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11.15 am
The hon. Gentleman would start the process from the date of the occurrence and would bring the process into line with the practice of common law. That has a superficial attraction--the alignment of the NHS complaints procedure timetable with the timetable in cases of clinical negligence--but it seems that we are dealing with two different issues.
The legal processes will deal with cases of clinical negligence. The health service commissioner is there to deal with cases of "maladministration and service failure". Those will not always involve clinical negligence, but they may involve issues that perhaps give rise to wider public interest: issues of public concern about how hospitals are run and managed, and how procedures are controlled within hospitals.
The hon. Member for Ellesmere Port and Neston (Mr. Miller) gave an example of a hospital carrying out a procedure while having run out of a drug that might reasonably be needed during that procedure. The hon. Member for Hendon intervened to indicate that that would not be a ground for a claim for clinical negligence, but it might be a ground for a claim of maladministration. It may be something that hospital managements in general wanted to review to ensure that drugs that might be needed during a procedure were in place before it started.
My real concern about the new clause tabled by the hon. Member for Hendon is that it is much more restrictive than the new clauses tabled by my right hon. Friend the Member for Bromley and Chislehurst and by the Secretary of State, in that it would include within its scope--the time limit will normally be three years--not just cases relating to practitioners who had left the service, but all cases relating to practitioners who remained in the service and, indeed, cases relating to incidents that arose in hospitals, where the complaint was against the hospital trust, or perhaps the health authority.
In seeking to tighten the scope of the health service commissioner, the hon. Gentleman is going well beyond the original intentions of my right hon. Friend the Member for Wealden (Sir G. Johnson Smith) when he introduced the Bill. I am not sure that we would think such a measure helpful. My reading of the debate so far today, in Committee and on Second Reading is that there is no consensus in the House that we need to tighten the procedure to make it more difficult for people to bring complaints to the health service commissioner.
In his defence, the hon. Gentleman argued that it is custom and practice--one of those phrases that I have learned that lawyers use when there is no other cover available to them--that the present ombudsman will choose to look at cases only if they are brought to him within a year of the occurrence of the event. I do not know whether that is the case or not. As he said, future occupiers of the ombudsman post may choose to look differently at that, but if we are to base what we do today on the argument that it is the custom and practice of the ombudsman not to consider cases arising out of events that occurred more than one year ago, there will be no point in passing any of the new clauses. They would all be redundant. Therefore, we must ignore the current custom and practice of the ombudsman, look at what he is legally empowered to do and how we are seeking to amend those legal powers.
I ask the Minister to clarify one other small point. I apologise if it is something that has already been mentioned during deliberations on the Bill. Can she confirm that, in relation to the Health Service Commissioners Act, the term "family health service provider" includes both a person providing general medical services and a person providing personal medical services, so that the both types of family health services providers are covered?
I hope that the Minister will also be able to tell us whether the Government have any more general intentions of changing and strengthening the NHS complaints procedure, perhaps in ways that address some of the issues raised today particularly by the hon. Member for Hendon.
It seems to me that that analysis inevitably leads to the conclusion that the mood in the House does not favour new clause 7--leaving us to consider new clause 4 and new clause 5.
My hon. Friend the Member for Westmorland and Lonsdale (Mr. Collins) made a persuasive case for considering new clause 4--tabled by my right hon. Friend the Member for Bromley and Chislehurst--to be superior to the Government's new clause 5. The latter would, after three years, exclude from jeopardy all practitioners leaving the health service, whether voluntarily by retirement or resignation, or involuntarily by removal from the register. New clause 4 has the benefit of discriminating between practitioners who had of their own volition left the service--perhaps, but not necessarily, to avoid scrutiny by the ombudsman--and practitioners who had been removed from the service because their conduct had caused serious concern.
I think that there is a case for distinguishing between the two classes of practitioners, and that new clause 4 would make it possible, beyond the three-year period, to subject to investigation a practitioner who had been removed from the register perhaps as the result of another, previous case. Superficially at least, that seems to be an attractive proposal. If the Minister is not attracted by the distinction to be drawn between practitioners who have left the service for natural or voluntary reasons and those who have left by expulsion, I should be interested to hear why she thinks that it is not appropriate to draw that distinction.
It is, of course, for my right hon. Friend the Member for Bromley and Chislehurst to decide whether to press new clause 4, or to seek leave to withdraw it and allow the Government's new clause 5 to proceed. Nevertheless, I hope that, if he decides to seek to withdraw his new clause, he will press the Minister to explain how she will deal with that important distinction between new clause 4 and new clause 5.
The Parliamentary Under-Secretary of State for Health (Ms Gisela Stuart): I congratulate the right hon. Member for Bromley and Chislehurst (Mr. Forth) on his thoughtful observations. Although new clause 4 is elegant, we may not be able to support it fully. Nevertheless, it is clear that great minds think alike, although the means of achieving the shared objective may be open to debate.
Throughout our consideration of the Bill, we have regarded its purpose as being purely to close the loophole in relation to family health service practitioners and independent providers. New clause 4 would limit the remit of the health service commissioner, albeit in a small way, in relation to health service bodies. Therefore, I do not think that it would be appropriate to accept the new clause. I shall attempt to explain in more detail why we think that it should be rejected.
As some hon. Members have said, the health service commissioner has powers to investigate complaints about failures in the service provided by health service bodies, rather than complaints about the actions of specific individuals. It follows, therefore, that complaints about
treatment received in NHS organisations are the responsibility of that body. Currently, the health service commissioner can investigate such a complaint regardless of whether any employee concerned still works for the NHS because--as hon. Members have also said--the NHS body continues to be a legal entity.The purpose of new clause 4--if I correctly understand the intentions of the right hon. Member for Bromley and Chislehurst--is to impose a three-year time limit following the retirement or resignation from the NHS of a person who has been the subject of a complaint. In this context, that would apply to health service professionals employed by NHS trusts and other employing bodies.
An absolute time limit of three years would have some unfortunate effects. For example, if a complaint were made against a consultant surgeon more than three years after he ceased to be employed by the NHS, the health service commissioner would no longer be able to conduct an investigation. It cannot be right to impose such a constraint and so to limit the commissioner's ability to investigate the NHS organisation concerned.
Moreover, how would the limitation apply when several staff members of the NHS body concerned were involved in the matter leading to the complaint? Would the resignation of one staff member mean that the matter could not be investigated? The distinction between the individual and the body is, therefore, a very important one.
Section 9(4) of the Health Service Commissioners Act 1993 currently provides that the commissioner shall not entertain a complaint made more than a year after the day on which the complainant first had notice of the matter complained of. However, and very importantly, the commissioner has discretion to waive that limit when he considers it reasonable to do so.
I should also like to try to clarify a matter on which there has been repeated comment--the reference to the one-year limit and the discretion as "custom and practice". They are not custom and practice.
Section 9(4) makes it clear that the clock starts to run on the day on which the complainant discovers the problem. The complainant then has a year to raise the complaint with the commissioner, unless the commissioner thinks that it is reasonable to allow longer for it to be made. The second test provided in new clause 5 is that the commissioner must be satisfied that more than three years have not passed since the practitioner practised or the independent provider provided the services.
Therefore, the one-year limit and discretion are already clearly provided for in legislation and are not affected by whoever may currently be the commissioner.
The commissioner's discretion to waive the one-year limit allows him or her to continue to investigate complaints against an NHS body regardless of whether the person who is the subject of the complaint is still employed by the body. The limit that we propose in relation to practitioners and independent providers is three years from when they--the practitioner bodies, not their staff--cease to be involved in the NHS.
The Government feel that new clause 4 would impose unfortunate restrictions on the commissioner's remit to investigate complaints against NHS bodies. Although, at
first sight, the proposed time limit of three years for those bodies would parallel the time limit proposed by the family health services and independent providers, in practice, it would in my view inappropriately constrain the commissioner's discretion to conduct investigations. Therefore, I hope that the House will agree that it is not appropriate and should, therefore, be rejected.The hon. Member for Westmorland and Lonsdale (Mr. Collins) asked what would happen if a practitioner were struck off. One of the Government's new clauses, which I shall speak to in a moment, purposely talks of ceasing to practice or provide. There should be simplicity in the commissioner's role, and it should be easy for people to use the facility. Therefore, although it may be an attractive proposition to extend the time limit in relation to those who are struck off, such provision would run counter to our objective of ensuring that simplicity. I may say more on that in speaking to later provisions on professional bodies and other remedies.
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