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Mr. Dismore: I am grateful to my hon. Friend. That would arise only if someone undertook a judicial review case against the ombudsman for failing to investigate a complaint. In practice, that would never happen. The court would have to be satisfied that the ombudsman had acted unreasonably. Bearing in mind how the Limitation Act 1980 has been construed in the past, that would be unlikely. Going to court for that purpose would be tantamount to throwing out the baby with the bath water. It would be simpler to litigate the original issue.
Mr. Miller: I am grateful to my hon. Friend. I assume that the same logic would apply, whichever clause we adopted. My hon. Friend nods: I am grateful for the free legal advice that I am getting. [Interruption.] It is not free from the Opposition, I hear.
My hon. Friend raised an interesting point about new clause 6 and the transitional arrangements. I know that he has dealt with extremely difficult cases in his previous life. He makes a fair point, which the Minister should consider. She should explain how we can avoid the pitfall that my hon. Friend described in the context of legislation on other matters. Perhaps the Government new clauses provide the answer because they would allow the ombudsman to determine whether to deal with complaints that had not avoided the pitfall. To achieve that, we must be sure that the amendments and existing laws that govern
I appreciate that some cases, which led the right hon. Member for Wealden to introduce the Bill, are in a vacuum. However, I hope that we will receive an explanation of the point that my hon. Friend the Member for Hendon raised because of his detailed experience of other matters.
My hon. Friend also raised a difficult point for all of us who are parents: the rights of our children when they are children and those they gain when they reach the age of 18. The problem is tortuous and even more complicated in cases of complaint against the health service. The evidence necessary to sustain a complaint disappears with time. The scientific evidence showing that a complaint should have been lodged on someone's behalf 18 years ago may become stronger as our knowledge of medicine increases, but the key witnesses--doctors, nurses, visiting relatives--get older and frailer, or move and become untraceable. The medical staff retire or leave the profession. That poses problems. Some logical limit should therefore be placed on rights. Responsibility should be vested in the parents; we should not simply leave the door open.
The Government are anxious to ensure that money is spent wisely in the health service and directed towards patient care rather than long, bureaucratic and legalistic procedures. If cases such as those that my hon. Friend the Member for Hendon described were open to the commissioner, they could place an intolerable burden on the sort of investigation the commissioner might undertake. I therefore counsel my hon. Friend to reconsider, not on the basis of absolute justice for specific cases, but of practicality. We have to deal with the realities of the circumstances.
In 10 or 20 years' time, we may be able to reconsider if methods of recording information and holding scientific data improve. However, we are considering cases in which the patient will often have changed doctors, and have been treated by different specialists. Historically, records have not been well kept, although some GPs and hospitals are exceptionally good at keeping them.
I shall put a specific case that I know well to my hon. Friend the Member for Hendon. A young person had a series of operations at 14 months because of the failure of a paediatrician to undertake normal checks in the proper manner at birth. That may possibly be a justifiable case in my hon. Friend's legal opinion. If the parents decide not to litigate when the child is very small, should the child have the right to pursue the case when it has grown up? That is a difficult judgment to make, especially when the knowledge about the effect of the condition has also changed with time.
Mr. Dismore: When the child reaches the age of 18, he or she has the right to go to court because the limitation period for common law starts from the age of 18. New clause 7 would provide an alternative remedy and enable the parents or child to go to the ombudsman instead of the courts. If my hon. Friend's remarks are taken to their
Mr. Miller: I am grateful for that comment. While I understand and sympathise with my hon. Friend, I am speaking of a genuine case. I am worried that the ombudsman would be confronted with an intolerable burden because the scientific knowledge of the consequences of the doctor's action has changed dramatically. That must be true of several cases.
Some complaints are high profile--for example, those of lack of advice on inoculation. In the 1950s, some young people developed polio. However, at the time, medical knowledge was different. Nowadays, those who are not offered the sugar lump containing the magic medicine are few and far between, and if a few do not receive it, it is usually as the result of a deliberate act by the parents. It would be intolerable to involve the ombudsman in such a difficult philosophical argument. If such cases were justified, they would be exceptional and should be subject to litigation.
I am not trying to remove a human right from a child. My hon. Friend the Member for Hendon might say that I am wrong in view of recent European legislation. However, I am trying to be practical in considering the role of the ombudsman. We all want resources to be directed to the management of patient care; we want only minimal use of the procedures for the ombudsman and for litigation to deal with the exceptional cases about which we all hear from our constituents from time to time.
In principle, I am in favour of a time limit. It struck me as amusing that my hon. Friend the Minister and the right hon. Member for Bromley and Chislehurst plucked a similar time limit out of thin air. I shall investigate that. The right hon. Gentleman has either got on to the inside track in the health service, or, as he said earlier, the process of osmosis continues and the logic of the case that officials presented to my hon. Friend is the same as when the right hon. Gentleman was a Minister. I congratulate the officials on persuading my hon. Friend the Minister to adopt the proposal.
Such a time limit should be set, but I ask whether there should be exceptions to it. I hope that my hon. Friend the Minister will deal with the concerns that my hon. Friend the Member for Hendon, the right hon. Member for Bromley and Chislehurst and I have expressed, because we are all on the same side. We want to ensure that the loopholes are closed satisfactorily, that complaints can be made and dealt in a non-legal manner where appropriate and that the rights of the individuals are protected for as long as necessary--in the circumstances described by my hon. Friend, for example.
Mr. Collins: I have a couple of brief points to make. My hon. Friend the Member for Runnymede and Weybridge (Mr. Hammond) and the hon. Member for Ellesmere Port and Neston (Mr. Miller) have made some important remarks about new clause 7, which was tabled by the hon. Member for Hendon (Mr. Dismore). As I listened to the hon. Gentleman's speech, however, I found myself agreeing with him, which I have not done for three years: he made some good points.
My constituency case is directly relevant to determining whether the time limit should constitute an absolute three-year cut-off after a practitioner has left service or whether, as the hon. Member for Hendon said, the opportunities available in common law should apply, enabling the victim to take action after the information has become available to them.
More than 20 years ago, a chemical called Myodil was injected into my constituent's spine. Many of those who have had such an injection have subsequently suffered from adhesive arachnoiditis--a terrible condition that has rightly been described as involving all the pain of terminal cancer without the prospect of relief. My constituent was not told that that was the cause of her back problem for 20 years; successive medical practitioners said that it was associated with the condition of her spine. By obtaining copies of the medical notes, she found out that, as far back as the early 1970s, doctors had written that she was suffering from adhesive arachnoiditis, but for nearly two decades they did not tell her that that was the cause of the excruciating pain in which she has lived.
As the hon. Member for Hendon said, someone in those circumstances would have the right to take legal action, but my constituent has repeatedly made it clear that she is not interested in seeking large sums of compensation. She realises that nothing can be done to end that appalling pain, which has completed destroyed her life and means that she can walk only with extreme difficulty. The life that she previously led as an active tennis player has been ended. She wants an investigation into what occurred to be undertaken and published, which would be a more proper role for the ombudsman. It would be difficult for an ombudsman's inquiry to go back over such a period, but I would not want us lightly to pass a law that would make that impossible in all circumstances.