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Ms Stuart: We have two lawyers and two opinions.
Ms Stuart: That is known as synergy. Nevertheless, I hope that, on reflection, my hon. Friend the Member for Hendon will agree with our proposal.
Unfortunately, the lack of retrospectivity was not made explicit in the 1996 Act. As a result of that failure, significant numbers of complainants contacted the ombudsman once the new jurisdiction became known, either seeking to have earlier complaints re-examined, or making complaints about matters that pre-dated the extension of his remit. In his annual report for 1996-97, the ombudsman said:
- These premature approaches to the Commissioner and misunderstanding about the new NHS complaints procedures account for much of the increase in the number of complaints received in 1996-97 . . . In summary, although I received more complaints in 1996-97 than in previous years, the percentage which I could investigate was lower . . . the significant increase in complaints received and the decrease in the proportion I could investigate caused an imbalance in the workload between my screening and investigation departments.
It therefore seems only common sense that the Bill should seek to avoid similar problems. Although there are relatively few cases in which the ombudsman has been constrained by the current wording of the relevant sections of the 1996 Act, it nevertheless seems wise to avoid any possibility of doubt by making it explicit in the Bill that those cases cannot be re-opened as a result of the Bill. I hope that the right hon. Member for Wealden will agree that our proposals are a sensible precautionary measure that he can support.
11.45 am
I now turn to new clause 7, tabled by my hon. Friend the Member for Hendon. As I emphasised on Second Reading and in Committee, the Government are persuaded that the loophole concerning family health service practitioners and independent providers that was exposed by the right hon. Member for Wealden should be closed. However, the new clause would once more seek to address time limits for complaints against health service bodies, so I do not consider it appropriate.
Mr. Hammond: As the Minister has just referred to family health service practitioners, will she take the
opportunity to answer my question: does that phrase in this context include providers of general medical services and personal medical services?
Ms Stuart: As far as I am aware, the definition of a family health service provider relates to the person providing the service and their relationship with the national health service. It is not based on a precise definition of the service, but on the relationship with the national health service. However, I am happy to come back to the hon. Gentleman on that.
New clause 7 would bring the limitation period for the health service commissioner's investigations into line with the process of clinical negligence actions. At first sight, it would appear to make a neat parallel between the provisions for the commissioner to investigate complaints and the timetable for carrying out civil actions, but further examination shows that, in practice, this apparently sensible provision would create a number of difficulties. My hon. Friend the Member for Ellesmere Port and Neston (Mr. Miller) made the important point that people want a sense of fairness and an explanation of what happened.
The limitation period for actions for personal injury set out in section 11 of the Limitations Act 1980 is three years after the date of the event giving rise to the action, or three years after the date when the injured person became aware of the cause of the action, if that date was later. However, the court also has powers to disregard the limitation period when it considers it equitable to do so. Therefore, the new clause will not introduce a simple rule of thumb of three years, but instead--and most unfortunately--it would create a complex and unclear period of limitation.
I should like to make a further point with regard to the distinction between the investigation of complaints under NHS procedures and the pursuit of legal claims. The Government believe that providing a clear and logical set of procedures for patients to complain about their treatment under the NHS if they wish to do so is vital. To achieve that, we must retain a clear distinction between the parallel processes of pursuing a legal remedy through the courts and the complaints procedures in the NHS. The new clause would tend to confuse those two quite distinct processes in the minds of patients, so it would be completely unhelpful. Those comments are also pertinent and relevant to my unwillingness to entertain the notion that there should be a different limit for providers who have been struck off. We seek simplicity and I hope that the right hon. Member for Wealden will agree that the new clause does not provide a clear way forward and therefore should be rejected.
Sir Geoffrey Johnson Smith (Wealden): I never cease to be amazed by the ingenuity of right hon. and hon. Members in taking over a Bill and spending so much of their agile minds in advancing strong cases for improvements that were not really meant to be part of the legislation. I admire and respect them for it.
I am a very simple man when it comes to the Bill, although on matters such as defence, I can get very complicated. In this respect, I confirm that the Minister is quite correct in interpreting my motives. I was struck by the fact that there was a loophole that allowed GPs to retire to avoid investigation by the health service ombudsman. It seemed fair enough to try to close that loophole.
The various points made by right hon. and hon. Members have struck a chord with me. I have little doubt that such matters require attention. However, I hope that they will understand me when I say that the Minister has interpreted my motives correctly. Therefore, it will come as no surprise to her or to the House that I agree with what she has proposed.
Of course I recognise that other matters can and should be raised, which have come up in this debate and might be the subject of future legislation. I understand that the Government are reviewing the work of the public services ombudsman, so I hope that when these matters come before the House, the Government will take into account the proposals in the new clauses. However, for the reasons that the hon. Lady gave, I do not think that they should form part of this Bill. No doubt they will appear in future legislation.
Quite simply, the loophole should be closed. Therefore, I hope that the Government's new clauses will be accepted by the House. I am most grateful for the attention that people have given the Bill.
Mr. Forth: I am very conscious of what my right hon. Friend the Member for Wealden (Sir G. Johnson Smith) has said. It is interesting that this is, by any account, a non-controversial Bill--indeed, that term was used by no less eminent a person than the Leader of the House yesterday during business questions. Yet we have justified the process by which this non-controversial Bill has received detailed attention on Report, as a result of new clauses being tabled by the Government and by a Government supporter, and very productively, too. The Bill's promoter has just supported that view.
This is something to which we might return very early next week as an argument. Who knows? I am simply putting down a marker and illustrating the point in a way that may be of interest to the House on Monday.
I listened carefully to what the Minister said. I am not sure that we have yet had an answer to the question asked by my hon. Friend the Member for Runnymede and Weybridge (Mr. Hammond) about family health service providers.
Ms Stuart: May I refer the right hon. Gentleman to new clause 5? Proposed new subsection (4A) of section 9 of the Health Commissioners Act 1993 refers to family health service providers and proposed new subsection (4B) also refers to independent providers. Those proposals will cover both family health practitioners and providers of personal medical services.
Mr. Forth: It is important that we clarify these matters, and I am grateful to the Minister for taking the opportunity to do so. The value of the process is that it allows us to clarify matters, and gives the Minister the opportunity to put things on the record. It is a proper use of the time and the procedures of the House.
The Minister took time and care, as ever, to explain why she thought that my new clause was defective. I accept her arguments in the terms in which she made them. It was obvious that flaws were emerging during the exchange of views when I was speaking to my new clause. I readily accept that. I will, for the moment, go along with my right hon. Friend's recommendation that we accept new clauses 5 and 6, but with one reservation.
I still believe that we have not yet had an answer to the point about struck-off practitioners, initially made by my hon. Friend the Member for Westmorland and Lonsdale (Mr. Collins) and reinforced by my hon. Friend the Member for Runnymede and Weybridge. I do not think that it would be appropriate or fruitful to pursue the matter further at this stage, but those in another place might want to consider it, building on what has been said here and taking account of the Minister's comments, to see whether the Bill could be yet further improved before completing its inevitable--I trust--passage through all its stages to ultimate Royal Assent. That would also be a very proper use of the parliamentary process. The House considers the Bill, it is then looked at in detail in another place and amended or improved where necessary.Today's debate has been useful. I have felt honoured to have played my little part in what we have so far done to the Bill. Goodness knows, there is still a little bit to go. However, I would not want to delay the House any further at this stage. On that basis, with these brief remarks, I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
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