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Baroness Jay of Paddington: I am grateful to the Minister for that reply. There is no potential controversy between us about the need, if possible, to resolve all complaints at the local level, or about our enthusiasm for the extended local procedures which will make that more likely. The concern is precisely that addressed by the noble Baroness, Lady Robson; namely, where the emphasis lies in terms of who can instigate the exceptional procedures when it is thought that the local situation is not satisfactory. As the Minister mentioned, the two specific examples given by the commissioner relate to excessive delay and to the area of the breaking down of confidence. But that again depends entirely on his judgment and initiative in taking the proposals into his own court.

This amendment may not be in the right position in the Bill. I am sure that the noble Baroness will be able to find a more appropriate section for its inclusion so that it does not annul a provision which I agree with her

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is important. But the concern reflected in the amendment is that complainants should be given some rights in instigating those procedures, and some important role, to make them feel that they are at least equal partners in a decision about what may have been a very serious episode in their lives, rather than relying on what I am afraid will appear to be a somewhat remote and distant body, in the form of the health service commissioner's office, to determine precisely at what stage he and his office will enter the proceedings.

I do not feel entirely satisfied with the Minister's reply. Although I understand precisely her points about the inadequacy of the present positioning of this amendment in relation to the Bill, I still feel that, given points raised by the noble Baroness, Lady Robson, and myself about the potential difficulty and powerlessness of a complainant faced with the procedures, even under the reformed system, I may need to return to this matter at a later stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 agreed to.

Clause 6 [Exercise of clinical judgment]:

Baroness Jay of Paddington moved Amendment No. 6:

Page 4, line 44, at end insert ("in the course of--
(a) the diagnosis of illness, or
(b) the care or treatment of a patient."").

The noble Baroness said: This is a probing amendment. It is designed to try to clarify and limit those areas that can legitimately be described as "clinical judgment" and be the subject of a complaint about clinical judgment under the extended powers of the ombudsman. I have no doubt in this instance that the wording, or indeed the concept and the placing in the Bill can certainly be improved. However, the purpose at this stage is to ask the Minister to consider the problem of identifying, as it were, ring-fencing the definition of "clinical judgment", which would enable both the complainant and the ombudsman's team to be precise.

I said at Second Reading that I feared it would be very difficult, on the ground, always to distinguish between matters of clinical judgment and maladministration, and difficult for everybody concerned to put complaints and consideration of complaints into the appropriate pigeonhole.

I return to the example of the ever-present--or perhaps never-present--scanning machine. If a doctor makes a diagnosis on the basis of an examination that does not include a scanner because a scanner is not available, and that diagnosis turns out to be disastrously wrong but would have been right had a scan been taken, is the patient to make a complaint about clinical judgment, maladministration, or both?

Equally--as happened in the recently very well publicised case involving the consultant who successfully sued the Daily Mirror for libel--if it is decided clinically that the patient needs an intensive care bed but intensive care is not immediately available, is it legitimate to complain that the clinical judgment about the treatment should have been altered so that the patient

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could have been treated in a less intensive way in the local hospital where he was? On the other hand, is it more legitimate to complain about the administrative decisions which may have caused the initial lack of an ITU bed and which indeed subsequently caused the patient to be flown hundreds of miles to another hospital? I suspect that these kinds of case will arise very often. It is clear that many occasions arise when there is a medical emergency in which a very rapid clinical judgment is taken, often in circumstances of extreme stress both to the patient concerned and to the medical staff. In such circumstances clinical judgment will be involved but so also will other issues which could or could not be described as maladministration.

To be fair to the complainants, but also, very importantly, to be fair to the doctors, nurses and any other staff involved in such decisions, we must try at this stage to be more precise about what we call clinical judgment and what we describe as legitimate complaints that fall under that heading.

As the Committee knows, it is an extremely sensitive area of professional practice that the commissioner is entering. The whole area of clinical judgment has always been regarded almost as a matter of holy writ in the medical profession. It is significant that in his useful background paper, to which I have already referred, on his responsibilities, Mr. Reid, the present health service commissioner, does not elaborate at all on this area of what precisely will be deemed to be clinical judgment. He emphasises, rightly I am sure, that he will need significant professional advice to fulfil his new responsibilities in this area.

Certainly, peer group review of complaints of clinical judgment will give confidence to those whose judgment may be complained about and may need to be assessed. Mr. Reid also mentions that he will take account of the balance of judgment in cases where there is perhaps a conflict between those assessing clinical judgment on his behalf. Perhaps the Minister will tell the Committee whether the expectation is that a clearer picture will emerge from the evaluation of the early cases presented to the commissioner about clinical judgment. I feel that we have a parliamentary responsibility to try to give some clear statutory guidance on this new area. I beg to move.

Baroness Cumberlege: I have considerable sympathy with the aim of this amendment. It seeks to clarify the meaning of the words "clinical judgment" by borrowing words that were used in the 1993 Act to prevent the commissioner from investigating complaints about clinical judgment.

I assure the noble Baroness, Lady Jay, that there are no sinister intentions behind the fact that the parliamentary draftsman has not used those words to limit the meaning of the term "clinical judgment" in Clause 6 of the Bill. The drafting is in fact aimed at making the intention of the Bill clearer. In order to specify decisions that arise from the exercise of clinical judgment, it is not necessary to use all the words that were used in Section 5 of the 1993 Act. The words,

    "in consequence of the exercise of clinical judgment",

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are quite sufficient to define what is meant.

The amendment would bring us no nearer to a definition of the concept of clinical judgment. It would simply limit the circumstances in which clinical judgment could be said to be exercised. I assure the noble Baroness that the intention of Clause 6 is to cover clinical judgment when it is exercised in the course of a diagnosis of illness or the care and treatment of a patient. But the addition of those words to the drafting of the clause would risk confining, unhelpfully, the circumstances in which clinical judgment can be held to be exercised.

For example, a complaint might be made about the refusal by a health professional to release a part of a person's health records because it contained information which, in the opinion of that professional, was likely to cause serious harm to the patient or any other individual. In such a case, the health professional would have exercised clinical judgment in deciding not to release that part of the record. But it could be argued by a person seeking to challenge the ombudsman's investigation that that judgment was not exercised in the course of the diagnosis of illness or the care or treatment of the patient.

The concept of clinical judgment has not been defined in any of the legislation governing the powers of the health service commissioner. It is, rather like maladministration, a developing concept. It will be for the commissioner to decide, with advice from his professional advisers, whether and which aspects of any given complaint concern clinical judgment. However, a working definition which my honourable friend the Parliamentary Under-Secretary of State offered during the passage of the Bill in another place is a judgment which a member of one of the health care professions exercises by virtue of the particular expertise and training of his or her profession and which a lay person would not be able to make.

The vast majority of complaints about the exercise of clinical judgment are likely to involve doctors and nurses. But, again, even the concept of the recognised health care professions is continually developing as new forms of therapy become accepted parts of clinical treatment in the NHS. It will be for the ombudsman to decide when he needs to seek particular professional advice for any given complaint.

I know that that is not a satisfactory answer for the noble Baroness, but I hope that it has gone some way to allaying her fears.

8.30 p.m.

Baroness Jay of Paddington: I am very grateful to the Minister for that reply. As I said in moving the amendment, I know that this is an extremely difficult area. It is almost one for which one needs some kind of university seminar rather than a piece of legislation. But I still feel that it is helpful to try to make these concepts as clear as possible.

I appreciate that, in a way, what I put into my amendment unhelpfully limited the definition of clinical judgment, although, as the noble Baroness rightly said,

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it was drawn from the language of the previous Act. It is certainly not my intention to try to do it unhelpfully but rather to do it helpfully.

I suspect that, as the noble Baroness said in her concluding remarks, this issue will have to depend on case law. I feel that there will be potential difficulties where the two areas of potential complaints--of maladministration and clinical judgment--may (if it is not an inappropriate metaphor) bleed into each other. Difficulties may arise.

Given what the noble Baroness said about the ombudsman's determination to use peer group review and to work on the basis of experience and case law, I hope that we shall have another opportunity to discuss how Parliament may examine those reviews. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 agreed to.

Clauses 7 to 9 agreed to.

Clause 10 [Reports]:

[Amendments Nos. 7 and 8 not moved.]

Clause 10 agreed to.

Remaining clauses and schedules agreed to.

House resumed: Bill reported without amendment; Report received.

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