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Mr. John Heppell (Nottingham, East): I am not convinced of the value of any of the new clauses. The person with whom I most agreed was the hon. Member for Westmorland and Lonsdale (Mr. Collins). He is right and wrong. It is not a question of giving the health commissioner discretion: he already enjoys discretion. The problem with the new clauses is that they would take that discretion away from him. I cannot see any way round that. If a fixed period of three years is written into the Bill, it will restrict the commissioner's discretion.
Like many other hon. Members, to try to figure out what the right process should be, I looked back to the purpose behind the setting up of the post of health service commissioner. I read the Library's research paper of 8 December 1995 on the Health Service Commissioners (Amendment) Bill. It contains an interesting section written by the then health service commissioner for England, W. K. Reid, who said:
A person may not make the initial complaint until almost a year has gone by. The first stage of the complaints procedure should be fairly quick, but it can sometimes be delayed for several months. If the complainant is not happy with the first stage, he goes on to the second stage, which is the independent panel, and that can also take several months to work through. In practice, a case involving the health service commissioner goes on for 18 months to two years or beyond that.
I understand that the commissioner is now saying that he does not want a limit of less than three years, because that would restrict his discretion to act more than one year after the event. He has said that he feels he would be unlikely to want to exercise his discretion to investigate events that occurred more than three years previously, but "unlikely" is not the same as "definite". I would want the ombudsman to investigate the sort of cases mentioned by the hon. Member for Westmorland and Lonsdale, and I am sure that the general public would as well. I recognise that there must be some limit, and I would like it to be included in guidance to the ombudsman; but I do not think that it should be a set, regular limit.
All Members will have been consulted by people with limited information about a problem that arose 10 years earlier. It is often difficult to explain that there is little that one can do oneself, little that the courts can do and, indeed, little that anyone can do about a problem that arose so long ago. People's memories are not so good after such a long time has elapsed, and records get lost.
Recently, when I was clearing out some old papers that I thought were just rubbish--council documents--I found a load of personal casework that I had done for people. I had to bring it here to shred it. I was going to chuck it in the bin, but I suddenly realised that I could not do that, because it contained a lot of confidential information.
Let us suppose that I had destroyed that information. Someone might have come to me five years later--as we all know, this sometimes happens--and said, "I have no papers, but Dr. Such-and-such will have the records," or "I gave the citizens advice bureau a copy."
Angela Smith: I am slightly confused by what my hon. Friend is saying. On the one hand, he seems to be rather against the new clause; on the other, he seems to be giving a very good reason for a three-year time limit.
I was going on to say that, although we find cases such as I have mentioned frustrating, we also find cases unconnected with the health ombudsman--for instance, immigration cases and cases relating to the Department of Social Security--frustrating when a limit applies. Often, a member of the legal profession has forgotten to register a case on time. People come to me and say, "I am sorry; I have exceeded the limit by a week, but it is the solicitor's fault, not mine. What can you do about it?" I have to tell them that I can do nothing.
Mr. Heppell: I am always reluctant to tell my constituents to become involved with the legal profession. My experience of their involvement with the legal profession is not good. I mean no disrespect to certain Members who may be present, but I do not hold the legal profession in the highest regard, to be honest. In many instances, its members have not served my constituents well.
The right hon. Member for Bromley and Chislehurst (Mr. Forth) managed to put the arguments against his new clause much more coherently than I could. I think he accepted that there were difficulties with it. My hon. Friend the Member for Hendon (Mr. Dismore) put the case for his new clause much more robustly. I realised last night that this was a complicated issue, but it became more and more complicated as my hon. Friend went on talking. I think that good law should be easy to understand.
Angela Smith: This may be a slightly tortuous point, but might not the fact that my hon. Friend the Member for Hendon (Mr. Dismore) is making the issue more difficult have something to do with the fact that he is a lawyer?
I understand that the purpose was to provide more flexibility, but it has become a case of "There is this exception, and there is that exception, and if all else fails we can refer to section 33, which gives us a general dispensation." Why have all that, when we can have a general dispensation in the first place? We can say to the ombudsman, "You have the discretion, but if you are to exceed the three-year limit you will have to be able to justify that--because there are exceptional circumstances, or perhaps because this is a case of such enormity that the
I disagree with new clause 7, and I am afraid that I disagree with new clause 4. I also remain to be convinced by the Minister that anything in the Government new clauses allows the discretion that the health service commissioner now has to be exercised in the future. I find it difficult to accept what I see as a weakening of the ombudsman's position. To weaken the ombudsman's position is to weaken the position of my constituents. There will always be people with genuine complaints that have failed at stages 1 and 2; the ombudsman will provide them with their last chance before they must consider the possibility of legal action. I want the ombudsman's position to be strengthened.
Mr. Hammond: I think that most of us, apart from the hon. Member for Nottingham, East (Mr. Heppell), agree that it is necessary to introduce some time limit on the jeopardy that practitioners face. That view was widely held on Second Reading and in Committee.
We have all been looking forward to the new clauses tabled by the Minister, and to have an opportunity to examine the criteria that she has selected. We have also been given that opportunity by the hon. Member for Hendon (Mr. Dismore) and my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth), whose new clauses head in the same direction, but deal with the matter in a slightly different way.
We are seeking to balance two opposing imperatives: protecting practitioners from an open-ended jeopardy, and the individual's right of access to the complaints system and, ultimately, to the health service commissioner. In amendments or new clauses that place a limit on the time within which a reference can be made to the commissioner, we must strike the right balance to ensure that the system is fair to everyone.
As the debate has ranged rather widely, we are slightly in danger of losing sight of the fact that we are talking primarily about people providing general medical, pharmaceutical or dental services. We are not, in practice, talking about complaints arising from the kind of procedures that take place in hospitals. Health authorities and NHS trusts are continuing, surviving bodies; they do not, in the normal course of events, cease to provide services as a general medical or dental practitioner may. We are addressing ourselves primarily, and in practical terms, to complaints that arise in relation to general practitioners.
At the beginning of his speech, the hon. Member for Hendon emphasised the fact that the national health service commissioner represents only the third tier of a three-tier complaints system in the NHS. The key issue is when the clock starts ticking. There are two clear options, and possibly a third. The hon. Member for Hendon would have the clock start ticking at the moment when the event that gives rise to the complaint occurs, or, in exceptional circumstances, later, when knowledge of the alleged problem, or the cause of the complaint, comes to light--or when the person making the complaint reaches the age of majority.
Under the Government's new clause and, I think, the new clause tabled by my right hon. Friend the Member for Bromley and Chislehurst, the relevant point of time would be the point at which the complaint is made to the ombudsman. The clock would start to tick on the day when a practitioner ceased to provide medical, dental or pharmaceutical services. The time when the complaint to the ombudsman was made would be the point of reference in measuring whether the three years had elapsed. I have suggested a third possibility: the relevant point should be that at which the complaints procedure is embarked upon--the point where the individual first takes a practical step to seek redress for the alleged injustice.
Essentially, that is a practical point. What concerns me is that the national health service complaints procedure at the first and second tiers takes a certain amount of time to exhaust itself. I know from constituency cases of my own--other hon. Members will, I am sure, have had the same experience--that, often, if a perceived injustice--or maladministration as we should perhaps properly call it--in the NHS goes hand in hand with a traumatic experience, perhaps the loss of a relative, it may be some time before people feel able to confront that issue.
In the past couple of years, I have dealt with constituency cases where people have come to me a full year after events have taken place, having got through a bereavement period, gone back, looked in a slightly different light at what happened--perhaps in a slightly harder-nosed way--and perceived that something went wrong when the process was carried out within the hospital, or by the general practitioner. Therefore, it may be a year or so before an individual kicks off the complaints process at the first tier.
What I do not know--I hope that the Minister might be able to throw some light on it--is the average length of time taken for the NHS complaints procedure at the first and second tiers to exhaust itself. The hon. Member for Hendon suggested that it could be a year or two. If so, we could, at least theoretically, find that if a complainant started the first tier of the procedure a year or so after an event occurred, and the complaints procedure at the first and second tiers took a year or two to exhaust itself, he would no longer be able to take his complaint to the ombudsman if, in the extreme example, the practitioner in question had left the service the day after the occurrence that gave rise to the original complaint.
That might be an extreme circumstance, but it is important for us to be reassured that a three-year period to the point at which a reference is made to the ombudsman is the right time limit, will not unreasonably or unfairly exclude anyone who has gone through the whole process of the NHS complaints procedure reasonably and sensibly, and will allow for the fact that people who have suffered bereavement may take some time before they feel able to address the issue of bringing a formal complaint in the first place.