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Health Service Commissioner for England (Complaint Handling) Bill

Volume 760: debated on Friday 13 March 2015

Second Reading

Moved by

My Lords, I should like to express my gratitude to the right honourable Member David Davis, MP for Haltemprice and Howden, for inviting me to sponsor his Private Member’s Bill in this House. The Bill has the support of the Government and the Opposition, as I understand it. As noble Lords may be aware, the Bill was motivated by the tragic death of Sam Morrish and subsequent events. Sam died of septic shock at the age of three, on 23 December 2010. In June 2014, the health service ombudsman published a report on an investigation into a complaint made by Mr and Mrs Morrish about the care and treatment provided to their son Sam. Mr and Mrs Morrish also complained about the way in which the NHS investigated the circumstances surrounding Sam’s death.

Sam Morrish and his family came into contact with a number of NHS organisations in the days before he died: the Cricketfield surgery, Devon Doctors Ltd, NHS Direct and the South Devon Healthcare NHS Foundation Trust. In her investigation, the ombudsman found that each of these organisations had in some way failed Sam. In the ombudsman’s report into Sam’s death, Dame Julie Mellor, the health service ombudsman makes reference to her report on sepsis, Time to ActSevere Sepsis: Rapid Diagnosis and Treatment Saves Lives. This report highlighted the lack of action being taken to save the lives of people with sepsis because a failure rapidly to diagnose and treat can have tragic consequences. Indeed, the tragedy is that the ombudsman found that had Sam received appropriate care and treatment, he would have survived.

However, it took the ombudsman more than two years to investigate and report on the NHS’s handling of Sam’s case. During that time there was a series of factual errors, which Mr and Mrs Morrish repeatedly had to correct. The Patients Association, which supported the Morrish family in its complaints, said that the ombudsman was not fit for purpose. Dame Julie personally apologised to the family and offered to meet to discuss the case. Importantly for this Bill, she said:

“We took too long to investigate this case and made errors in the draft report. I recognise the family’s experience of us has contributed to their distress”.

I agree. Any unreasonable delay in investigating cases adds to the distress of those involved. As David Davis explained in the other place, delay impacts adversely on those grieving and also means that it takes more time to act to correct failings. Reducing unnecessary delay in investigating cases also reduces the distress of those involved, and the Bill seeks to do just that.

This is a simple Bill. Clause 1 is the important part. In summary, it makes provision about the handling of complaints by the Health Service Commissioner for England, which is the legal name for the health service ombudsman. It requires the ombudsman to notify a person making a complaint of the reason for the delay if the investigation of the complaint is not concluded within a 12-month period, and to include in her annual report to Parliament details of how long investigations of complaints have taken to be concluded and action taken, with a view to concluding all investigations within a 12-month period.

As noble Lords will be aware, the health service ombudsman carries out independent investigations about unfair, improper or poor service by the NHS in England. This is the second and final stage of the NHS complaints process. The ombudsman is independent of government and accountable directly to Parliament through the Public Administration Select Committee. She annually lays before each House of Parliament a general report on the performance of her functions. Having looked at her annual reports, I commend Dame Julie for modernising the way that her office works. In challenging circumstances, and across both its parliamentary and health service functions, she has increased the number of cases investigated from 421 in 2011-12 and 384 in 2012-13, to 2,199 in 2013-14, with that figure expected to rise further in 2014-15.

The majority of complaints are reviewed and assessed with strong judgment and in a timely fashion, but certain high-profile cases, particularly that of Sam Morrish, suggest that the ombudsman might benefit from legislative backing to reduce the number of investigations that take longer than 12 months to complete.

I am glad to see the noble Lord, Lord Colwyn, in his place. It is worth noting that concern over NHS complaints is long-standing. Some years ago, he introduced a Bill to try to address this, long before the ombudsman was in place. It was also long before we had the excellent review of NHS hospitals’ complaints systems by the right honourable Ann Clwyd MP and Professor Tricia Hart. They made a number of recommendations to improve the way NHS complaints are handled. I know that from her loss Ann Clwyd MP has put her heart and soul into trying to tackle the system and to raise awareness of the right way to complain about the NHS and the right of people to make such complaints. It is important for all involved in the NHS complaints process to get it right at every stage.

Likewise, when the ombudsman makes mistakes it is important that she takes an open and transparent approach both to the person making the complaint and to Parliament through the Public Administration Committee. In Committee in another place, Bernard Jenkin, who chairs the Public Administration Committee, gave his support to the Bill. He stated that it was important for his committee to see cases that had gone wrong. He referred to the wider programme of public service ombudsman reform taking place. Last year, the committee produced the report Time for a People’s Ombudsman Service, and I understand that the Cabinet Office is conducting a review into the reform of ombudsmen.

The Bill is therefore deliberately limited in its aims. It seeks to make small but important changes to the way the health service ombudsman operates. It recognises that a future Administration will determine how to proceed on wider, more general reform, while acknowledging that some changes made in the shorter term will significantly improve the experience of people taking their complaints to the health service ombudsman and better enable Parliament to hold the ombudsman to account. I thank David Davis MP for introducing this important Private Member’s Bill. I feel quite honoured to have been asked to do this, particularly because I know in some depth about the inquiry that Ann Clwyd MP conducted. I beg to move.

My Lords, I congratulate the noble Baroness, Lady Finlay, on bringing the Bill to the House. I welcome it and the changes, which she outlined, that the ombudsman has already been making internally. I shall comment on the general complaints environment within which this falls.

As we know, public service delivery has become much more complex since the office of the ombudsman was established nearly 50 years ago. Many services are now delivered through a combination of public, private and third-sector providers, particularly in health and social care, where the boundaries between treatment and care and between providers are becoming blurred. Indeed, consumers often do not know whether they are patients or service users, who is providing the care, who has responsibility for the handover between health and social care when things go wrong or even whether their local authority retains responsibility for a care service provided by an independent organisation, albeit funded by the authority. Incidentally, the answer to the latter question is yes, the local authority retains responsibility.

Are we surprised when users or their families are confused about whom to complain to in the first instance or to which ombudsman to appeal should matters not be resolved? Social care is dealt with by the Local Government Ombudsman whereas health is dealt with by the Parliamentary and Health Service Ombudsman. The Public Administration Select Committee in the other place has helpfully explored these challenges. In April last year, it published a report whose very title tells a tale: Time for a Peoples Ombudsman Service. It recommended the creation of a new, unified public ombudsman, which the current Parliamentary and Health Service Ombudsman and the Local Government Ombudsman welcomed. Those two ombudsmen—actually, women in both cases, which is perhaps why they co-operate so well—share the Select Committee’s ambitious vision for reforming the landscape.

A unified ombudsman would provide a streamlined and seamless service for users, covering all public services delivered both locally and nationally in England, and all the UK non-devolved services. That is an exciting possibility which could not only empower consumers, but also—by the gathering of all complaint data—enable trends and persistent faults and shortcomings to be identified, so that preventive rather than just restitutive action can often be taken.

The Government have commissioned Robert Gordon to carry out a review of the ombudsman landscape in the light of this report, and I look forward to reading his recommendations. Can the Minister tell the House when he anticipates receiving that report, and whether the Government favour the Select Committee’s approach?

There is a real impetus for change, which could benefit consumers as well as the health service and social care. I hope I might be in a position to urge a new Labour Government to consider legislation to create a modern, single public ombudsman service. Failing that, however, I will be back, urging the Minister to do so, for the sake of citizens but also to achieve better value for money.

My Lords, the Opposition support the Bill and we are very grateful to the noble Baroness, Lady Finlay, for sponsoring it in your Lordships’ House. Obviously, it is important that investigations are completed as quickly as possible and that those who complain are kept fully informed of their complaints.

My noble friend Lady Hayter raised a very interesting question about the landscape, as she described it, of the ombudsmen. She was so right to talk about the complexity of health and social care provision. It is clear that there is a general movement towards integration of health and social care, as regards both service provision and governance—the Manchester example last week is but one example of that. It would therefore be interesting to hear what the Government think about whether we should have a more integrated approach to the role of the ombudsmen.

I also wanted to raise again with the noble Earl the report of the Morecambe Bay investigation, on which he reported to the House last week. He will know that there was criticism of the Parliamentary and Health Service Ombudsman in that report. That was with regard to a complaint from James Titcombe, the father of Joshua, who died in 2008 as a result of an infection that was missed for almost 24 hours despite clear signs. A series of failed communications followed between the Parliamentary and Health Service Ombudsman and the CQC, and, more significantly, within the CQC itself. That led the parliamentary ombudsman to believe that the CQC would take robust action and that a parliamentary ombudsman investigation of the complaint would add nothing significant.

I would be interested to know whether the noble Earl thinks that the ombudsman’s office has learnt lessons from what happened there, and—it is entirely within the context of the Bill—whether he is satisfied that currently and in the future there will be a much more integrated approach between the health ombudsman and the CQC, as well as, of course, in areas where you have an integrated health and care service for the local ombudsman, to take the point my noble friend raises.

My Lords, I very much welcome the debate on this important Bill. I thank my right honourable friend in another place, David Davis, and the noble Baroness, Lady Finlay, for their stewardship of the Bill, which makes the health service ombudsman more accountable to people taking their complaints to her and, more generally, to Parliament. A productive debate was had in the other place, with support for the Bill from all sides. Speaking for the Government, I hope that we can get the Bill on to the statute book as soon as possible, although I understand that parliamentary time is limited.

The Government very much support the principles that lie behind the Bill. It is a good Bill, and an important one. We are committed to continuing to improve the way in which complaints are handled across the health and social care systems and are actively encouraging the NHS to be more open and receptive to complaints. We remain committed to putting patients first.

Rightly, our focus on giving patients a stronger voice, coupled with reviews such as those by Sir Robert Francis QC and Ann Clwyd MP with Professor Tricia Hart, have raised people’s awareness of their right to complain. If someone is dissatisfied with the NHS services that they have received, it must be right for them to expect that their complaint will be investigated efficiently and effectively. The health service ombudsman investigates, and makes final adjudications on, complaints that individuals have been treated unfairly or have received poor service from the NHS in England. She is the second, independent stage of the NHS complaints arrangements, being independent of both government and the NHS, accountable directly to Parliament. An efficient ombudsman service is therefore vital if we are to deliver the effective complaints service to which NHS patients are entitled.

In response to the noble Baroness, Lady Hayter, and the noble Lord, Lord Hunt, who asked about the prospects for having a more unified and integrated ombudsman service, I would add that the Cabinet Office is reviewing the way in which the public services ombudsmen currently operate. We take complaints about the public services, including the NHS, very seriously. We consider that there is a continuing need to improve the handling of these complaints—in particular, to use information obtained from them to improve service delivery. As part of that work, we have been looking at reform of the public services ombudsmen. Noble Lords will be aware that Robert Gordon, a former director-general in the Scottish Government, has been asked to undertake this review, and the Cabinet Office is hoping to go out to consultation on reform before the end of this Parliament.

Dame Julie Mellor, the Parliamentary and Health Service Ombudsman, has transformed the way her office works. The noble Baroness, Lady Finlay, was absolutely right about that. The circumstances have been challenging, but she has done a good job. There is more openness and transparency in how the office works. The number of complaints investigated by her office has recently greatly increased, and we expect a further rise to be recorded in her 2014-15 annual report. Complaints are generally efficiently reviewed and assessed in a timely manner.

However, certain cases suggest that the ombudsman might benefit from legislative reinforcement in the difficult task of working towards further improvement. The noble Baroness has made reference to the Sam Morrish case. I shall not repeat what she has said; suffice it to say that the family’s experience of the NHS fell well below, and tragically below, an acceptable standard and, unfortunately, so, too, did their experience of taking their complaint to the health service ombudsman. Dame Julie rightly apologised to Mr and Mrs Morrish. In answer to the noble Lord, Lord Hunt, I think lessons have been learnt from that case. At the very least, I hope that the health service ombudsman would consider carefully and learn from the Morecambe Bay report where appropriate. It is not possible for me to say more than that; as noble Lords are aware, the ombudsman is independent of government, and it would not be proper for me to do so.

It is still true to say that any unnecessary delay in investigating cases adds to the distress of those involved. NHS complaints often raise personal or sensitive issues. It is important to respond to the person making the complaint as quickly as possible. Reducing unnecessary delay in completing the investigation of a case will reduce the distress of those involved. However, where there are considerable delays of more than 12 months, even if seemingly unavoidable, it is surely right for individual complainants to be told why an investigation has taken so long to conclude. We also think it right for Parliament to be informed, in the ombudsman’s annual report, of how many complainants are kept waiting longer than 12 months for their case to be concluded and, equally importantly, the action being taken to reduce that number.

In summary, this Bill will improve the accountability of the Health Service Commissioner for England to people making a complaint, and to Parliament. The Government fully support these aims, and we fully support the Bill.

My Lords, I thank all noble Lords who have taken part in this short but important debate. I appreciate the support of all noble Lords who have spoken.

This is a simple Bill that seeks to reduce unnecessary delay in investigating cases and, in so doing, reduce the distress of those making a complaint to the health service ombudsman. I have corresponded with Mr Morrish and am aware that he gains comfort from knowing that this issue is being addressed.

I thank everyone involved with the Bill, particularly David Davis MP, who originally brought it forward.

Bill read a second time and committed to a Committee of the Whole House.