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10.45 am

Angela Smith: The point that the hon. Gentleman highlights gives me great cause for concern. Is he suggesting that a doctor could avoid investigation by withholding from the patient the information that would allow that patient to take a case to the ombudsman?

Mr. Collins: I am sure that the hon. Lady would agree that this is an exceptional case. There are many medical people in my family, and I know that such events do not happen routinely or in other than a tiny minority of cases. However, I am concerned that the Bill and the new clauses tabled by my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) and by the Minister could allow a medical practitioner, who would be the rare rotten apple in the barrel, to keep information from a patient for long enough--three years, in this case--to make an ombudsman's inquiry impossible.

Such a case is less likely now because there is much wider access to medical notes and we live in an era in which such a cover-up--if that is what occurred--would

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be much more difficult to undertake. We must consider whether we should enable the ombudsman to investigate such circumstances.

Mr. Miller rose--

Mr. Hammond rose--

Mr. Dismore rose--

Mr. Collins: I give way to the hon. Member for Ellesmere Port and Neston.

Mr. Miller: There are many such cases, but they have two aspects. The hon. Gentleman must decide whether he wants to obtain justice on the treatment that the person received or on the subsequent withholding of information, which might have been done by entirely different people. It might be a rather old-fashioned view, but some doctors think that it is in the patient's interest not to give them certain information. We sometimes hear about that in cancer care, for example. I am unsure whether the hon. Gentleman is being swayed by the withholding of information or by the care that the patient received in the first place.

Mr. Collins: The hon. Gentleman makes an important point. A distinction can be made between the two. In the circumstances that I described, the initial problem, on both counts, stemmed from the same practitioner. In the early 1970s, it was standard medical practice for that chemical to be injected into people's spines so that it showed up on X-rays. It would not be legitimate to complain to the ombudsman about that practice because the medical practitioner did nothing unusual. Although scientific evidence of its effects existed abroad, they were not widely known in the United Kingdom. An ombudsman should be able to consider the fact that successive medical practitioners did not accurately inform my constituent of her condition, even if a lot more than three years had passed before the patient had access to the information that proved it.

Mr. Hammond: My hon. Friend seems to suggest that new clause 7 would broaden the opportunities for reference to the ombudsman, but, compared with the new clauses tabled by the Secretary of State, it would be restrictive. It is important to recognise the distinction between complaints against a hospital or a trust, which is an on-going, surviving institution, and those against an independent medical service provider, who may resign from the system and, therefore, escape jeopardy. I should not like my hon. Friend to fall into the trap of thinking that the hon. Member for Hendon wants to broaden the scope for reference to the ombudsman.

Mr. Collins: I am grateful to my hon. Friend for making those important points. The hon. Member for Hendon wanted to intervene a moment ago, so I give way to him.

Mr. Dismore: For the reasons that I gave, new clause 7 would broaden current custom and practice. However, the new rights to access to records do not apply to those written before the current law came into effect. The hon. Gentleman's constituent might have experienced that

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problem; she may not have had a legal right to see her records. Access to records can be problematic because doctors can levy fees--

Mr. Deputy Speaker (Mr. Michael J. Martin): Order. The hon. Member for Westmorland and Lonsdale (Mr. Collins) has raised an important and serious matter regarding his constituent, but the proposal is narrow and refers to a time limit. We should restrict ourselves to that issue.

Mr. Collins: I respect your ruling, Mr. Deputy Speaker. The issue is whether the time limit in which the ombudsman can inquire into a case should be three years. I have established the point, and I should be grateful if the Minister would say a few words in response to the points that her hon. Friend the Member for Hendon and I have raised. Are there any circumstances in which it would be legitimate for an ombudsman to look into a case that was outside the three-year time limit that she proposes--for example, where it was perfectly clear to everyone that the complainant could not have brought a complaint within the time because they did not have access to information about the subject of the legitimate complaint until afterwards?

I referred to the other point that I want to raise in my intervention on my right hon. Friend the Member for Bromley and Chislehurst. Although the hon. Member for Hendon addressed the issue, I confess that, not being a lawyer, I am not entirely satisfied that it has been properly covered. There is a distinction between the Minister's new clause 5 and my right hon. Friend's new clause 4. New clause 4 refers to


New clause 5 refers to a period of three years


I am willing to be guided by hon. Members with greater legal expertise than me, but it seems to me that there is a distinction, and that it is possible to cease to be a practitioner in the NHS for reasons other than retirement or resignation, both of which strike me as voluntary acts. A person could cease to be a family health provider because he has been struck off, and that is an involuntary act. The definitions are therefore different.

If they are different, that has different implications. From what my right hon. Friend said, it may not have been the intention of the wording of his new clause, but it would have the practical effect of not giving a three-year cut-off point in the case of a practitioner who had been struck off, whereas the Minister's new clause would give a blanket three years whatever the circumstances that led to someone departing the NHS.

As ever, there are arguments on both sides. I am quite attracted by the proposition that a practitioner who has been struck off because they have been found by their peers to have been in fundamental breach of their obligations to the national health service and to their patients should not be entitled to the same time-limited

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protection available to GPs who have not been found guilty of an offence so serious that it leads to their being struck off. Although there are difficulties, I have some sympathy with the view that there should be a longer period in which complaints can be brought against practitioners who have committed acts so serious that they have been struck off.

Angela Smith: Does the hon. Gentleman consider it an appropriate remedy for someone who has been struck off to be investigated by the ombudsman? What confidence would that give to the patient? Would it not be a better remedy to ensure that someone who has been struck off cannot be reinstated on the medical register?

Mr. Collins: The hon. Lady may be right, but that is beyond the scope of the Bill, although I have some sympathy for her view. I would put it the other way round. The likelihood is that the person who wanted to bring a complaint against a practitioner would be entirely unconnected with the case that had led to that practitioner being struck off, but would be prevented from bringing the complaint because of the three-year time limit. Such a person may come to any one of our constituency surgeries and say, "For heaven's sake. This practitioner was struck off, and you are telling me that I can't bring a complaint to the ombudsman because he got away with it for three years."

Mr. Miller: It seems that the hon. Gentleman is agreeing with me and not with my hon. Friend the Member for Hendon on the question that I posed to the Minister. In establishing time limits, there must be exceptions so that the ombudsman can use his good sense to allow complaints to be investigated outside the time frame. The question is whether the existing legislation gives the ombudsman powers in such exceptional cases.

Mr. Collins: The hon. Gentleman has made an exceptionally helpful point, and it prefigures what I was about to say. One thing that we most sensibly do when we legislate is to give discretion to the people who have to implement the legislation that we have passed, whether it be the courts or an ombudsman who has to resolve the special cases, the difficult circumstances, and the unusual cases. The ombudsman should be given discretion within clear guidelines, so that it is clear that it could not be used widely or in any way other than to cover exceptional cases. That would be desirable, and would perhaps enable the ombudsman to investigate cases that come before him well outside the three-year period for understandable reasons. It would also enable us to address the issue of someone who had been struck off.

The hon. Gentleman makes a powerful case, and I hope that the Minister will address that and the other issues that have been raised, either in her remarks on this group or in her later comments. The ombudsman is a well trusted and well respected official, and is likely to be so for as far into the future as we can foresee, whoever he is. There is a case for giving him some discretion to enable him to look into the circumstances of a case and to take the view that, as it is on the borderline, it would be sensible to bend the rules a little to ensure that natural justice, which is what we are all concerned about, is pursued.

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