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By contrast, the complaints procedure should be designed to explain exactly what has happened and why. Patients should then be free to pursue a legal claim for compensation if that is what they choose, armed with the facts. Linking complaints and compensation is likely to deter clinicians from being open. The award of compensation will inevitably be seen as a reflection of culpability and the severity of the error made by the doctor. Awards could well be reported in the local press, and adverse publicity will reduce public confidence in the NHS. That goes against the declared wish of the Department of Health to move away from the current blame culture to a more open NHS, in which everyone works together to learn from adverse incidents and near misses.
Incorporating compensation into a complaints procedure creates the significant risk that complaints will not be readily resolved, leading to a greater bureaucratic burden on the NHS. It could result in a two-tier system, with claims worth less than £5,000, for example, being determined on some woolly notion of acceptable standards, and those over the threshold being considered against more rigorous standards. The link between the two could also create a disincentive to be satisfied with an apology, which is a matter to which I referred in Committee. It is an uncosted proposal that could cost the NHS vast sums of money.
Clause 111(1) is intended to set out in general terms what a complaint may be about. Amendment No. 367 would broaden who may make a complaint and set out in slightly more detailed terms what a complaint may be about.
The proposed subsection (1) would allow complaints to be made other than by individual patients. That is where the problem starts. I am not sure that the noble Baroness intended that complaints could be made, for example, by contractors providing services to the NHS, but that would be one effect of the amendment. It may be, however, that the intention is to allow complaints to be made on behalf of one or more patients by a representative bodyand I understand the reason why this might be put forward. However, there is a problem with that approach. The focus of the complaints system must be on the individual patientthat is what we have been about in the consultation processand his or her particular care and circumstances. There are other and more appropriate means by which groups of patients or carers, or representative bodies may raise their
Proposed subsection (2) raises fewer concerns, but I am afraid that I must return to what I said in Committeethat it would put too great a level of detail on the face of the Bill. We believe that regulations are a better and more effective way of doing this. As regards proposed subsection (3), I assure the noble Baroness that it is our intention that regulations will make provision for all those listed in paragraphs (b) to (e) to make a complaint as representatives of a complainant. We believe that regulations are the right way to do that for the following reasons.
The amendment would allow almost anyone to represent an individual patient but makes little reference to the patient him or herself, his or her consent to having the complaint made and the involvement he or she might have in the process. The amendment is too narrow. We consider that regulations are needed in this area to provide important detail to deal with issues of consent, incapacity or cases where a judgment has to be made about the suitability of a representative. I therefore believe that this amendment would not add any value to the Bill. Regulations, on the other hand, subject to appropriate consultationI stress thatwould actually increase the overall effectiveness of its provisions. I hope that the noble Baroness will look kindly on that explanation.
I turn to the probing Amendments Nos. 368 and 369. I am shocked that the noble Earl forgot Wales again considering that he seems to be completely preoccupied with it in other parts of the Bill. These amendments would have the effect of requiring that the first regulations made under these clauses are treated under the affirmative resolution procedure. We believe that that would cause problems.
Section 191(4) of the Bill stipulates that any power to make regulations under this Act is exercisable by statutory instrument. This has been normal practice in relation to the regulation-making powers of all such legislation covering the regulation of health and social care services. It is also normal practice for the negative resolution procedure to be used for the making of these regulations. It was significant that the Delegated Powers and Regulatory Reform Committee remarked in its report of September 2003 that since its inception the NHS has left a great deal to subordinate legislation subject to the negative procedure and directionsit is worth reiterating thatand that the basic framework has been maintained on successive reorganisations, including those effected by various enactments of recent years. The committee concluded that it did not consider that the number of delegated powers in the Bill was cause for concern.
That indicates a degree of satisfaction with the process. In addition, in terms of transparency and public interest, we have been very open throughout our debates about the reasons for reforming the way in which complaints are handled under the procedures. We set out a very clear programme, NHS complaints reformMaking things right, which was published in March. It sets out the way forward for reform. In Committee, I stressed that we were aiming for a system that streamlined and simplified the complaints system, clarified roles and responsibilities and involved patients and service users. The clauses make clear our intentions on how that will be covered in regulations.
I reiterate assurances that we are committed to involving all stakeholders in the public discourse to ensure that we get the details of the procedures right. I stress again that we will be consulting on the content of the regulations to ensure that they reflect the needs of patients, service users and others. That will, of course, include consultation with the Data Protection Commissioner. That is a very important part of what we are going to do.
As I made clear in Committee, and as the noble Lord mentioned this evening, the clauses provide for the first time for the details to be subject to regulations. It is important that the regulations will build on the structure of the existing provisions. That vastly improves the current provision, whereby the complaints procedures are subject in some cases to regulations and in others only to a variety of directions. That change will strengthen the complaints procedure.
The regulations will provide for who may complain and about what, what people can expect by way of a full and prompt response and, where appropriate, a review of the complaint by a body completely independent of the organisation complained about. They will also place responsibility with health and social care organisations for making effective responses to complainants.
For all those reasonsthose on the practice and those relating to the provisions that we are making for comprehensive consultationI hope that noble Lords will be persuaded that it is not necessary to make the regulations subject to affirmative resolution procedure.
I shall turn to Amendment No. 372 and the words of the noble Baronesses, Lady Finlay and Lady Barker. We dealt with a similar amendment in Committee when the noble Baroness, Lady Finlay, was unable to be with us. I am pleased that she was able to speak to the amendment this evening. Amendment No. 372 is to do with making financial redress available through the complaints procedure for severe inconvenience caused by administrative error.
As I said in Committee, NHS bodies are already able to make ex gratia payments where legal liability would otherwise be conceded, and NHS bodies will continue to have that flexibility under the reformed NHS complaints procedure. The amendment would also apply to social care but, again, there is already provision for payments to be made by local authorities where they consider that their actions amount to maladministration. None the less, the noble Baroness makes the valid point that NHS bodies, unlike other similar public bodies, are not able to make financial redress available for severe inconvenience caused by administrative error. That issue would benefit from further deliberation.
I say that because, as I mentioned in Committee, the Chief Medical Officer has carried out an extensive review of the way in which the NHS handles cases that may involve clinical negligence. The consultation document, Making Amends, was published in June 2003. It included recommendations designed to draw the systems for dealing with complaints and clinical negligence more closely together. Subject to the result of that consultation, we shall be considering the alignment of the complaints and clinical negligence systems. We shall do that in terms of processfor example, the recommendation that the possibility of legal action should not halt the complaints system, bringing it to a crashing halt, as it does nowand in terms of outcome, examples of which are explanations, apologies and compensation.
On compensation, I should say that the consultation on Making Amends will also consider the link between complaints and payment. It will look at the arguments for and against. I can therefore assure both noble Baronesses that we will consider the points raised by the amendment as part of the consultation on Making Amends.
Amendments Nos. 370 and 371 are essentially technical drafting amendments recommended by parliamentary counsel. Amendment No. 370 has been tabled for the sake of completeness. It makes clear that the regulations stipulate not only who may complain and about what, but also, as the noble Baroness, Lady Barker, said, to whom the complaints may be made.
Amendment No. 371 is necessary to ensure the consistency of the clause with Clauses 111(1) and 112(1), which concern the handling and consideration of complaints. Amendment No. 373 makes clear that regulations under the Bill may make provision requiring persons handling complaints to make information available to the public. That is our response to an amendment proposed in Committee by the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Barker. We pointed out that we were sympathetic at that time. The noble Baroness seems not to be quite satisfied, but we have made a gesture in response to her points and we hope that it will be sufficient.
The intention of our policy has always beenI do not think that I need to remind noble Lords of itthat information about the complaints procedures should be made available to members of the public free of charge. The amendment makes that commitment explicit in the Bill.
Baroness Barker: My Lords, as ever the Minister has put in an impressive performance and addressed every point one by one. I draw comfort from the fact that one of the main reasons for her resisting Amendment No. 367 was the existence of patient forums. In light of our debates earlier this afternoon, I take that as a heartening sign.
It has been useful to go over the ground again. I accept the noble Baroness's identification of a deficiency in the amendment; namely, the absence of any mention of consent and incapacity. She will know that I will again be discussing those issues in another place tomorrow afternoon. That is a fair criticism.
I am heartened to learn that the regulations will recognise the intent of subsection (3). Most people who are in acute hospitals are so ill that they are in no condition to make a complaint. It is the people about them who see what is wrong who, for good reason and reasons linked to incapacity, need to make complaints.
I also take heart from the Minister's comments about the alignment of the complaints and negligence procedures. I hope that there is a positive outcome to that. Perhaps I should not have been so ungracious in my reception of her amendments. Following her fuller explanation, I welcome them a lot more warmly than I did about 10 minutes ago. I beg leave to withdraw the amendment.