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Baroness Finlay of Llandaff moved Amendment No. 25:
- Leave out Clause 27.
The noble Baroness said: My Lords, the amendment refers specifically to the clause relating to complaints against regulatory bodies. When the clause was last debated, the Minister pointed out the importance of allowing members of the public to press for an explanation of delays, when they have made a complaint against a healthcare professional. The noble Lord, Lord Turnberg, warned against a system that automatically allowed every complaint to come to the council if the complainant was dissatisfied.
The complaints procedures laid out here cause me great anxiety. Each regulator must have an appeals system in place and be able to receive complaints against the way in which it has conducted its business. Within its internal complaints procedure, the regulator must have a system for resolving such complaints. If the complaints are major, the body should—must—have a procedure for external review of its procedures. However, the internal complaints procedure should allow a complainant to return if he feels that his complaint has not been adequately heard or processed. There is no dispute that there must be a system that allows people to come back.
The data on such complaints will be contained in the annual report of the regulatory body. If the procedures are not conducted adequately, it will be evident from the report, as will the fact that the standards set for the complaints procedure are not being adhered to. There is now provision for the council to direct a regulator to alter its code of practice through the affirmative resolution procedure. That has already been debated.
If the complainant is not satisfied that the regulator has listened adequately to the complaint about the processes of that regulator, it would be appropriate for the complainant to go then to the health service ombudsman. I am concerned that, if the complaints procedure is internal to the council, the council will receive an inordinate number of complaints that should be dealt with by the individual regulator. It will undermine the council's ability to be an overarching body that can ensure that there is equity in complaints procedures.
My other concerns relate to the fact that there will be different patterns of healthcare delivery in different parts of the United Kingdom. The regulation of healthcare professionals is a reserved power: so it should be. There may be a situation in which a decision is made about a complaint against a healthcare professional acting in a certain way in one part of the United Kingdom, such as Scotland or Northern Ireland, that could, at face value, set a precedent. It could be that a similar-seeming complaint made in England could be treated in the same way, although, in fact, it should be interpreted differently when the relevant regulatory body consider the minutiae of the issue. Decisions are often similar on the surface but turn out to be fundamentally different. Another problem is that under Clause 27(3) and (4), the council will act as a court—over and above the regulators. The noble Baroness, Lady Noakes, previously alluded to a difficulty in relation to the delicate issues surrounding confidentiality and disclosure. I beg to move.
6.30 p.m.
Baroness Noakes: My Lords, the noble Baroness raised some important points, with which I sympathise. Clause 27 is something of a Cinderella. We did not discuss amendments to it in Committee because we came to it at the end of the fourth day in Committee and it was getting very late. Also, it was practically the last clause to be discussed on Report. I am not clear that we have discussed all the important issues that arise from the clause.
Clause 27 gives wide powers to the Secretary of State to establish complaints procedures—many of which can override the provisions of the regulated bodies. I refer in particular to Clause 27(2)(g), which allows the Secretary of State to specify what happens in relation to the important area of confidentiality.
On Report, the Minister said that the Government's decision was that Parliament should decide on important and sensitive issues. It is not that simple. Admittedly an order made under the clause will be by the affirmative procedure, but we know that your Lordships' House and another place can do little to
orders. We have no ability to amend, so are left with the possibility of rejecting the whole order—which is often taking a sledgehammer to crack a nut.The Secretary of State will be the decision maker, which adds to Clause 27 being unsatisfactory, with worrying implications—particularly in relation to important matters that are properly dealt with by the regulatory bodies but which could be overridden. We do not know how the powers will be used. The Explanatory Notes are silent and the Minister has said nothing—certainly not in your Lordships' House—about the Government's intentions. Will the Minister say how and when the Government intend to use the powers in Clause 27? What consultation will there be before those powers are used—and what role does he expect the professional bodies to play in the development of a further tier to the complaints procedure?
Lord Hunt of Kings Heath: My Lords, I am not in a position to give a timetable for which such regulations might be brought before Parliament, but of course there would be full consultation. The regulatory bodies themselves will no doubt play an important role in putting forward their own views.
Clause 27 is one of a number of clauses that develop the theme of the careful balance that we have attempted to strike between the benefits of self-regulation, the role of the regulatory bodies and the overriding public interest. The changes made as the Bill has progressed through both Houses have achieved that balance—which is why the regulatory bodies have expressed satisfaction with the outcome of discussions.
Clause 27 is not to be seen as a means of overturning decisions of fitness-to-practice committees but as a power to investigate maladministration. The noble Baroness suggested that the ombudsman should have a role in relation to the regulatory bodies—but they are not subject to any ombudsmen because they are not government bodies. Our debates would suggest that none of us wishes them ever to be seen as government bodies. If an ombudsman cannot be involved, there is a persuasive argument for the council to carry out that function in relation to maladministration.
While I hold the regulatory bodies in the highest regard, one cannot say that all of them have uniformly been particularly efficient in conducting their own disciplinary cases. In the past, some complainants have been the subjected to long waits, have had little idea about the progress of their cases and have received little information about the process as a whole.
The regulatory bodies themselves recognise those problems and are working hard to put them right— but a backstop is needed, to permit another
body to investigate where there is evidence of maladministration. Clause 27 provides that ability. Regulations for its operation would have to be brought before your Lordships' House and be subject to the affirmative resolution procedure, which will provide sufficient safeguards.
Baroness Noakes: My Lords, would the Secretary of State only trigger the powers in Clause 27 if there was evidence of maladministration among the regulatory bodies?
Lord Hunt of Kings Heath: No, my Lords—I would not say that at all. It is clear that we will wish to establish a scheme and produce the necessary regulations in due course.
Baroness Finlay of Llandaff: My Lords, I am grateful to the Minister for going some way to providing reassurance in respect of the questions asked by the noble Baroness, Lady Noakes. I am slightly concerned that the Minister has left the matter so open. I am glad that the concept of maladministration will be the underpinning principle by which Clause 27 could be invoked. There is certainly a need for some form of backstop to protect the public. The Minister is correct when he says that delays in processing complaints cause undue tension and distress. While there are still some gaps left, I am grateful for the Minister's reassurance that there will be limits on the way that Clause 27 is used. I beg leave to withdraw to amendment.
Amendment, by leave, withdrawn.
Schedule 6 [The Commission for Patient and Public Involvement in Health]:
Lord Hunt of Kings Heath moved Amendment No. 26:
- Page 87, line 33, at end insert—
On Question, amendment agreed to.
Lord Hunt of Kings Heath: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(Lord Hunt of Kings Heath.)
On Question, Bill passed, and returned to the Commons with amendments.
"5A (1) The Secretary of State may direct a Special Health Authority to exercise—
(a) his function of appointing the chairman under paragraph 3, and
(b) any functions conferred on him by regulations made under paragraph 4 in relation to the appointment or the tenure of office of the chairman and the other members.
(2) If he does so, the 1977 Act has effect as if—
(a) the directions were directions of the Secretary of State under section 16D of that Act, and, accordingly,
(b) the functions were exercisable by the Special Health Authority under section 16D."
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