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Lord Rowlands: I am grateful to my noble friend for his positive response to my amendment. I certainly do not want to push my luck further but I was anyway convinced by his case that there should be an obligation on the Assembly to get the agreement of the ombudsman. I am grateful to him for considering the idea that the formal consultation process will be recognised before the National Assembly exercises such power.
It has been a marvellous afternoon: I think that that is the fourth amendment to which we have agreement in principle. As someone who comes from the other place and never saw Ministers give anything away, it is a pleasure to be here.
Lord Roberts of Conwy: Perhaps I should begin by congratulating the noble Lord, Lord Rowlands, on his success in the Committee and his influence on the Government. Having said that, and although I am of course delighted with his success in gaining further government consideration of his amendment, I must point out that I began by saying that the amendments tabled in my name in this group are probing. I am grateful to the Minister for the enlightenment that he has given on several of them.
However, I refer him again to the fact that it is often after appeals and inquiries that complaints arise. The recent experience of the Children's Commissioner for Wales is relevant. He has had to reopen certain cases that we all thought had been fully dealt with. Such matters may well be referred to the ombudsman. I note that the Minister said that the ombudsman is not a further appeal, as it were. Perhaps not, but he should surely have the power to take up a complaint, if he thinks it justified, that may arise subsequent to an appeal to the Minister or the Assembly. I hope that that matter will be further considered by the Government.
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I am also grateful for the Minister's comments on education. The point of my Amendment No. 27 was, as I said, simply to discover what aspects of education are left for the ombudsman to investigate after all the considerable exclusions. In discussions on the Education Bill, we were told by the noble Lord, Lord Filkin, that there would be scope for the ombudsman to deal with educational matters. However, as I do not have the precise quotation from him to hand, I shall rest on his assurance and the assurance that we have received from the Minister today that he will further consider the whole area of education in relation to the ombudsman. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 10 [Other excluded matters]:
[Amendments Nos. 25 and 26 not moved.]
Schedule 2 [Excluded matters]:
Clause 11 [Decisions taken without maladministration]:
Lord Evans of Temple Guiting moved Amendment No. 28:
Page 5, line 26, leave out "clinical judgement" and insert "professional judgement which appears to the Ombudsman to be exercisable in connection with the provision of health or social care"
The noble Lord said: This is the first government amendment. There are one or two of them. The Committee may remember that I said previously that we would be tabling one or two.
Clause 11 sets out the general principle that the ombudsman,
"may not question the merits of a decision taken without maladministration by a listed authority in the exercise of a discretion".
It also sets out an exception to that rule: namely, that the merits of a decision,
may be questioned by the ombudsman. I gave notice at Second Reading that a government amendment on the clause might be tabled. I tabled it last week and wrote to the noble Lord, Lord Roberts of Conwy, explaining my reasons for doing so. I copied that letter to several noble Lords who took part in the debates and have a strong interest in the Bill. I also placed a copy of the letter in the Library. I should be happy to provide further copies of that letter on request to any noble Lord who may find it helpful.
The ombudsman designate, Mr Adam Peat, has pressed for amendment to the clause. He is concerned to ensure that he will have adequate powers to consider the consequences for individuals of decisions made as a result of the exercise of professional judgment across
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a wider arena than matters of clinical judgment, narrowly conceived. The Government believe that the amendment will give him those powers.
As I explained in the letter, the amendment would extend the ombudsman's powers, enabling him to question the merits of a decision taken without maladministration in consequence of the exercise of professional judgment in connection with the provision of health or social care. Such professional judgment will of course include clinical judgment, but it will go wider.
The provisions in Clause 11 as drafted reflect the position in the Health Service Commissioners Act 1993. That Act makes provision for the powers and jurisdiction of the Welsh and English Health Service Commissioners. The Health Service Commissioners are entitled to investigate complaints about service failure and failure to provide a service, as well as complaints of other maladministration against health bodies within their jurisdiction.
The Bill entitles the ombudsman to investigate maladministration, failure to provide a service and failure in a service provided across the whole range of the ombudsman's jurisdiction. The specific provision in Clause 11 broadly reflects Section 3 of the Health Service Commissioners Act. Section 3 of that Act places a limit on the Health Service Commissioners by providing that a commissioner may not question the merits of a decision taken without maladministration in the exercise of discretion by a relevant body. However, that limitation does not apply to the merits of the decision to the extent that it was taken in consequence of the exercise of clinical judgment.
As the Committee will be aware, the jurisdiction of the Public Services Ombudsman for Wales is much wider than that of the Health Service Commissioners, covering a wide range of authorities providing services in the public sector in Wales. In particular, local government falls within the ombudsman's remit and is responsible for the provision of most social care services in Wales. The fields of social and health care are becoming increasingly integrated and it is a reasonable precedent to consider whether other types of professional judgment in the health and social care arena should be treated in the same way as clinical judgment for these purposes.
The Government have concluded that in this context there is no reason to differentiate between clinical judgment and other professional judgment exercised in connection with the provision of health or social care to individuals. Social care, like health, is an area where users of public services are likely to complain of service failure as well as, or in addition to, maladministration, and where decisions based on the judgment of professionals are likely to have a significant impact on the service provided to individuals. It seems inconsistent and illogical that the judgment of doctors can be called into question, even where there has been no maladministration, but that the judgment, for example, of social workers or occupational therapists working alongside clinicians in an individual's case cannot.
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The government amendment, therefore, makes clear that decisions taken by a listed authority in consequence of professional judgments that appear to the ombudsman to be exercisable in connection with the provisions of health or social care would, for these purposes, all be treated in the same way. We think that that is a reasonable and fair approach. It would be very odd for clinicians and other professionals working together, for example, in relation to health and community care services, to be treated differently in the case of a complaint to the ombudsman about decisions made in relation to the care of the individual. I beg to move.
Lord Livsey of Talgarth: I welcome the amendment. Social care is a very hot topic in Wales. Local authorities have had their policies—and, on some occasions, their lack of delivery—examined very carefully. This is a distinctly positive move forward, especially as it reflects maladministration, which is particularly relevant.
Lord Roberts of Conwy: I, too, welcome this significant amendment. We are grateful to the Minister for explaining the reasons behind the change. It takes the remit of the Welsh ombudsman way beyond that of the Health Service Commissioner under the 1993 Act. We are also grateful to him for supplying a note on the change before Committee stage.
I was particularly impressed with paragraph 7 of the note, which states:
"as the new Ombudsman's jurisdiction is much wider than the Health Service Commissioner's, the question arises whether there are other types of professional judgement in the increasingly integrated field of health and social care which might form the basis of decisions that the Ombudsman should be able to question, just as he can question decisions taken in consequence of the exercise of clinical judgement".
One can think of a variety of such judgments in the area of social care, as the noble Lord, Lord Livsey, said. They are usually taken by professionals at case conferences, are they not?
I think that I am right in saying that the ombudsman is not empowered to question the judgment itself but he is entitled to investigate the subsequent decisions and actions taken or not taken. I would be glad if the noble Lord would confirm that. The professional judgment referred to includes clinical judgment. I cannot imagine that the ombudsman would try to second-guess a clinician's judgment in the health service, but I may be wrong.
The immediate implication for listed bodies is that they must take a careful note for the record of any such judgments, and the decisions and action that flow from them, which may be subject to subsequent scrutiny; otherwise, they may find themselves at fault. I hope that they will be advised of that.
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