clause and those of the Government and the right hon. Gentleman, which apply the time limit after the retirement or resignation of the doctor concerned. Effectively, the doctor could face proceedings up to three years after he had retired or resigned. My new clause involves a more general time limit, which would apply whether or not the doctor had retired. It uses the word "notwithstanding". By contrast, the right hon. Gentleman's new clause states:
- following the retirement or resignation,
- after the last day on which
My new clause would therefore address the position of someone being struck off, which was raised by the hon. Member for Westmorland and Lonsdale (Mr. Collins). My new clause is all-embracing and would catch all doctors in all circumstances, notwithstanding their resignation or retirement. The Bill excludes some people, but my new clause would bring them into the fray.
Mr. Hammond: The effect of the hon. Gentleman's new clause would be considerably to tighten the scope for an individual to bring a complaint to the ombudsman in all circumstances. Is that his intention?
Mr. Dismore: My intention is to try to equate the powers of the ombudsman with those that apply to the courts. In practice, my new clause would not have the effect suggested by the hon. Gentleman because the ombudsman already operates an unofficial one-year limit on complaints. My new clause would give complainants and doctors subject to complaint greater certainty about where they stand. It is a question of striking the right balance between the two parties.
The logical conclusion to be drawn from the hon. Gentleman's comment is that until his retirement and, indeed three years after that, a GP could be open to complaint about an event in the early years of his practice as a young trainee GP. If he was in his early 20s at the time of the event, he could be open to complaint for 40 or 50 years. That cannot be right. However one regards the situation, a limit must be applied. I believe that three years is the correct period, with appropriate exceptions being built into the system.
Mr. Hammond: Surely the logic of what the hon. Gentleman said about the ombudsman operating an unofficial one-year limit on complaints is that we are wasting our time discussing the matter?
Mr. Dismore: The Bill and the Health Service Commissioners Act 1993 do not specify a time limit. The ombudsman operates an unofficial one-year time limit as custom and practice, but a future ombudsman may decide to operate a completely different system, and the period may be shorter or longer. It would therefore be appropriate to incorporate a time limit in the Bill. My proposal would achieve that objective and cover all doctors. It would provide protection and strike the right balance for those doctors who have ceased to practice, whether as a result of retirement, resignation or another reason, such as being struck off.
The meat of my new clause is that the time limit on complaints should be the same as that applying to an action for clinical negligence in common law. The normal time limit is three years, but there is a series of exceptions to that, which should be incorporated into how the ombudsman will operate. The first exception affects children.
At the moment, a complaint involving a child can be brought only within three years of an incident. However, in common law, the three-year time limit applies from when the child obtains the age of majority. A child may have a grievance that his or her parents decide not to take up with the ombudsman. Nevertheless, the child may feel strongly about that grievance and, when he or she reaches the age of 18--notwithstanding the fact that it may be more than three years since the incident--is empowered to bring a complaint to the ombudsman. In common law, that child would be entitled to bring an action for damages for clinical negligence. It is important to ensure that a complaint to the ombudsman does not disadvantage children, given that they have rights in common law to bring an action for clinical negligence.
Secondly, the three-year time limit applies either from the date on which the cause of action, meaning the matter of complaint, accrued in common law or--this is an important exception--to a later date on which the injured person gained knowledge of his or her injury. In many medical negligence cases, people do not immediately realise that they are victims of malpractice. They do not realise what has gone wrong, so they go to another doctor, and it takes for ever to find the cause of the problem. Eventually, some years later, they may find that a surgeon has left a piece of equipment inside them or taken the wrong bit out. It sometimes takes a long time to determine such issues.
In common law, section 14 of the Limitation Act 1980 sets out the factors that apply to the date of knowledge. It deals with factors relevant to the date of knowledge of the
complainant, or the claimant as he is called now, following the change of terminology in last year's civil justice reforms--although the Act predates those changes and refers to the plaintiff. Those factors include
- that the injury in question was significant; and that the injury was attributable in whole or in part to the act or omission which is alleged to constitute . . . breach of duty;
- the identity of the defendant.
- includes knowledge which he might reasonably have been expected to acquire . . . from facts observable or ascertainable by him; or . . . with the help of . . . appropriate expert advice which it is reasonable for him to seek.
Mr. Hammond: I must interrupt the hon. Gentleman because he said that we all agree that the standard three-year time limit is appropriate, but he is proposing a very different three-year time limit from that proposed by the Government and my right hon. Friend the Member for Bromley and Chislehurst. I am not at all sure that we have established that there is a consensus in the House that a three-year time limit from the event is appropriate.
Mr. Dismore: I am grateful to the hon. Gentleman for clarifying the position of the Opposition. Perhaps I should have said that we all agree that a three-year time limit is appropriate, but that we may disagree on where it should kick in.
The important point is that we need a series of exceptions to the rule. There will always be exceptions, and if we do not provide a degree of common sense about when people know or do not know that they have been injured, we run the risk of creating injustice and forcing people to seek alternative remedy to the NHS ombudsman in the courts.
The catch-all provision in section 33 of the Limitation Act provides a general discretion, notwithstanding all my points about section 14 on the definition of the date of knowledge. Such a discretion is important. It empowers the courts in civil litigation and, should my amendment be accepted, the ombudsman in the case of a complaint, to exercise a degree of common sense.
If it is equitable to allow a case to proceed, the courts can permit it to do so depending on the degree of prejudice suffered by either side. The court may consider: whether there are good reasons for delay of the complaint; the evidence available and whether it continues to be cogent or has become weaker through the passage of time; the conduct of the parties and the extent to which, for example, requests for information from the patient to the doctor were properly and promptly answered; the extent to which the claimant acted promptly once he knew all
the relevant facts; the steps that the claimant had taken to obtain the necessary medical or other expert advice; and the nature of the advice received. All those factors relate to the general equity of deciding whether a complaint should be permitted.My new clause would strike a fair balance between the rights of claimants and doctors. Doctors would know that, in normal circumstances, there would be a three-year time limit for a complaint, irrespective of whether they stay in the profession or leave for whatever reason. On the other hand, claimants would know that they had to get their skates on to ensure that the complaint was brought within three years. The new clause would also provide a general series of commonsense exceptions to the rule, which would apply to cases in which, for example, the claimant simply does not know, for whatever reason, that they have been injured, and ultimately a general discretion under which it would be fair to extend the time limit.
| Next Section
| Index | Home Page |