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Health Service Commissioners (Amendment) Bill

Volume 569: debated on Thursday 29 February 1996

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7.54 p.m.

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee. —( Baroness Cumberlege.)

On Question, Motion agreed to.

House in Committee accordingly.

[The Lord Cocks of Hartcliffe in the Chair.]

Clause 1 [ Providers to be subject to investigation]:

moved Amendment No. 1:

Page 1, line 14, at end insert ("or to purchase or commission health services for the population of any Health Authority Area.").

The noble Baroness said: In moving this amendment I wish to speak also to Amendments Nos. 2 and 3. I welcome the Committee to the uncontroversial subject of the National Health Service!

The purpose of Amendment No. 1 is to fill a gap in the health service commissioners' remit so that the activities of local purchasers, or—as they are often called today—commissioners of health services, can be included. At the moment it appears that only providers of health services fall strictly under the commissioners' responsibility. As Members of the Committee will know only too well, in the new organisation of the NHS, a "provider" has a specific meaning. I hardly need tell the Committee that providers are those who directly give services to patients, whether the providers arc family doctors, community services or hospitals.

Those who purchase or commission the services may be GP fundholders, but are also important local health commissioning agencies, or—as they will be under the new arrangements from April 1996—unitary health authorities embracing both the old DHAs and the old FHSAs. They are, and will be, responsible for funding and assessing the health needs of populations. They were described in the original legislation as the "people's champions" and they arc the bodies with the ultimate responsibility for health in each area. This responsibility will become even more important once the statutory regional authorities—the next tier of health authorities which have existed—disappear at the end of next month. I hope the Minister will agree that it is therefore important that they are specifically and explicitly included in the extended powers of the health service commissioners proposed under this Bill.

Decisions about purchasing can have a profound effect on services and care. Purchasing is about choosing priorities for care within finite resources. If, for example, a local purchasing authority makes a decision only to have one MRI scanner within its statutory area, although it may have three provider trusts—three hospitals—that would affect the level of care on offer in that particular health authority's area. If a patient felt that he or she had suffered and wished to make a complaint because an MRI scan was not immediately available as a result of a purchasing decision that only one scanner would be available within that authority, in my opinion, that complaint would surely he more properly directed towards the purchasing authority rather than the provider health trust, which would house the scanner and directly provide care. Yet, as I understand it, the Bill does not explicitly allow for complaints against those purchasing authorities.

Further, as has happened recently, a purchasing authority may decide not to commission any services at all in a particular clinical field. The example is often given—I think correctly—of IVF treatment being limited to a few specific age groups and a few specific cycles of treatment. Presumably, in those circumstances, an aggrieved woman who sought this treatment should be able to make a complaint. This would be a complaint about a lack of care, rather than a failure of care and would fall—if this amendment were accepted—under the ombudsman's remit. It is important that the activities of purchasing authorities are specifically included on the face of the Bill, particularly as I believe they will increasingly have to take hard decisions about priorities and levels of treatment to be provided in their specific areas. I beg to move.

As I understand it, these amendments are aimed at ensuring that employees of health authorities are covered by the ombudsman's remit. We do not believe there is a need for this amendment. The existing legislation governing the ombudsman already ensures that any health authority employee, and any decision or action taken by or on behalf of a health authority, can fall within the commissioner's remit. Section 7 of the 1993 Act specifically provides that the commissioner may conduct an investigation into matters relating to either NHS contracts, or contracts with the independent sector made by health authorities, boards and trusts.

I can understand that, despite assurances given by my honourable friend the Secretary of State in another place, the noble Baroness may still be concerned that the ombudsman is somehow prevented from investigating decisions by managers, and in particular purchasing decisions. I can assure her that the ombudsman can and does investigate such decisions, provided, of course, the complaint falls within his general remit. For example, he has upheld complaints against health authorities for failing to provide a service which it was the duty of the health authority to provide, such as failure to provide continuing care.

The Bill will also enable the ombudsman to investigate any clinical decisions involved in purchasing services. It will also bring GP fundholders and their purchasing decisions within his remit for the first time.

I can assure the noble Baroness, Lady Jay, that we have left no stone unturned in ensuring that the Bill, together with the existing legislation, allows the commissioner to investigate complaints about all NHS services and about purchasing decisions. Therefore, I hope that the noble Baroness will see fit to withdraw the amendment.

8 p.m.

I am grateful to the Minister for that reply. It is an important form of reassurance. Nonetheless, although I understand that much of the commissioner's activities depends on case law and that complaints have been upheld in this area, my concern remains that where there is an amendment to the basic legislation, as intended with this Bill, it would be appropriate to try to make it as specific as possible.

The anxiety that I tried to express in moving the amendment is that, as decisions about prioritising resources become more and more difficult and prioritisation in itself affects clinical provision and care at every level, there may well be difficulties about where the complainant should go with his or her complaint about what he or she may perceive as a rationing decision which has had an impact on the care and Treatment received.

I would be happier if it were made specific on the face of the Bill that care and treatment under the NHS also include purchasing decisions by commissioning authorities. However, given the clear reassurances from the noble Baroness, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[ Amendments Nos. 2 and 3 not moved.]

Clause I agreed to.

Clauses 2 to 4 agreed to.

Clause 5 [ Availability of other remedy]:

moved Amendment No. 4:

Page 4. line 18, leave out from beginning to ("after) and insert—
("(1) Section 4 of the 1993 Act (availability of other remedy) shall be amended as follows.
(2) Subsection (1)(b) shall be omitted.

The noble Baroness said: The Minister will remember that at Second Reading the whole House welcomed the powers given to the Health Service Commissioner to inquire into clinical judgments. Amendment No. 4 removes Section 4(1) of the 1993 Act, which at present prevents the commissioner from conducting an investigation if the complainant has or had a remedy by way of proceedings in any court of law. Therefore, if the complainant has the possibility of taking legal proceedings, the commissioner will now face no statutory bar to undertaking an investigation. Particularly in cases concerning clinical judgments, there will often be more than one route for redress. However, there is a problem as the Bill stands at present.

I recognise that one of the main aims of extending the commissioner's powers to cover clinical judgment is to ensure that there is less litigation. We welcome the fact that complainants will no longer be forced to go to the courts through lack of options, or be denied access because of the cost of seeking that remedy. However, complainants who want an investigation by the commissioner and also want to seek damages should not be prevented from so doing. The commissioner himself, in his consultation on the extension of his powers, recognised that legal proceedings provide no assurance That any action will be taken to prevent a recurrence of the matter complained about, whereas his investigation can give such an assurance. On the other hand, he cannot award damages. Therefore, the outcome of those two routes is quite different, and often the complainant would like to sec them both implemented. In addition, the complainant may not be certain about the outcome he is seeking.

Research has shown that most patients, when they begin legal action or apply to the health service commissioner for an investigation, are mainly looking for an apology and want to find out what happened and why it happened and, above all, they want assurances that it will not happen again to any other patient. That may well have been their very first concern. Financial considerations can be a secondary concern. However, at present under the Bill the patient is in an either/or situation, because the commissioner cannot ensure that they receive compensation and the courts cannot ensure that there is redress and that the problem complained of will not happen again.

Secondly, on many occasions it will be difficult for the patient to know whether to opt for legal action in a court. In clinical judgment cases it may often take some time before it becomes clear that there is a case for compensation to be answered in court. Complications resulting from treatment can sometimes take six months or up to a year to manifest themselves. However, a complainant is expected to undertake not to pursue legal action after the commissioner has investigated. Therefore, the complainant has lost his opportunity to go to the courts. I believe that that is not fair.

I hope that the Minister will be able to meet my anxieties on this question and agree to the amendment. I beg to move.

I understand what the noble Baroness seeks to achieve with the amendment. However, we believe that the amendment goes far beyond the scope of the Bill. It also raises radical questions about the role of the ombudsman in relation to the courts, bringing his health service remit out of line with his parliamentary one. It would seriously undermine the whole objective of the reformed complaints system, which I know the noble Baroness strongly supports, to ensure that complainants are dealt with openly and honestly while being scrupulously fair to the professionals and staff concerned.

The amendment would revoke the provision in the 1993 Act which ensures that the commissioner's role does not usurp the role of the courts. The commissioner is prevented from investigating a complaint where the person has a remedy which could be pursued through the courts, except if the commissioner is satisfied that it is unreasonable to expect the person to resort to the courts. The commissioner's role is not and never has been to determine questions of clinical negligence or to give complainants damages. That is for the courts to decide. His role is and always has been distinct from that of the courts.

What the commissioner can offer is an investigation and explanation of the facts, recommendations for an apology to be made and for matters to be put right both for the complainant and for other patients. We know that that is what the vast majority of complainants warn to achieve, as the noble Baroness said. We hope that the Bill will help some people who otherwise might have felt that the only way to achieve that is through an expensive and stressful legal process. However, the Bill should help to reduce the incentive to resort to litigation.

The commissioner's paper makes it clear that in deciding whether to investigate a case which could have gone to court, he will carefully consider what the complainant seeks to achieve. Where the complainant's primary concern is to obtain damages, or there is evidence that he is already seeking or considering a legal remedy, he will be unlikely to investigate. It would be quite wrong for people to embark on fishing expeditions and to use the process as a means of trying to build up a case for seeking damages in the courts.

If complainants could have an ombudsman investigation at the same time as taking legal proceedings, the professionals and staff concerned could be put in the impossible position of having to respond to an ombudsman's investigation at the same time as defending themselves against legal proceedings.

I hope that in the light of what I have said, the noble Baroness will not seek to press the amendment.

I understand the problem with my proposition. However, it seems to me such a tragedy because I know that in most cases, even when a case goes to court, the complainant desperately wants to prevent the same thing happening to someone else. We ought to be able to devise a system whereby that can be achieved. I may be mistaken in thinking that it can be achieved through the health service commissioner. Perhaps the system of judgment in a court case should include a remedy and recommendations to the institution. I am not quite sure which way to deal with the issue. However, for today, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 5:

Page 4, line 32, at end insert (", or
( ) a complainant has elected to refer the action to a Commissioner with a request for investigation before the other procedure is exhausted.").

The noble Baroness said: The purpose of the amendment is to give health service complainants the opportunity to refer their concerns to the ombudsman before the earlier complaints procedure has been exhausted. I imagine, indeed I hope, that those would be in exceptional circumstances.

In his extremely helpful paper on his new responsibilities, the commissioner says that he will not normally investigate a complaint until NHS procedures have been exhausted. We all hope that those procedures will go smoothly, with everyone involved happy that the complaint is being considered at the first and second stages on the famous level playing field. Indeed, we would hope that most complaints would be satisfactorily resolved during those local proceedings and would never reach the ombudsman's desk.

However, it seems at least theoretically possible that there will be occasions when a complainant feels that his or her case is not being totally fairly treated: that perhaps because of a history of personal antagonism, the position is being distorted or inadequately represented. We perhaps can all think of situations in which a particularly had personal relationship, possibly between a doctor and a longstanding "difficult" patient, might lead to the difficult patient feeling that somehow his case was not being appropriately advocated. That potential suspicion is increased by the fact that in the early parts of the complaints procedure the whole process will be in the internal hands of some of the trusts and some of the health service managers who could, in the worst circumstances, be accused of possible collusion with local clinicians and their own colleagues.

The third possibility of concern for the complainant is a potentially difficult and longstanding delay in procedures which in the worst circumstances could be construed as deliberate, leading to a legitimate complaint and a wish on the part of the complainant to accelerate the procedures towards the ombudsman.

In his paper, the commissioner says that he is prepared to act on his own discretion where there are instances of what are described as "unreasonableness". However, as so often in the Bill, there is difficulty about precisely what constitutes "unreasonableness". The amendment gives the discretion, the choice, to the complainant, where I feel that it should surely lie. The amendment would not make it necessary for the ombudsman to investigate every case which might be referred earlier in the complaints procedure. It would simply allow the complainant to choose that route if or she so wished.

I remind the Committee that this proposal was included in the original Wilson Report on which the Government's reform of the complaints procedure has been based.

At Second Reading, I quoted from the 1993 report of the Select Committee for the Parliamentary Commissioner for Administration which stated:

"'The complaints system in the NHS seems designed for the convenience of providers of the service rather than complainants"'.—[Official Report. 12/2/96: col. 485.]

At Second Reading the Minister agreed with me that there were aspects of the present system which could be described as an unfriendly maze. Undoubtedly, as all sides of the House agreed at Second Reading, the proposals in the Bill are an important step towards making procedures more accessible and increasing the rights of NHS users when they wish to complain. The amendment simply improves their position still further. I beg to move.

8. 15 p.m.

I support the amendment. As the noble Baroness, Lady Jay, said, we all know of occasions when there is animosity between a member of the medical profession or staff and the patient going through the complaints procedure. We also know that on those occasions there can often be deliberate, excessive delay. The patient feels that however much we claim to have improved the complaints procedure it will not satisfy him.

I support the amendment because it gives the complainant the right to refer to the commissioner. It does not force the commissioner to investigate, but I am sure that it would alleviate much of the frustration of some complainants who feel that they are not being properly looked after.

The amendment would have the effect of nullifying Clause 5 by allowing a complainant to choose whether or not he should exhaust the local NHS complaints procedures before investigation by the ombudsman. Clause 5 gives the ombudsman discretion to investigate a complaint without the local procedures having been invoked or exhausted. He has to be satisfied that it is not reasonable in the particular circumstances to expect the complainant to have invoked or exhausted them. The ombudsman believes, however, that complainants should normally seek first to resolve their concerns through the local complaints procedures. That is in line with accepted good practice in other parts of the public sector and, for example, in the case of complaints to regulators such as Oftel and Ofwat. In her Citizen's Charter Complaints Task Force report, Lady Wilcox recommended that public services should provide an opportunity for independent review of complaints before they reach the ombudsman. That is precisely what we are seeking to achieve through our reformed NHS complaints procedure. We must give the new system a chance to work properly.

The amendment would remove the ombudsman's discretion and leave it entirely up to the complainant whether or not he exhausted the procedures. We do not believe that to be right or sensible, or indeed fair to NHS staff and professionals. It could cause the ombudsman's office additional operational difficulties.

The ombudsman has given in his paper two examples of cases where he might consider it unreasonable to invoke or exhaust the local procedures: where there has been excessive delay in handling the complaint; or where, in very exceptional circumstances, the complainant's confidence in the local complaints arrangements has completely broken down. There may be other examples. The ombudsman will need to decide each case on its merits. In the light of my remarks I hope that the noble Baroness will not press the amendment.

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 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 be 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]:

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

    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.

    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",

    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.

    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, 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.

    My Lords, I beg to move that the House do now adjourn during pleasure until five minutes to nine o'clock.

    Moved accordingly, and, on Question, Motion agreed to.

    [ The Sitting was suspended front 8.35 to 8.55 p.m.]