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Mr. Hammond: Could the Minister clarify that last point? She said that the Government's new clause contained the phrase "ceased to practise or provide". I do not see that phrase in new clause 5. Perhaps we are speaking at cross-purposes.

11.30 am

Ms Stuart: Yes, it is when I come on to clause 5; I am taking clauses 4 and 5; it is clause 9(4) which makes that quite clear. Can I come back to that in a moment? I will come back in a moment to the phrase that we use. Government clause 4A and new clause 5 say that a person who is no longer--I am sorry; it is in clause 4. May I come back to that in a moment? I have got it in my notes. Can I move on to clause 5? The test is when the person concerned ceased to practise or provide health care. I may be able to give the hon. Gentleman the precise reference later.

On Second Reading and in Committee, I made it clear that the Government believe that it is inappropriate and unfair that family health service practitioners and independent providers who would be affected by the Bill should be subject to investigation by the health service commissioner indefinitely. That would be the effect of the Bill as it stands, because of the ombudsman's discretion to waive his one-year limit on bringing complaints. We have been committed from the outset to inserting a statutory limit on how long after the person concerned ceased permanently to be a practitioner or provider the ombudsman would be able to investigate a complaint. New clause 5 fulfils that commitment. I am afraid that I still cannot find the relevant passage to quote to the hon. Gentleman, but I shall come back to his point.

New clause 5 would impose a three-year limit after the cessation of practice or provision. Our aim is not to curtail unreasonably the ombudsman's powers to investigate retired GPs, but to reassure practitioners that, as in other areas such as civil litigation, their liability will at some point come to an end. We have consulted on the appropriate period to achieve that balance. There has to be sufficient scope for the ombudsman to exercise his discretion to waive his time limit. It quickly became clear that a year or 18 months would be too short a period. Several examples have been given of the time that it can take to bring complaints.

Let us suppose that someone goes to see their GP on the day before that GP retires. The GP, perhaps feeling a bit demob happy, does not ask many questions or examine the

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patient as he had expected and tells him to go home and take two aspirins. Ten months later, it turns out that the patient has a condition that the GP, now retired, should have diagnosed at the outset. He makes a complaint to the GP's old practice, in accordance with NHS complaints procedures, but is dissatisfied with the outcome. A conciliation meeting follows, as part of the local resolution action, so the whole process takes about six weeks.

The patient then applies to the health authority for an independent review panel investigation, which, after due consideration, is granted. By the time that the panel has done its work and submitted its report--this is an extreme example to illustrate the case--a further four months have passed, because the lay chairman was away on holiday for three weeks just after the panel hearing. By now, the GP has been retired for about 16 months.

The patient gets the report and, after thinking about it for a bit, goes on holiday. He then decides that he is still dissatisfied and approaches the ombudsman, nearly 18 months after the event about which he is complaining and the date when the GP retired. Strictly speaking, the ombudsman's one-year limit should come into play, but because of the circumstances, he may decide that it is appropriate to waive his limit in this case. Setting a time limit of one year on the investigation of retired GPs would restrict the ombudsman's power in a way that would be contrary to the spirit of the Bill, which was intended to close a loophole without restricting or significantly widening the powers available.

The key question is how long after the event the ombudsman might want to exercise his discretion. We thought that the most reasonable starting point would be to ask the ombudsman. He thought that three years would be a sensible compromise. The difficulties in conducting a meaningful investigation into something that happened much longer ago mean that he would be unlikely to want to exercise his discretion beyond that point. Interestingly, that coincided with some of the suggestions made by hon. Members on Second Reading. As it seemed likely to be acceptable to the majority of those with an interest in the issue, we have decided that three years is the appropriate period.

The right hon. Member for Wealden (Sir G. Johnson Smith) is seeking to plug a loophole that treats certain complainants unfairly. I have already made it clear in previous debates that I have considerable sympathy with his motives, and the Government have no wish to prevent him from succeeding. However, I have also made it clear that I have a responsibility to ensure that all those involved are treated fairly--those complained against, as well as the aggrieved complainants. I hope that he agrees that the new clause represents a reasonable compromise to achieve the necessary balance.

Mr. Hammond: Before she finishes her speech, will the Minister address the distinction in new clause 4 between practitioners who have been struck off and those who have resigned?

Ms Stuart: The purpose of the Bill is to close a loophole and we do not feel that that distinction would be helpful or would significantly add to the Bill. New clause 5 uses the words


We feel that that is the appropriate way forward.

Mr. Hammond: The purpose of the Bill is indeed to close a loophole and allow practitioners to be investigated

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after they have retired from the service. The purpose of the Government's new clause is to limit the jeopardy of ordinary practitioners so that they do not retire with open-ended jeopardy. Does the Minister believe that the same protection should be afforded to practitioners who have been struck off for malpractice if another case of malpractice then comes to light? In new clause 4, my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) cleverly distinguished between practitioners who have been struck off and those who have merely resigned.

Ms Stuart: There are many other remedies available--from the General Medical Council, for example. We are trying to strike a fair balance, not to provide protection. We felt that the most appropriate test for the role of the ombudsman was to start the clock on


It is disingenuous to regard that as an attempt to protect people who have been struck off. We are trying to strike the right balance.

Mr. Miller: The spirit of the Bill is about enabling people to see justice done, not to gain pots of money. The fact that the practitioner has been struck off is the kind of justice that they would want, so the argument becomes academic.

Ms Stuart: Lawyers would call that a moot point.

Mr. Miller: Is my hon. Friend a lawyer as well?

Ms Stuart: My only defence is that I do not practise as a lawyer.

I urge hon. Members to see the new clause in the light of the purpose of the Bill and realise that the three-year limit is a fair one.

As for new clause 5, the right hon. Member for Wealden was seeking to plug a loophole whereby certain complainants were being treated unfairly. I have already made it clear in previous debates that I have considerable sympathy with his motives, and that the Government have no wish to prevent him from succeeding. However, I have also made it clear that I am responsible for ensuring that all those involved are treated fairly--those complained against, as well as the aggrieved complainant. I hope that he agrees that our provision is a reasonable compromise to ensure the necessary balance.

New clause 6 may have come as a surprise to some hon. Members, as the Government had not indicated their intention to table such an amendment. Indeed, it was the subject of considerable debate involving among others my hon. Friend the Member for Hendon (Mr. Dismore). I am sure that on reflection, however, they will have realised that the new clause is nothing more than a piece of minor housekeeping to avoid confusion and misinterpretation.

Most right hon. and hon. Members, particularly the lawyers among us, will be aware that it is not the normal practice of the House for amending legislation to be given retrospective effect. Indeed, we have a clear example of that in the legislation that we are considering today.

The sections of the Health Service Commissioners Act 1993 that would be affected by the Bill were inserted into it by the provisions of the Health Service Commissioners

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Act 1996. The 1996 Act came into force on a specific date--1 April 1996--and had no retrospective effect on complaints that had already been turned down because they were out of jurisdiction when they were made.

Mr. Dismore: My hon. Friend probably misunderstood my criticism of the new clause. The new clause is retrospective in that it provides a potential future remedy for a problem that may have already occurred. The alternative suggestion is that the time limit should be from the date of the incident or from a date to be set when the Bill comes into force, thus avoiding retrospectivity, which the Government's new clause would create.


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