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Baroness Cumberlege: I understand what the noble Baroness seeks to achieve with the amendment. However, we believe that the amendment goes far beyond the scope of the Bill. It also raises radical questions about the role of the ombudsman in relation to the courts, bringing his health service remit out of line with his parliamentary one. It would seriously undermine the whole objective of the reformed complaints system, which I know the noble Baroness strongly supports, to ensure that complainants are dealt with openly and honestly while being scrupulously fair to the professionals and staff concerned.

The amendment would revoke the provision in the 1993 Act which ensures that the commissioner's role does not usurp the role of the courts. The commissioner is prevented from investigating a complaint where the person has a remedy which could be pursued through the courts, except if the commissioner is satisfied that it is unreasonable to expect the person to resort to the courts. The commissioner's role is not and never has been to determine questions of clinical negligence or to give complainants damages. That is for the courts to decide. His role is and always has been distinct from that of the courts.

What the commissioner can offer is an investigation and explanation of the facts, recommendations for an apology to be made and for matters to be put right both for the complainant and for other patients. We know that that is what the vast majority of complainants want to achieve, as the noble Baroness said. We hope that the Bill will help some people who otherwise might have felt that the only way to achieve that is through an expensive and stressful legal process. However, the Bill should help to reduce the incentive to resort to litigation.

The commissioner's paper makes it clear that in deciding whether to investigate a case which could have gone to court, he will carefully consider what the complainant seeks to achieve. Where the complainant's

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primary concern is to obtain damages, or there is evidence that he is already seeking or considering a legal remedy, he will be unlikely to investigate. It would be quite wrong for people to embark on fishing expeditions and to use the process as a means of trying to build up a case for seeking damages in the courts.

If complainants could have an ombudsman investigation at the same time as taking legal proceedings, the professionals and staff concerned could be put in the impossible position of having to respond to an ombudsman's investigation at the same time as defending themselves against legal proceedings.

I hope that in the light of what I have said, the noble Baroness will not seek to press the amendment.

Baroness Robson of Kiddington: I understand the problem with my proposition. However, it seems to me such a tragedy because I know that in most cases, even when a case goes to court, the complainant desperately wants to prevent the same thing happening to someone else. We ought to be able to devise a system whereby that can be achieved. I may be mistaken in thinking that it can be achieved through the health service commissioner. Perhaps the system of judgment in a court case should include a remedy and recommendations to the institution. I am not quite sure which way to deal with the issue. However, for today, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Jay of Paddington moved Amendment No. 5:

Page 4, line 32, at end insert (", or
( ) a complainant has elected to refer the action to a Commissioner with a request for investigation before the other procedure is exhausted.").

The noble Baroness said: The purpose of the amendment is to give health service complainants the opportunity to refer their concerns to the ombudsman before the earlier complaints procedure has been exhausted. I imagine, indeed I hope, that those would be in exceptional circumstances.

In his extremely helpful paper on his new responsibilities, the commissioner says that he will not normally investigate a complaint until NHS procedures have been exhausted. We all hope that those procedures will go smoothly, with everyone involved happy that the complaint is being considered at the first and second stages on the famous level playing field. Indeed, we would hope that most complaints would be satisfactorily resolved during those local proceedings and would never reach the ombudsman's desk.

However, it seems at least theoretically possible that there will be occasions when a complainant feels that his or her case is not being totally fairly treated: that perhaps because of a history of personal antagonism, the position is being distorted or inadequately represented. We perhaps can all think of situations in which a particularly bad personal relationship, possibly between a doctor and a longstanding "difficult" patient, might lead to the difficult patient feeling that somehow his case was not being appropriately advocated. That

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potential suspicion is increased by the fact that in the early parts of the complaints procedure the whole process will be in the internal hands of some of the trusts and some of the health service managers who could, in the worst circumstances, be accused of possible collusion with local clinicians and their own colleagues.

The third possibility of concern for the complainant is a potentially difficult and longstanding delay in procedures which in the worst circumstances could be construed as deliberate, leading to a legitimate complaint and a wish on the part of the complainant to accelerate the procedures towards the ombudsman.

In his paper, the commissioner says that he is prepared to act on his own discretion where there are instances of what are described as "unreasonableness". However, as so often in the Bill, there is difficulty about precisely what constitutes "unreasonableness". The amendment gives the discretion, the choice, to the complainant, where I feel that it should surely lie. The amendment would not make it necessary for the ombudsman to investigate every case which might be referred earlier in the complaints procedure. It would simply allow the complainant to choose that route if he or she so wished.

I remind the Committee that this proposal was included in the original Wilson Report on which the Government's reform of the complaints procedure has been based.

At Second Reading, I quoted from the 1993 report of the Select Committee for the Parliamentary Commissioner for Administration which stated:

    "'The complaints system in the NHS seems designed for the convenience of providers of the service rather than complainants'".--[Official Report, 12/2/96; col. 485.]

At Second Reading the Minister agreed with me that there were aspects of the present system which could be described as an unfriendly maze. Undoubtedly, as all sides of the House agreed at Second Reading, the proposals in the Bill are an important step towards making procedures more accessible and increasing the rights of NHS users when they wish to complain. The amendment simply improves their position still further. I beg to move.

8.15 p.m.

Baroness Robson of Kiddington: I support the amendment. As the noble Baroness, Lady Jay, said, we all know of occasions when there is animosity between a member of the medical profession or staff and the patient going through the complaints procedure. We also know that on those occasions there can often be deliberate, excessive delay. The patient feels that however much we claim to have improved the complaints procedure it will not satisfy him.

I support the amendment because it gives the complainant the right to refer to the commissioner. It does not force the commissioner to investigate, but I am

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sure that it would alleviate much of the frustration of some complainants who feel that they are not being properly looked after.

Baroness Cumberlege: The amendment would have the effect of nullifying Clause 5 by allowing a complainant to choose whether or not he should exhaust the local NHS complaints procedures before investigation by the ombudsman. Clause 5 gives the ombudsman discretion to investigate a complaint without the local procedures having been invoked or exhausted. He has to be satisfied that it is not reasonable in the particular circumstances to expect the complainant to have invoked or exhausted them. The ombudsman believes, however, that complainants should normally seek first to resolve their concerns through the local complaints procedures. That is in line with accepted good practice in other parts of the public sector and, for example, in the case of complaints to regulators such as Oftel and Ofwat. In her Citizen's Charter Complaints Task Force report, Lady Wilcox recommended that public services should provide an opportunity for independent review of complaints before they reach the ombudsman. That is precisely what we are seeking to achieve through our reformed NHS complaints procedure. We must give the new system a chance to work properly.

The amendment would remove the ombudsman's discretion and leave it entirely up to the complainant whether or not he exhausted the procedures. We do not believe that to be right or sensible, or indeed fair to NHS staff and professionals. It could cause the ombudsman's office additional operational difficulties.

The ombudsman has given in his paper two examples of cases where he might consider it unreasonable to invoke or exhaust the local procedures: where there has been excessive delay in handling the complaint; or where, in very exceptional circumstances, the complainant's confidence in the local complaints arrangements has completely broken down. There may be other examples. The ombudsman will need to decide each case on its merits. In the light of my remarks I hope that the noble Baroness will not press the amendment.

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