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New Clause 5

Requirements to be complied with


'. In section 9 of the Health Service Commissioners Act 1993 (requirements to be complied with), after subsection (4) there is inserted--


"(4A) In the case of a complaint against a person who is no longer of a description set out in section 2A(1) or (2), but was of such a description at the time of the action complained of, the Commissioner shall not entertain the complaint if it is made more than three years after the last day on which the person was a family health service provider.
(4B) In the case of a complaint against a person falling within section 2B(1) or (2) in relation to whom there are no longer any such arrangements as are mentioned there, the Commissioner shall not entertain the complaint if it is made more than three years after the last day on which the person was an independent provider."'.--[Ms Stuart.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 6

Transitional provision


'. Where before the coming into force of this Act a complaint has been made to a Health Service Commissioner which he has declined to entertain on the ground that the person complained against--


(a) was no longer of a description set out in section 2A(1) or (2) of the Health Service Commissioners Act 1993, or
(b) no longer fell within section 2B(1) or (2) of that Act,
the amendments made by this Act do not enable that complaint to be revived, or a new complaint arising out of the same matters to be entertained.'.--[Ms Stuart.]

Brought up, read the First and Second time, and added to the Bill.

Clause 1

Persons Subject to Investigation

Mr. Dismore: I beg to move amendment No. 12, in page 1, line 20, at end insert--


'(4) In section 3 (general remit of Commissioners)--

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(a) at the end of subsection (1) insert "or, in the event that the person the subject of the complaint has retired or resigned from the National Health Service, refer the complaint to the professional body of the registered medical practitioner, dentist or nurse who is the subject of the complaint;"
(b) at the end of subsection (1A) insert "or, in the event that the person the subject of the complaint has retired or resigned from the National Health Service, refer the complaint to the professional body of the registered medical practitioner, dentist or nurse who is the subject of the complaint;"
(c) at the end of subsection (1C) insert "or, in the event that the person the subject of the complaint has retired or resigned from the National Health Service, refer the complaint to the professional body of the registered medical practitioner, dentist or nurse who is the subject of the complaint".'.

The amendment would half plug a consequential loophole. Section 3(1) of the Health Service Commissioners Act 1993 states:


There is then a cross-reference to subsection (1A) of section 15, which states that where in the course of an investigation a commissioner comes across something that is


That could be the professional bodies, for example.

The problem is what would happen if the commissioner decided not to conduct an investigation. My amendment would deal with that problem, so that if the commissioner decided not to conduct an investigation into someone who had retired or resigned from the health service, he would still be able to refer the matter to the professional body. At present, he cannot do that.

12 noon

That matter was highlighted by the health service ombudsman in his annual report for 1998-99, paragraph 4.6 of which stated:


That relates to the reference I made to the relationship between sections 13 and 15 of the principal Act.

The report continued:


The ombudsman states that he told the Government and the Select Committee on Health about that problem, and proposed that his powers should be widened to deal with that loophole. That is what my amendment tries to do. Paragraph 4.7 of the report stated:

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The measure offers an opportunity to plug that loophole.

I tried to table a more general amendment that would have affected all investigations--or rather non-investigations--but, unfortunately, it was not selected. The selected amendment deals with the position when a registered medical practitioner has retired or resigned from the NHS. However, that was a sensible selection, because we know from the statistics for 1998-99 that there were 2,869 complaints to the ombudsman, but only 119 investigations. Of those, 62--about half--involved a clinical complaint. One can thus extrapolate that, pro rata, probably 1,500 medical issues were referred to the ombudsman in 1998-99. The number is even greater in 1999-2000, when the ombudsman estimates that he will receive 3,450 complaints and will conduct 150 investigations.

The problem is that we could end up with about 3,500 complaints that are not investigated and with which the ombudsman can do nothing else. If half those involve clinical issues, the ombudsman might like the opportunity to refer them on to the General Medical Council or whoever for action--as he says in his report--even if he decides not to conduct a formal investigation himself.

The circumstances in which that is likely to arise may well be when a practitioner has retired or resigned from the health service. Under the Bill, the ombudsman would be entitled to look at a complaint, but he might think that, as the person had retired or resigned and would not be going back into practice, there would be little point in his spending a lot of time and money making one of his 150 investigations into that case. However, he might decide that the GMC should be aware of the matter, in case the person tried to do locum work, for example. It would not be worth devoting the ombudsman's resources to the problem, but the GMC should be made aware of it.

At present, the ombudsman could do nothing about such a case, as he pointed out in his report. His staff are put in a difficult position, because his medical advisers might want to take action, but could not do so. My simple amendment would deal with that problem.

The amendment is in three parts, because that is how the original legislation was drafted. It would be a worthy addition; it would half plug a loophole that would emerge as a result of the Bill.

Ms Stuart: When the complaints procedure was set up in 1996, the clear intention was that it should be completely separate from disciplinary procedures. The prime aim of the ombudsman procedure is to resolve problems and satisfy the concerns of the complainant, while being fair to all those who are the subject of a complaint.

The amendment proposed by my hon. Friend the Member for Hendon (Mr. Dismore) would give the health service commissioner the statutory provision to refer a complaint made to him to the disciplinary bodies of doctors, dentists and nurses, subject to section 15 of the Health Service Commissioners Act 1993.

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It has been suggested that the commissioner might not already have that power, but it is clear that he is able to disclose information to regulatory bodies about any person who is likely to constitute a threat to the professional bodies. He is not as powerless as has been suggested. The commissioner has suggested to my officials that he thinks that the onus should be on the complainant to disclose such information. He therefore does not require such statutory powers.

Although an argument could yet again be made to widen the Bill's remit, that would substantially detract from its original and precise intention of plugging a specific loophole. I shall not go into detail on the confusions and ambiguities that the amendment might create, but would simply point out that it does not accord with either the current complaints policy or the wishes of the health service commissioner. It should therefore be rejected.


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