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18 Mar 1996 : Column 1125

Health Service Commissioners (Amendment) Bill

6.21 p.m.

Read a third time.

Clause 6 [Exercise of clinical judgment]:

Baroness Jay of Paddington moved Amendment No. 1:

Page 4, line 44, at end insert--
("(8) The Commissioners shall issue guidance for the purposes of clarifying--
(a) how to make a claim and the evidence required to be provided by the person who made the complaint; and
(b) the circumstances in which assistance is available to progress the investigation to the person who makes a complaint to enable them to provide the evidence required in paragraph (a) above.
(9) In preparing the guidance under section (8) above, the Commissioners shall consult with bodies appearing to them to represent the interests of patients, health service professionals and the bodies subject to investigation by the Commissioner."").

The noble Baroness said: My Lords, this amendment enables your Lordships to return to the vexed question of complaints about clinical judgment. At Second Reading and in Committee the Minister acknowledged--indeed, I think all of your Lordships who took part in the debates agreed with her--that it was extremely difficult to develop a precise definition of a clinical complaint, a precise definition which, if it were possible, would allow a positive description to be placed on the face of the Bill and would allow those practising the complaints procedure to distinguish a complaint about clinical care from one about maladministration.

We on these Benches were aware that the attempts we have made to suggest definitions by amendments, which have taken place both in your Lordships' House and in another place, have been inadequate. Amendment No. 1 therefore throws the responsibility on to the commissioner and would ensure that he makes national guidance available so that this very important additional category of complaint does not become discredited by misunderstandings and perhaps by local variations in practice.

Subsection (8) of Amendment No. 1 requires the commissioner to produce guidance about how to make such a complaint--a clinical judgment complaint--and to assist anyone who wishes to do so in assembling appropriate evidence to make his case. The clarity and accessibility which would be achieved would be of benefit both to the complainant and to those complained against. In the new and complicated area of clinical complaints to be considered by the ombudsman it seems to us particularly important that the scales of justice are seen to be clearly balanced and not weighed against a patient, a lay person, who may be questioning the professional judgment--indeed the competence-- of doctors and other health service professionals.

For example, it has been suggested that professional representative bodies may press the commissioner to set exacting and high standards of evidence from the

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complainant in a case of clinical judgment. It is very important that high standards are maintained. But in clinical judgment cases it seems that the type of evidence required may mean a level of scientific knowledge or perhaps technical expertise well beyond the capacity of the average complainant. That is the purpose of subsection (8)(b), to ensure that the commissioner's office takes the responsibility for ensuring that complainants understand how to find help so that the burden of assembling evidence will not fall inappropriately on them as individuals. Subsection (9) requires the commissioner to consult with appropriate outside bodies in creating the guidance. It is worth recording that the national consumer organisations and patients' representative bodies are anxious that the safeguards embodied in the amendment are included in the Bill.

The health commissioner himself has already emphasised in his useful background paper, which we have mentioned on several occasions in our deliberations on the Bill, that in his new responsibilities he will rely heavily on professional advice in the area of clinical judgment. That is what should be balanced by the requirements in the amendment. The Minister said in reply to my probing amendment on this subject in Committee that clinical judgment must be a developing concept. I agree with that. She also said:

    "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".--[Official Report, 29/2/96; col. 1680.]
I agree with that also but I do not think it is fair, either to the health professionals concerned or to patients, to accept that each and every instance of clinical complaint will be decided ab initio by the health commissioner with his professional advisers.

That is why Amendment No. 1 asks the health commissioner to issue guidance which will be available to everyone. Obviously that would be appropriately circulated once he has had the opportunity to develop his thinking about this complicated area with both the appropriate professional and, importantly, the consumer representative bodies. I beg to move.

Baroness Cumberlege: My Lords, as the noble Baroness has said, this amendment would require the commissioner to issue guidance to complainants on how to go about providing evidence in support of their complaint and to consult with various interest groups on the preparation of such guidance. The noble Baroness will know that I have a considerable amount of sympathy for the concerns which lie behind the amendment but I would argue that the amendment would be using a sledgehammer to crack a nut and therefore is unnecessary.

We have had a number of debates about amendments which would affect the way the commissioner goes about his work. We remain of the view that, since the commissioner is independent of government, it would be totally inappropriate to set down in primary legislation detailed operational requirements on his working practices. The commissioner's work is overseen by the Select Committee for the Parliamentary

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Commissioner for Administration. That committee is free to make recommendations for changes in the way he operates. I have no doubt also that Mr. Reid is taking careful note of all the views expressed in the debates in your Lordships' House and also in another place.

It is important that the commissioner should satisfy himself that there are good grounds for his intervention before committing the resources needed to conduct an investigation. It is right that complainants should tell him clearly what their grievance is and why they feel it has not been adequately dealt with by the new NHS procedures. The commissioner has made this clear in his paper. But he has also said that no complaint will be rejected simply because the initial request does not clearly establish the grounds of the complaint. He has further promised that a member of his staff will contact the complainant where appropriate to clarify the grounds of the complaint.

I believe that this should provide sufficient reassurance for your Lordships that complainants will not be prevented from bringing their concerns to the commissioner because of lack of support or guidance. I also know that the commissioner is planning to issue a revised leaflet for the public explaining how to make a complaint to him under his widened jurisdiction. It will refer to sources of help locally for people wishing to complain to him, including community health councils.

Your Lordships will be aware of the excellent work CHCs do in providing help and support to people wishing to make complaints about NHS services. There are also other sources of help available to the public; for instance, citizens advice bureaux and voluntary organisations. Some trusts employ patients' advocates or patients' representatives to support complainants and we encourage the further development of this kind of help to complainants at each stage of the new complaints procedure.

In conclusion, I do not believe that the amendment is necessary and I hope the noble Baroness, despite her closely argued case, will agree to withdraw it.

6.30 p.m.

Baroness Jay of Paddington: My Lords, I am grateful to the Minister for that reply. I take entirely the arguments that she has made that this is a sledgehammer to crack a nut. But I suspect that our concern on these Benches is that perhaps it is worth considering the methods by which these new procedures will be monitored and evaluated, which is in fact the subject of a later amendment in this evening's proceedings. It is important both for the confidence and understanding of the public that it is made very clear what these procedures are and how they will have their rights maintained. I am delighted to hear from the Minister that a revised leaflet will be issued. I hope that every effort will be made through the normal health service channels to ensure that members of the public are not intimidated by the new procedures and that they feel confident to make their complaints, if necessary as far up the system as the ombudsman. However, in view of the Minister's reply, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

18 Mar 1996 : Column 1128

Clause 10 [Reports]:

Baroness Jay of Paddington moved Amendment No. 2:

Page 5, line 44, at end insert--
("( ) After subsection (1) there shall be inserted--
"(1A) Before making the report of the results of an investigation the Commissioner shall--
(a) send a draft factual summary of the matters investigated, excluding his findings and recommendations, to the person and body referred to in subsection (1)(a) to (c) above, and shall give them an opportunity to indicate any factual inaccuracies or omissions; and
(b) send a draft factual summary of the matters investigated, excluding his findings and recommendations, to the complainant, and shall give him an opportunity to indicate any factual inaccuracies or omissions.".").

The noble Baroness said: My Lords, this amendment and Amendment No. 3, are also intended to improve what one might call "the balance of power" under the new complaints system--that is to say, to increase public confidence that individual patients will have the same rights as individuals appearing before the ombudsman, as will health care professionals, who may be supported by the formidable resources both of their own professional organisations and perhaps from the NHS itself.

The purpose of Amendment No. 2 is obviously straightforward. It is to enable complainants to see the factual summary of the commissioner's draft report after the investigation is complete, so that they can comment on factual errors or omissions. At present the body or person complained about does have access to the draft report, but the complainant does not. Surely this practice is against the spirit of fairness and openness which is supposed to inform the new NHS complaints system right the way through, and particularly the work of the ombudsman.

After all, at the risk of opening old disputes, noble Lords will vividly remember the advantages that were supposed recently to accrue to those Ministers who had foresight of the recent report by Lord Justice Scott. On that occasion an enormous and, in my view, justified, public row ensued, about the rights of the Opposition to be able to see the report on an equivalent basis. No one is suggesting that the reports of the ombudsman in relation to health service complaints will be subject to that degree of partisan approval or disapproval. It is certainly unlikely that the clamour would occur about complainants within the health service. But it makes it even more important that the rights of the individual should be equated with the rights of the mighty machine of the ombudsman and the complaints committee--indeed, they must be ensured by statute.

This matter, as well as the previous one raised by Amendment No. 1, have been mentioned at every stage of the passage of this Bill through another place and your Lordships' House. In another place amendments rather similar to Amendment No. 2 received wide, all-party support. At Report stage, the Minister, Mr. Horam, said in a positive reply to my honourable friend Mr. McLeish,

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    "I will ask the commissioner to consider further his practice and invite the Select Committee on the Parliamentary Commissioner for Administration to look into, not only the question of the health commissioner, but that of the parliamentary commissioner--perhaps as a larger part of the total framework--and decide whether it is fully satisfied that the procedures that the commissioner has outlined are totally correct, and whether it should seriously consider moving towards the hon. Gentleman's suggestions and those made in Committee".--[Official Report, Commons, 25/1/96; cols. 546-7.]
Those made in Committee, as I have indicated, were supported by honourable Members on the Government side.

Since then the chairman on the Select Committee on the Parliamentary Commissioner for Administration, Mr. James Pawsey, MP, has written to the National Consumer Council which has been championing amendments about complainants' access to draft reports. Mr. Pawsey agrees in the letter that this is a matter worthy of further investigation, which he intends to take forward in the forthcoming inquiry into the Parliamentary Commissioner's annual report for 1995. Given this favourable climate on all sides, it seems entirely appropriate to try to ensure that this generally acceptable purpose is included and now placed on the face of the Bill. I beg to move.

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