I beg to move, That the clause be read a Second time.

With this it will be convenient to discuss the following: Government new clause 5—Requirements to be complied with.

Government new clause 6—Transitional provision.

New clause 7—Time limit on making of complaints about providers who have retired or resigned—

' . The limitation for a complaint under section 3(1) of the Health Service Commissioners Act 1993 (general remit of Commissioners) shall be the same as that which applies to an action for clinical negligence at common law, notwithstanding that the person the subject of the complaint has resigned or retired from the National Health Service.'.

Madam Speaker, I hope that you agree that it is relevant at this stage of the Bill's proceedings if I briefly outline the provenance of the new clause. Interested parties who look at the Order Paper and the amendments might be momentarily puzzled about why such a new clause should have appeared out of the blue, particularly as the Bill has received such support at all its stages hitherto.

In introducing the Bill on Second Reading, my right hon. Friend the Member for Wealden (Sir G. Johnson Smith) said:

The purpose of the Bill is to close a loophole in the Health Service Commissioners Act 1993, which allows general practitioners and others involved in health matters to retire to avoid investigation by the health service ombudsman. For example, GPs who are worried about being investigated by the ombudsman can simply retire from the national health service to avoid answering for their actions.—[Official Report, 3 March 2000; Vol. 345, c. 664.]

That was a very elegant statement by my right hon. Friend of the aims of the Bill. That elegance, and the persuasiveness of the argument that followed—which I need not repeat or rehearse at this stage—easily persuaded the House on Second Reading that the Bill should receive widespread support.

The fly that appeared in the ointment, however, came later in the debate. The Under-Secretary of State for Health, the hon. Member for Birmingham, Edgbaston (Ms Stuart), said:

May I share some of the Government's concerns? A practitioner may still get off the hook if the time limit is brief, but we have to reach a compromise between what is fair and what is workable for all parties concerned.

The Minister, very fairly, said to the House, even at that stage, that although she was supporting my right hon. Friend's Bill, she had some reservations about it. She went on to say—presciently, if I may say so:

Perhaps the worst aspect of the current situation is that there have been cases of the commissioner beginning an investigation only to have to discontinue it because the practitioner resigns or retires. For example, in a case involving one GP, the statement of complaint was issued, but the commissioner was informed that the GP was due to retire in two months.—[Official Report, 3 March 2000; Vol. 345, c. 698–699.]

There again, we have the statement of the problem as it emerged on Second Reading.

The issue was taken up in Committee. When Standing Committee C convened on Wednesday 29 March, my right hon. Friend reminded the Committee of what the Minister had said. He quoted the hon. Lady's remarks made on Second Reading on 3 March 2000 at column 697:

One of the key elements of any complaints process must be that it is fair to all parties. The proposals in the Bill would potentially leave the practitioners and providers involved susceptible to investigation by the commissioner indefinitely.—[Official Report, Standing Committee C, 29 March 2000; c. 3.]

That is the question before us on Report. Having had that warning of the problem, my right hon. Friend then picked up from the Minister the other aspect of the difficulty, which is where we are. He said that the Minister suggested on Second Reading that there should be a limitation on the time taken to deal with those problems. So it was already acknowledged, by the Bill's Committee stage, that there was a problem about time limits.

Later in the Committee's proceedings, the Minister said:

I made it clear on Second Reading that we should be fair to all parties, but giving the Health Service Commissioner indefinite powers to investigate ex-practitioners did not seem to be fair. I gave notice that the Government would table an amendment to the Bill to introduce a time limit on how long after, for example, a GP had retired, the commissioner should be able to investigate a complaint about him or her.

Then she said, in her fair and even-handed way:

Developing a time limit proposal is not as straightforward as it might seem at first.

I can echo the hon. Lady's sentiments. Indeed, that comment is an understatement. It may be a tribute to the tightness of the Bill's drafting, but I found—and I gather that this was a general experience—that to draft an amendment that would reflect and deal with the problem of time limits within the context of my right hon. Friend's Bill proved remarkably difficult. However, I tabled a new clause, and it has been selected for debate—something of a triumph in the circumstances. By doing so, I have managed to put a wedge in the door. I shall shortly refer to the Government's new clauses, which provide a different slant and a different solution to the problem.

The Minister's remarks in Committee helped set the stage for this proposal. What she and my right hon. Friend said has demonstrated that although we were prepared to accept the thrust and principle of the Bill, the fact that the difficulty emerged and was discussed sensibly in Committee and that we are returning to it on Report reflects well not only on my right hon. Friend but on the way in which the process has unwound. The Minister's words go some way towards explaining the matter. She continued:

As I said on Second Reading, we must agree on its length—

that is, the time limit—

and we have discussed that point with the commissioner. Whatever period we decide on, we must work through the question of when we start the clock. How will we deal with someone who has been out of NHS practice for more than the agreed period, but who decides to rejoin? How will we make sure that we catch all types of independent provider, from the sole proprietor of a small nursing home to the big company with a string of private hospitals?—[Official Report, Standing Committee C, 29 March 2000; c. 5–6.]

The Minister posed that question in Committee. In these proceedings, we must judge how far my modest little provision or the Minister's mega new clause 5 can deal satisfactorily with the problems. That aspect of the background is relatively clear.

My new clause and the Minister's take somewhat different approaches to the matter. Mine was deliberately simple and straightforward. The key question is whether it will deal with the problem as comprehensively as it should. It states:

Complaints may be made under section 3(1) of the Health Service Commissioners Act 1993…for a period not exceeding three years following the retirement or resignation from the National Health Service of the person who is the subject of the complaint.

I shall come to the Minister's new clause 5 in a moment—strictly speaking, it is the Secretary of State's new clause, but I shall attribute it to the Minister for the purposes of the debate; she was probably its author. It is a genuine coincidence that both new clauses would set a time limit of three years.

The right hon. Gentleman may not have had the chance to read my new clause 7. That too provides for a limit of three years, but with quite a few exceptions.

I was looking forward with great anticipation to hearing the hon. Gentleman explain his new clause. I am not a lawyer and it appeared slightly opaque to me—I hope he will take that comment in the spirit in which I offer it. It will be interesting to compare the new clauses.

However, as I had not—and could not have—read the Minister's new clause before I tabled mine, I searched for the reason why we had both come up with the same period. The only explanation that I could think of was that, as I had spent almost nine years in government, I had perhaps absorbed, through a form of osmosis, the thought processes that occur in a Department—the excellent briefing and support that Ministers receive from their officials and the options that are examined. Even after so long out of government, perhaps enough of that is left in me that I homed in on the same period that the Minister has much more scientifically come up with. It is a warming coincidence that we find ourselves so readily in agreement on this occasion. That comforts me, because knowing as I do the exhaustive process by which the Minister will have reached that conclusion, it bodes well for the debate and for the conclusion at which, I am sure, we shall readily arrive.

Needless to say, although we have arrived at the same period, there are differences in the way in which we did so. My approach was deliberately simple. The Minister's new clause refers to the original measure—the Health Service Commissioners Act 1993. Significantly, section 9(4) states:

The Commissioner shall not entertain the complaint if it is made more than a year after the day on which the person aggrieved first had notice of the matters alleged in the complaint, unless he considers it reasonable to do so.

In that sense, a time limit had already been built into those provisions. We are now considering a different time limit in order to give different protection. I am not aware that the original limit has been disputed. It must surely be reasonable that, if someone has a genuine complaint, it should be brought to the attention of the commissioner within a reasonable time limit—one year, in that case.

We are discussing whether practitioners should be left vulnerable to complaints for an indefinite period. There is a balance of argument. My right hon. Friend the Member for Wealden may originally have had it in mind that to set any time limit might, in some circumstances, act against the interests of the person wanting to make a complaint. That is a reasonable starting point. That argument may well be rehearsed during the debate. We must not rush in without giving it full consideration.

However, the discussions on Second Reading and in Committee identified another problem—the other side of the coin. We must achieve some balance and even-handedness between the reasonable rights of the person making the complaint and the person complained against. That is where the judgment as to time inevitably comes in. What is a reasonable amount of time in which to allow a complaint to be laid, while not leaving people vulnerable to complaints for the rest of their lives? That could be the case if we do not amend the Bill.

Will my right hon. Friend clarify a point about his new clause and his understanding of the new clauses grouped with it? Is the three-year time limit—or whatever limit is proposed—to be understood as starting from the moment when a complaint is made to the health service commissioner or from the moment at which a formal complaint is made in the overall national health service complaints system? If a complaint had been laid within the three-year time limit at the lower entry point, would it be possible, after that limit, to make reference to the health service commissioner, if the earlier stages had taken a long time?

That is a fair question. At a glance, I am not sure whether it is answered by my new clause, nor—at an even briefer glance—by the Minister's new clause, although that is for her to say.

However, my hon. Friend makes an important point. We face a dilemma: should we be tempted to get bogged down in details so as to cover all eventualities, or do we want to keep matters simple? I readily concede that simplicity has many virtues, but one of the problems with a simple—although not simplistic—approach is that it may not deal with all eventualities. In new clause 4, I was trying to deal with the problem that I thought had been identified on Second Reading by the Minister and in Committee. I wanted to try to limit the period during which people were vulnerable to a complaint, following either their natural retirement or their deliberate resignation from the health service or other employment. That was my focus.

I have listened with interest to the debate as to whether there should be a three-year period. If, within the period, the commissioner decided that there was a prima facie case to answer, one would think that the process would automatically allow for the continuation of an investigation of the complaints. I need to be satisfied that the right hon. Gentleman's new clause would provide for that.

My new clause states:

Complaints may be made…for a period not exceeding three years following retirement or resignation.

I would interpret that as meaning, literally, that the complaint should be made, laid or initiated within that period. Within that are subsumed several questions, such as how long it might be reasonable for the commissioner to deal with a complaint before an expiry of the process. I do not know whether we need to get involved in that issue, but we should properly debate whether the elegance—as I would claim—of my new clause or the Minister's even more comprehensive new clause deal sufficiently with that point. We must tease out the answer.

I confess that I am already starting to doubt whether my elegant new clause will meet all the requirements. We shall have to consider that in the debate. Given what my hon. Friend the Member for Runnymede and Weybridge (Mr. Hammond) and the hon. Member for Ellesmere Port and Neston (Mr. Miller) have just said, we may be able to identify circumstances that will not be adequately covered by the simple approach and may, therefore, require a more complicated one. I shall wait until I hear the Minister and more of the debate before I make up my mind. I am known to be legendary for my flexibility and reasonableness, so I do not want to stick to my new clause for any longer than is credible in the light of our debate. I want to ensure that the Bill emerges from that process in the most viable and effective form possible. That is why we are here and that is our shared objective.

The questions that have already been raised illustrate the surprising complexity of the issues. It may be that, on Second Reading and in Committee, we thought that it would be a relatively straightforward process and, when I framed my new clause, I thought that too. We thought that we were dealing with one dimension of the problem—the protection of the person complained against in the light of his or her resignation or natural retirement from the service.

It has already become apparent that other possibilities will inevitably arise. For example, will there be subsidiary time limits within the time limit stipulated? Will they start from the point at which a complaint is made, run through the initial stages of the complaint being dealt with by the commissioner and then come into conflict with the matter of retirement or resignation from the service? Those issues must be considered and that is why we shall have to examine closely and positively the Minister's new clause. Unsurprisingly, it is an attempt to deal with such dimensions and it emerged from a process with which many of us are familiar. A debate took place, the Minister acknowledged a difficulty, signalled that point fairly and gave an undertaking in Committee that it would be dealt with. The problem then went to the Department where the Minister set a challenge to her officials. They resolved it to their satisfaction and the parliamentary draftsman has provided his or her solution.

I apologise for not being able to be present for the beginning of my right hon. Friend's speech, so I do not know whether he has covered this point. However, there is at least one respect in which his new clause is significantly superior to that tabled by the Minister. His does not exclude those who have been struck off in the NHS whereas the Minister's does.

I hope that that is so, and I am grateful for my hon. Friend's support. New clause 4 contains the words

following the retirement or resignation from the National Health Service

and I now wonder whether they would cover someone who has been struck off. Retirement has one meaning and resignation another. The implication of my hon. Friend's comment is that someone who has been struck off has not retired or has refused to resign; he is forced to leave. I am now worried. My hon. Friend was generous in suggesting that my new clause covered such an eventuality, but I now doubt whether it does. I leave that question hanging for the moment, because the Minister might have to deal with it if we are to receive a satisfactory answer. In a sense, I am glad that my hon. Friend raised that issue.

When the right hon. Gentleman hears the argument in favour of my new clause 7, he will find that it deals with that issue.

The hon. Gentleman hints that he believes that his solution will be more effective than mine. Admiring him as I do, I do not necessarily have much doubt about that. I do not want to delay the House or prolong my little contribution to the debate unnecessarily. However, at this stage, we can be fairly clear what the problem is, because it was elegantly set out. I hope that we shall have answers to it. I am confident that the Minister will answer. Whether the hon. Member for Hendon (Mr. Dismore) can persuade us that his solution is superior to the Minister's remains to be seen.

My new clause deals simply, elegantly and comprehensively with one part of the problem. Subject to what the Minister and my right hon. Friend the Member for Wealden say, we may not need to make a choice between the new clauses. A battery of new clauses may prove to be the best answer to the problem. Not least among those new clauses may be that of the hon. Member for Hendon, shrouded as it is in a legalese that is designed—whether by parliamentary draftsmen or lawyers—to force us to pay for or, as in this case, to listen at length to the legal advice necessary to untangle it. There is nothing wrong with that, especially as such advice is free in this place.

We believe that we understand the problem, but the solution may not be as simple as we thought. It should be dealt with and I hope that my right hon. Friend the Member for Wealden will guide us as to whether he thinks that the Bill requires what is suggested in the new clauses. I gained the impression from what he said in Committee that he believed that the problem must be dealt with, and our job is to decide which of the solutions on offer is the best. I submit mine and I look forward to hearing from the proponents of the others.

It is a great pleasure to follow the right hon. Member for Bromley and Chislehurst (Mr. Forth). I listened to his explanation of how complicated the issue is. I agree that it is much more complicated than people might have originally thought when we discussed it on Second Reading.

The starting point for considering the time limit is to return to first principles and ask what the purpose of the ombudsman is when he deals with complaints in the national health service. Two issues need to be considered. The first is that the ombudsman is part of an on-going process, as the hon. Member for Runnymede and Weybridge (Mr. Hammond) suggested when he asked about the time frame in which a complaint in the NHS system develops. Secondly and more important, we must find an alternative remedy to legal proceedings.

There is probably cross-party consensus in trying to minimise the number of legal actions that the NHS has to defend. The figures for the cost of such actions are astronomical—about £billion a year, which is more or less equivalent to a penny on income tax. Therefore, we should try to minimise the need for legal action by providing alternative remedies. One of the most important of them is the power to take a case to the ombudsman to obtain another form of redress.

On Second Reading, I tangentially made the point that the ombudsman's powers need to be strengthened in several different ways. However, we need to produce a time limit that is not weaker than the one that a complainant would have through the courts. We do not want to cut off one avenue and force people to go to law because the ombudsman cannot entertain their complaint as a result of the cut-off imposed by the time limit. That is where my new clause is relevant because it would equate the time limit for a complaint to the ombudsman with that which would apply in the case of someone wishing to sue the NHS. I shall develop that point at greater length shortly.

I wish to make a tangential point on which I would be grateful for my hon. Friend's advice. Does he accept that the time limit is not the only reason why people prefer to go to court rather than to the ombudsman? The other factor is the ombudsman's limited power. If we strengthened that power, more people would take their complaints to him in the first place.

I am grateful to my hon. Friend, with whom I agree. That was an issue that I had hoped to address on Second Reading and in amendments that I tabled for today's debate but which, unfortunately, were not selected. I may therefore address it in our debate on later amendments. She makes a cogent and important point: the stronger the powers of the ombudsman, the less likely people are to regard going to court as their only remedy.

We must therefore try to ensure that the time limit in the Bill does not provide a less effective remedy than going to court. No one disputes that we need a time limit. However, we must balance the needs of the complainant and the health service provider in determining where to set that limit. If we do not get that right, people will simply start to sue.

Before I go into the detail of my new clause, I point out that the health service commissioner thinks that a three-year time limit would be appropriate because it would tie in neatly with existing limitations on civil litigation. Of course, the Government new clause and that tabled by the right hon. Member for Bromley and Chislehurst would not do that, as they would not provide for the fine tuning that exists in civil litigation. Indeed, they would provide a somewhat blunter instrument, as they simply set the limit at three years—take it or leave it. My proposal is more sophisticated and would allow for a series of eventualities.

There is a key distinction between my new clause and those of the Government and the right hon. Gentleman, which apply the time limit after the retirement or resignation of the doctor concerned. Effectively, the doctor could face proceedings up to three years after he had retired or resigned. My new clause involves a more general time limit, which would apply whether or not the doctor had retired. It uses the word "notwithstanding". By contrast, the right hon. Gentleman's new clause states:

following the retirement or resignation,

and the Government new clause uses the phrase

after the last day on which

someone was a family health service provider or independent provider.

My new clause would therefore address the position of someone being struck off, which was raised by the hon. Member for Westmorland and Lonsdale (Mr. Collins). My new clause is all-embracing and would catch all doctors in all circumstances, notwithstanding their resignation or retirement. The Bill excludes some people, but my new clause would bring them into the fray.

The effect of the hon. Gentleman's new clause would be considerably to tighten the scope for an individual to bring a complaint to the ombudsman in all circumstances. Is that his intention?

My intention is to try to equate the powers of the ombudsman with those that apply to the courts. In practice, my new clause would not have the effect suggested by the hon. Gentleman because the ombudsman already operates an unofficial one-year limit on complaints. My new clause would give complainants and doctors subject to complaint greater certainty about where they stand. It is a question of striking the right balance between the two parties.

The logical conclusion to be drawn from the hon. Gentleman's comment is that until his retirement and, indeed three years after that, a GP could be open to complaint about an event in the early years of his practice as a young trainee GP. If he was in his early 20s at the time of the event, he could be open to complaint for 40 or 50 years. That cannot be right. However one regards the situation, a limit must be applied. I believe that three years is the correct period, with appropriate exceptions being built into the system.

Surely the logic of what the hon. Gentleman said about the ombudsman operating an unofficial one-year limit on complaints is that we are wasting our time discussing the matter?

The Bill and the Health Service Commissioners Act 1993 do not specify a time limit. The ombudsman operates an unofficial one-year time limit as custom and practice, but a future ombudsman may decide to operate a completely different system, and the period may be shorter or longer. It would therefore be appropriate to incorporate a time limit in the Bill. My proposal would achieve that objective and cover all doctors. It would provide protection and strike the right balance for those doctors who have ceased to practice, whether as a result of retirement, resignation or another reason, such as being struck off.

The meat of my new clause is that the time limit on complaints should be the same as that applying to an action for clinical negligence in common law. The normal time limit is three years, but there is a series of exceptions to that, which should be incorporated into how the ombudsman will operate. The first exception affects children.

At the moment, a complaint involving a child can be brought only within three years of an incident. However, in common law, the three-year time limit applies from when the child obtains the age of majority. A child may have a grievance that his or her parents decide not to take up with the ombudsman. Nevertheless, the child may feel strongly about that grievance and, when he or she reaches the age of 18—notwithstanding the fact that it may be more than three years since the incident—is empowered to bring a complaint to the ombudsman. In common law, that child would be entitled to bring an action for damages for clinical negligence. It is important to ensure that a complaint to the ombudsman does not disadvantage children, given that they have rights in common law to bring an action for clinical negligence.

Secondly, the three-year time limit applies either from the date on which the cause of action, meaning the matter of complaint, accrued in common law or—this is an important exception—to a later date on which the injured person gained knowledge of his or her injury. In many medical negligence cases, people do not immediately realise that they are victims of malpractice. They do not realise what has gone wrong, so they go to another doctor, and it takes for ever to find the cause of the problem. Eventually, some years later, they may find that a surgeon has left a piece of equipment inside them or taken the wrong bit out. It sometimes takes a long time to determine such issues.

In common law, section 14 of the Limitation Act 1980 sets out the factors that apply to the date of knowledge. It deals with factors relevant to the date of knowledge of the complainant, or the claimant as he is called now, following the change of terminology in last year's civil justice reforms—although the Act predates those changes and refers to the plaintiff. Those factors include

that the injury in question was significant; and that the injury was attributable in whole or in part to the act or omission which is alleged to constitute…breach of duty;

as well as

the identity of the defendant.

Often it is difficult to determine identity. For example, someone bringing a complaint against a hospital may have been treated by a nameless person in the accident and emergency department. Indeed, the last thing that they will ask when receiving treatment is the name of the doctor or nurse. The Act says that a person's knowledge

includes knowledge which he might reasonably have been expected to acquire…from facts observable or ascertainable by him; or…with the help of…appropriate expert advice which it is reasonable for him to seek.

Those exceptions would greatly improve the proposals of the Government and the right hon. Member for Bromley and Chislehurst. The framework should include the standard three-year time limit, which we all agree is appropriate, but should also provide exceptions for those people who, for one reason or another, do not know they have been injured—

I must interrupt the hon. Gentleman because he said that we all agree that the standard three-year time limit is appropriate, but he is proposing a very different three-year time limit from that proposed by the Government and my right hon. Friend the Member for Bromley and Chislehurst. I am not at all sure that we have established that there is a consensus in the House that a three-year time limit from the event is appropriate.

I am grateful to the hon. Gentleman for clarifying the position of the Opposition. Perhaps I should have said that we all agree that a three-year time limit is appropriate, but that we may disagree on where it should kick in.

The important point is that we need a series of exceptions to the rule. There will always be exceptions, and if we do not provide a degree of common sense about when people know or do not know that they have been injured, we run the risk of creating injustice and forcing people to seek alternative remedy to the NHS ombudsman in the courts.

The catch-all provision in section 33 of the Limitation Act provides a general discretion, notwithstanding all my points about section 14 on the definition of the date of knowledge. Such a discretion is important. It empowers the courts in civil litigation and, should my amendment be accepted, the ombudsman in the case of a complaint, to exercise a degree of common sense.

If it is equitable to allow a case to proceed, the courts can permit it to do so depending on the degree of prejudice suffered by either side. The court may consider: whether there are good reasons for delay of the complaint; the evidence available and whether it continues to be cogent or has become weaker through the passage of time; the conduct of the parties and the extent to which, for example, requests for information from the patient to the doctor were properly and promptly answered; the extent to which the claimant acted promptly once he knew all the relevant facts; the steps that the claimant had taken to obtain the necessary medical or other expert advice; and the nature of the advice received. All those factors relate to the general equity of deciding whether a complaint should be permitted.

My new clause would strike a fair balance between the rights of claimants and doctors. Doctors would know that, in normal circumstances, there would be a three-year time limit for a complaint, irrespective of whether they stay in the profession or leave for whatever reason. On the other hand, claimants would know that they had to get their skates on to ensure that the complaint was brought within three years. The new clause would also provide a general series of commonsense exceptions to the rule, which would apply to cases in which, for example, the claimant simply does not know, for whatever reason, that they have been injured, and ultimately a general discretion under which it would be fair to extend the time limit.

The hon. Gentleman still has not explained whether the three-year limit should apply to the initiation of a complaint at the first tier of the NHS complaints procedure or refer specifically to the point at which a complaint was made to the commissioner. If it is the latter, does he have any information about the average length of time that it takes to exhaust the first and second tiers of the NHS procedure?

The point is answered in my new clause, as it is in those tabled by the right hon. Member for Bromley and Chislehurst and by the Government—although I have not cross-referred Government new clause 7. Like my new clause, the right hon. Gentleman's refers to the time limit in which a complaint must be made to the commissioner under section 3(1) of the Health Service Commissioners Act 1993: three years. That would not therefore include any period previously dealt with while exhausting earlier stages of the complaints procedure.

I get the impression from the commissioner's most recent report that the procedure can sometimes take a year or two. The hon. Member for Runnymede and Weybridge may find it instructive to read the commissioner's evidence to the Health Committee when it was considering the issue of complaints. A year or two is far too long. We must find ways of speeding up the complaints process greatly. Otherwise, to return to my bull point, if I may put it that way, people who have no confidence in the complaints procedure and think that it will take too long and not provide an appropriate remedy, will inevitably find themselves running off to the courts in search of one.

10.15 am

I turn to the transitional arrangements in Government new clause 6, about which I have great concerns. It could create massive injustice between different complainants. Two people could have complaints arising from a doctor's conduct one day—let us say today. The doctor has had a bad day and somehow upset two of his patients. One patient is very cross and makes a complaint on getting home, which is proceeded with. On Monday, the GP suddenly decides that he has had enough and will retire. Under the transitional arrangements, the complaint made by the patient who acts promptly would be dismissed.

The second patient allows the complaint to brew a little, is clued up from watching our debate on television and realises, "Aha; if I wait until the Bill becomes law, I can bring a complaint that will be dealt with." So, two people with the same complaint against the same doctor on the same day would be treated very differently under the proposed provisions. That returns to the point that the transitional arrangements deal not with the date of the matter complained of, but with the date of the complaint. It would be far better if new clause 6 addressed the former. That would produce the equity that is lacking in the Government's present proposals.

I shall give an illustration of the problem arising in practice—in relation not to the NHS but to an amendment to the criminal injuries compensation scheme introduced by the right hon. Member for Penrith and The Border (Mr. Maclean) under the previous Government. I am afraid that he is not in his place; he always seems to miss me raising this issue, from which many interesting lessons for the way in which legislation is drafted can be drawn. I have previously dealt at length with the difference between "may" and "shall" in the case to which I shall refer.

In 1994, the then Government introduced massive cuts in the criminal injuries compensation scheme, but to sweeten the pill, people whose infant child had been killed were to be for the first time entitled to bring a claim for compensation and to a lump-sum payment. In my role as a lawyer, I challenged the Government in the courts and the cuts were thrown out. The Government then had to return to the old scheme until the matter was put right through the introduction of a much better scheme in 1995.

Some people had made their claims under the amended provisions, which enabled them to claim compensation. Some claims were allowed and money collected. Some claims were in progress, but effectively dismissed by the result of the court action—in a similar context to the proposed transitional arrangements. People were not allowed to make another claim because they would be re-opening one that had been dismissed.

There are 200 families in such circumstances who, to this day, bear a great grudge and grievance against the previous Conservative Government. They feel that they have been unfairly treated owing to the way in which the transitional arrangements operated. The proposed transitional provisions in new clause 6 are very similar because they relate to the date of the claim, not to the date of the incident. Perhaps the Government should think again about new clause 6. Providing for the date on which the incident complained of took place would produce far greater certainty for both complainants and doctors, and obviate the risk of injustice.

My new clause would provide the answers to the issue of the time limit. It would provide not just a fixed time limit but the flexibility that we need in its application. I hope that the Government will also look closely at the transitional provisions, perhaps withdrawing their proposals and returning with ones based on the date of the incident complained of. That would provide greater certainty and fairness between one complainant and another.

I listened with great interest to my hon. and erudite Friend the Member for Hendon (Mr. Dismore). As usual, a lawyer's argument is persuasive. The snag is that I have some suspicion about the role of lawyers in this area of litigation.

I am sure that many of us have dealt with constituency cases in which we feel that lawyers representing the regional health authority or medical trust involved have acted unreasonably by repeatedly delaying proceedings. In some regions there is clearly a practice of stonewalling complaints, so that the patient dies, gives up or is bankrupted and cannot pursue the matter further. I find such practices unacceptable, as are those of lawyers representing complainants who egg the complainant on because they may get a few bob out of the case. There is a worrying factor in that relationship.

Of the people who come to Members of Parliament with complaints about the health service, some are in it for what they can get—the number of noughts on the cheque—but most want to know what happened and what went wrong, and they want someone to apologise to them for the injustice that occurred. Because the medical procedures available are so highly technical, everyone who goes into hospital could find something that has gone wrong.

Some hon. Members may remember the time when I was hobbling round this place on crutches during the previous Parliament, having had treatment in the now demolished Westminster hospital—not demolished because of me, I would add. The hospital ran out of Heparin, which was necessary for the treatment that I was receiving. Could I have made a complaint? Could I have made a complaint that there were no teaspoons on the ward, because of cuts under the previous Administration? I am sure I could have complained about something.

Some lawyers would have pressed a client to make a legal complaint about such matters, but the majority of people do not want that. They simply want an explanation of what happened and why things went wrong, and they perceive justice as getting that explanation. I am sure that the right hon. Member for Wealden (Sir G. Johnson Smith) accepts that.

I am grateful to my hon. Friend. I listened with interest to what he said, and I agree with his last point. Can he advise me what the correct course of action is in such circumstances? No lawyer who knew what they were doing would advise anyone to sue in such a case. The only course of action available is through the clinical negligence procedure.

I hear what my hon. Friend says, but it is difficult to specify the boundary without getting drawn into cases that are current in my constituency, which may come before the commissioner in due course, and one of which may well come before the court. Going to court is justified in cases where there is clear evidence of negligence and a long-term built-in financial disadvantage, but such sad cases are few. Because of the highly technical procedures in hospitals, there are bound to be problems, and people want explanations about what went wrong.

How can we deal with the matter? We can set no time limit, or a fixed time limit, or a fixed time limit with exceptions built in, or some such hybrid process. The right hon. Member for Bromley and Chislehurst (Mr. Forth), who opened the debate, did the House a favour by stimulating the discussion. As I said in my intervention, we should ensure at least that within the time frame set, a prima facie case is established by the commissioner, although he may undertake an investigation and make a ruling substantially after the three-year period—it is possible that a delay may be required for medical reasons.

The other possibility is that any case that appeared on the commissioner's desk up to the three-year deadline could be considered. I am worried about that simplistic approach. Parallels could be drawn with other forms of complaint that are open to the public, such as industrial tribunal procedures. Most tribunal chairmen are wary of complaints that appear within a day of the three-month limit for making them. There might be exceptionally good reasons, but such a late complaint seems like an attempt to get something out of the dismissal or whatever. By and large, chairmen are reluctant to accept that that is a proper way of proceeding. The complaint should be lodged as soon as someone knows that he has grounds for a complaint.

I hope that when my hon. Friend the Minister responds to the debate and explains her new clauses, she will give us her views on how the commissioner should handle cases within the period set. Should the commissioner accept any case brought to his attention during the three-year period proposed by the right hon. Member for Bromley and Chislehurst? Should the commissioner have the power to make exceptions beyond the time limit? Are there medical circumstances about which my hon. Friend, as the Minister, knows more than I, that would justify exceptions being made? Should the commissioner deal only with cases in which he has established prima facie evidence that a complaint is justified?

That must be clarified before we determine which route we take. The approach outlined by my hon. Friend the Member for Hendon would allow the flexibility that I want, but I am slightly worried that it might tempt the decisions out of the ombudsman's arena and into the courts. I should be happy to hear my hon. Friend's comments, if he considers it appropriate to intervene.

I am grateful to my hon. Friend. That would arise only if someone undertook a judicial review case against the ombudsman for failing to investigate a complaint. In practice, that would never happen. The court would have to be satisfied that the ombudsman had acted unreasonably. Bearing in mind how the Limitation Act 1980 has been construed in the past, that would be unlikely. Going to court for that purpose would be tantamount to throwing out the baby with the bath water. It would be simpler to litigate the original issue.

I am grateful to my hon. Friend. I assume that the same logic would apply, whichever clause we adopted. My hon. Friend nods: I am grateful for the free legal advice that I am getting. [Interruption.] It is not free from the Opposition, I hear.

My hon. Friend raised an interesting point about new clause 6 and the transitional arrangements. I know that he has dealt with extremely difficult cases in his previous life. He makes a fair point, which the Minister should consider. She should explain how we can avoid the pitfall that my hon. Friend described in the context of legislation on other matters. Perhaps the Government new clauses provide the answer because they would allow the ombudsman to determine whether to deal with complaints that had not avoided the pitfall. To achieve that, we must be sure that the amendments and existing laws that govern the commissioner's conduct empower him, without fear of legal challenge, to handle cases in the time frame that has been described.

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I appreciate that some cases, which led the right hon. Member for Wealden to introduce the Bill, are in a vacuum. However, I hope that we will receive an explanation of the point that my hon. Friend the Member for Hendon raised because of his detailed experience of other matters.

My hon. Friend also raised a difficult point for all of us who are parents: the rights of our children when they are children and those they gain when they reach the age of 18. The problem is tortuous and even more complicated in cases of complaint against the health service. The evidence necessary to sustain a complaint disappears with time. The scientific evidence showing that a complaint should have been lodged on someone's behalf 18 years ago may become stronger as our knowledge of medicine increases, but the key witnesses—doctors, nurses, visiting relatives—get older and frailer, or move and become untraceable. The medical staff retire or leave the profession. That poses problems. Some logical limit should therefore be placed on rights. Responsibility should be vested in the parents; we should not simply leave the door open.

The Government are anxious to ensure that money is spent wisely in the health service and directed towards patient care rather than long, bureaucratic and legalistic procedures. If cases such as those that my hon. Friend the Member for Hendon described were open to the commissioner, they could place an intolerable burden on the sort of investigation the commissioner might undertake. I therefore counsel my hon. Friend to reconsider, not on the basis of absolute justice for specific cases, but of practicality. We have to deal with the realities of the circumstances.

In 10 or 20 years' time, we may be able to reconsider if methods of recording information and holding scientific data improve. However, we are considering cases in which the patient will often have changed doctors, and have been treated by different specialists. Historically, records have not been well kept, although some GPs and hospitals are exceptionally good at keeping them.

I shall put a specific case that I know well to my hon. Friend the Member for Hendon. A young person had a series of operations at 14 months because of the failure of a paediatrician to undertake normal checks in the proper manner at birth. That may possibly be a justifiable case in my hon. Friend's legal opinion. If the parents decide not to litigate when the child is very small, should the child have the right to pursue the case when it has grown up? That is a difficult judgment to make, especially when the knowledge about the effect of the condition has also changed with time.

When the child reaches the age of 18, he or she has the right to go to court because the limitation period for common law starts from the age of 18. New clause 7 would provide an alternative remedy and enable the parents or child to go to the ombudsman instead of the courts. If my hon. Friend's remarks are taken to their logical conclusion, the ombudsman option would be removed, and litigation would be the only course of action available.

I am grateful for that comment. While I understand and sympathise with my hon. Friend, I am speaking of a genuine case. I am worried that the ombudsman would be confronted with an intolerable burden because the scientific knowledge of the consequences of the doctor's action has changed dramatically. That must be true of several cases.

Some complaints are high profile—for example, those of lack of advice on inoculation. In the 1950s, some young people developed polio. However, at the time, medical knowledge was different. Nowadays, those who are not offered the sugar lump containing the magic medicine are few and far between, and if a few do not receive it, it is usually as the result of a deliberate act by the parents. It would be intolerable to involve the ombudsman in such a difficult philosophical argument. If such cases were justified, they would be exceptional and should be subject to litigation.

I am not trying to remove a human right from a child. My hon. Friend the Member for Hendon might say that I am wrong in view of recent European legislation. However, I am trying to be practical in considering the role of the ombudsman. We all want resources to be directed to the management of patient care; we want only minimal use of the procedures for the ombudsman and for litigation to deal with the exceptional cases about which we all hear from our constituents from time to time.

In principle, I am in favour of a time limit. It struck me as amusing that my hon. Friend the Minister and the right hon. Member for Bromley and Chislehurst plucked a similar time limit out of thin air. I shall investigate that. The right hon. Gentleman has either got on to the inside track in the health service, or, as he said earlier, the process of osmosis continues and the logic of the case that officials presented to my hon. Friend is the same as when the right hon. Gentleman was a Minister. I congratulate the officials on persuading my hon. Friend the Minister to adopt the proposal.

Such a time limit should be set, but I ask whether there should be exceptions to it. I hope that my hon. Friend the Minister will deal with the concerns that my hon. Friend the Member for Hendon, the right hon. Member for Bromley and Chislehurst and I have expressed, because we are all on the same side. We want to ensure that the loopholes are closed satisfactorily, that complaints can be made and dealt in a non-legal manner where appropriate and that the rights of the individuals are protected for as long as necessary—in the circumstances described by my hon. Friend, for example.

I have a couple of brief points to make. My hon. Friend the Member for Runnymede and Weybridge (Mr. Hammond) and the hon. Member for Ellesmere Port and Neston (Mr. Miller) have made some important remarks about new clause 7, which was tabled by the hon. Member for Hendon (Mr. Dismore). As I listened to the hon. Gentleman's speech, however, I found myself agreeing with him, which I have not done for three years: he made some good points.

Although the hon. Member for Ellesmere Port and Neston referred to a constituency case that led him to one conclusion—it is always right to bear in mind that hard cases can make bad law—I was reminded of a constituency case that leads me to believe that the points made by the hon. Member for Hendon need to be taken seriously, even if new clause 7 may not be perfect.

My constituency case is directly relevant to determining whether the time limit should constitute an absolute three-year cut-off after a practitioner has left service or whether, as the hon. Member for Hendon said, the opportunities available in common law should apply, enabling the victim to take action after the information has become available to them.

More than 20 years ago, a chemical called Myodil was injected into my constituent's spine. Many of those who have had such an injection have subsequently suffered from adhesive arachnoiditis—a terrible condition that has rightly been described as involving all the pain of terminal cancer without the prospect of relief. My constituent was not told that that was the cause of her back problem for 20 years; successive medical practitioners said that it was associated with the condition of her spine. By obtaining copies of the medical notes, she found out that, as far back as the early 1970s, doctors had written that she was suffering from adhesive arachnoiditis, but for nearly two decades they did not tell her that that was the cause of the excruciating pain in which she has lived.

As the hon. Member for Hendon said, someone in those circumstances would have the right to take legal action, but my constituent has repeatedly made it clear that she is not interested in seeking large sums of compensation. She realises that nothing can be done to end that appalling pain, which has completed destroyed her life and means that she can walk only with extreme difficulty. The life that she previously led as an active tennis player has been ended. She wants an investigation into what occurred to be undertaken and published, which would be a more proper role for the ombudsman. It would be difficult for an ombudsman's inquiry to go back over such a period, but I would not want us lightly to pass a law that would make that impossible in all circumstances.

The point that the hon. Gentleman highlights gives me great cause for concern. Is he suggesting that a doctor could avoid investigation by withholding from the patient the information that would allow that patient to take a case to the ombudsman?

I am sure that the hon. Lady would agree that this is an exceptional case. There are many medical people in my family, and I know that such events do not happen routinely or in other than a tiny minority of cases. However, I am concerned that the Bill and the new clauses tabled by my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) and by the Minister could allow a medical practitioner, who would be the rare rotten apple in the barrel, to keep information from a patient for long enough—three years, in this case—to make an ombudsman's inquiry impossible.

Such a case is less likely now because there is much wider access to medical notes and we live in an era in which such a cover-up—if that is what occurred—would be much more difficult to undertake. We must consider whether we should enable the ombudsman to investigate such circumstances.

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I give way to the hon. Member for Ellesmere Port and Neston.

There are many such cases, but they have two aspects. The hon. Gentleman must decide whether he wants to obtain justice on the treatment that the person received or on the subsequent withholding of information, which might have been done by entirely different people. It might be a rather old-fashioned view, but some doctors think that it is in the patient's interest not to give them certain information. We sometimes hear about that in cancer care, for example. I am unsure whether the hon. Gentleman is being swayed by the withholding of information or by the care that the patient received in the first place.

The hon. Gentleman makes an important point. A distinction can be made between the two. In the circumstances that I described, the initial problem, on both counts, stemmed from the same practitioner. In the early 1970s, it was standard medical practice for that chemical to be injected into people's spines so that it showed up on X-rays. It would not be legitimate to complain to the ombudsman about that practice because the medical practitioner did nothing unusual. Although scientific evidence of its effects existed abroad, they were not widely known in the United Kingdom. An ombudsman should be able to consider the fact that successive medical practitioners did not accurately inform my constituent of her condition, even if a lot more than three years had passed before the patient had access to the information that proved it.

My hon. Friend seems to suggest that new clause 7 would broaden the opportunities for reference to the ombudsman, but, compared with the new clauses tabled by the Secretary of State, it would be restrictive. It is important to recognise the distinction between complaints against a hospital or a trust, which is an on-going, surviving institution, and those against an independent medical service provider, who may resign from the system and, therefore, escape jeopardy. I should not like my hon. Friend to fall into the trap of thinking that the hon. Member for Hendon wants to broaden the scope for reference to the ombudsman.

I am grateful to my hon. Friend for making those important points. The hon. Member for Hendon wanted to intervene a moment ago, so I give way to him.

For the reasons that I gave, new clause 7 would broaden current custom and practice. However, the new rights to access to records do not apply to those written before the current law came into effect. The hon. Gentleman's constituent might have experienced that problem; she may not have had a legal right to see her records. Access to records can be problematic because doctors can levy fees—

Order. The hon. Member for Westmorland and Lonsdale (Mr. Collins) has raised an important and serious matter regarding his constituent, but the proposal is narrow and refers to a time limit. We should restrict ourselves to that issue.

I respect your ruling, Mr. Deputy Speaker. The issue is whether the time limit in which the ombudsman can inquire into a case should be three years. I have established the point, and I should be grateful if the Minister would say a few words in response to the points that her hon. Friend the Member for Hendon and I have raised. Are there any circumstances in which it would be legitimate for an ombudsman to look into a case that was outside the three-year time limit that she proposes—for example, where it was perfectly clear to everyone that the complainant could not have brought a complaint within the time because they did not have access to information about the subject of the legitimate complaint until afterwards?

I referred to the other point that I want to raise in my intervention on my right hon. Friend the Member for Bromley and Chislehurst. Although the hon. Member for Hendon addressed the issue, I confess that, not being a lawyer, I am not entirely satisfied that it has been properly covered. There is a distinction between the Minister's new clause 5 and my right hon. Friend's new clause 4. New clause 4 refers to

a period not exceeding three years following the retirement or resignation from the National Health Service of the person who is the subject of the complaint.

New clause 5 refers to a period of three years

after the last day on which the person was a family health service provider.

I am willing to be guided by hon. Members with greater legal expertise than me, but it seems to me that there is a distinction, and that it is possible to cease to be a practitioner in the NHS for reasons other than retirement or resignation, both of which strike me as voluntary acts. A person could cease to be a family health provider because he has been struck off, and that is an involuntary act. The definitions are therefore different.

If they are different, that has different implications. From what my right hon. Friend said, it may not have been the intention of the wording of his new clause, but it would have the practical effect of not giving a three-year cut-off point in the case of a practitioner who had been struck off, whereas the Minister's new clause would give a blanket three years whatever the circumstances that led to someone departing the NHS.

As ever, there are arguments on both sides. I am quite attracted by the proposition that a practitioner who has been struck off because they have been found by their peers to have been in fundamental breach of their obligations to the national health service and to their patients should not be entitled to the same time-limited protection available to GPs who have not been found guilty of an offence so serious that it leads to their being struck off. Although there are difficulties, I have some sympathy with the view that there should be a longer period in which complaints can be brought against practitioners who have committed acts so serious that they have been struck off.

Does the hon. Gentleman consider it an appropriate remedy for someone who has been struck off to be investigated by the ombudsman? What confidence would that give to the patient? Would it not be a better remedy to ensure that someone who has been struck off cannot be reinstated on the medical register?

The hon. Lady may be right, but that is beyond the scope of the Bill, although I have some sympathy for her view. I would put it the other way round. The likelihood is that the person who wanted to bring a complaint against a practitioner would be entirely unconnected with the case that had led to that practitioner being struck off, but would be prevented from bringing the complaint because of the three-year time limit. Such a person may come to any one of our constituency surgeries and say, "For heaven's sake. This practitioner was struck off, and you are telling me that I can't bring a complaint to the ombudsman because he got away with it for three years."

It seems that the hon. Gentleman is agreeing with me and not with my hon. Friend the Member for Hendon on the question that I posed to the Minister. In establishing time limits, there must be exceptions so that the ombudsman can use his good sense to allow complaints to be investigated outside the time frame. The question is whether the existing legislation gives the ombudsman powers in such exceptional cases.

The hon. Gentleman has made an exceptionally helpful point, and it prefigures what I was about to say. One thing that we most sensibly do when we legislate is to give discretion to the people who have to implement the legislation that we have passed, whether it be the courts or an ombudsman who has to resolve the special cases, the difficult circumstances, and the unusual cases. The ombudsman should be given discretion within clear guidelines, so that it is clear that it could not be used widely or in any way other than to cover exceptional cases. That would be desirable, and would perhaps enable the ombudsman to investigate cases that come before him well outside the three-year period for understandable reasons. It would also enable us to address the issue of someone who had been struck off.

The hon. Gentleman makes a powerful case, and I hope that the Minister will address that and the other issues that have been raised, either in her remarks on this group or in her later comments. The ombudsman is a well trusted and well respected official, and is likely to be so for as far into the future as we can foresee, whoever he is. There is a case for giving him some discretion to enable him to look into the circumstances of a case and to take the view that, as it is on the borderline, it would be sensible to bend the rules a little to ensure that natural justice, which is what we are all concerned about, is pursued.

I am not convinced of the value of any of the new clauses. The person with whom I most agreed was the hon. Member for Westmorland and Lonsdale (Mr. Collins). He is right and wrong. It is not a question of giving the health commissioner discretion: he already enjoys discretion. The problem with the new clauses is that they would take that discretion away from him. I cannot see any way round that. If a fixed period of three years is written into the Bill, it will restrict the commissioner's discretion.

Like many other hon. Members, to try to figure out what the right process should be, I looked back to the purpose behind the setting up of the post of health service commissioner. I read the Library's research paper of 8 December 1995 on the Health Service Commissioners (Amendment) Bill. It contains an interesting section written by the then health service commissioner for England, W. K. Reid, who said:

Only exceptionally will I investigate a complaint about matters which are more than 12 months old. This time limit makes sense in protecting professionals from being in permanent jeopardy and also because of the difficulty of getting at the truth when a considerable period has elapsed.

That is what he said in principle, but the reality is different.

A person may not make the initial complaint until almost a year has gone by. The first stage of the complaints procedure should be fairly quick, but it can sometimes be delayed for several months. If the complainant is not happy with the first stage, he goes on to the second stage, which is the independent panel, and that can also take several months to work through. In practice, a case involving the health service commissioner goes on for 18 months to two years or beyond that.

11 am

I understand that the commissioner is now saying that he does not want a limit of less than three years, because that would restrict his discretion to act more than one year after the event. He has said that he feels he would be unlikely to want to exercise his discretion to investigate events that occurred more than three years previously, but "unlikely" is not the same as "definite". I would want the ombudsman to investigate the sort of cases mentioned by the hon. Member for Westmorland and Lonsdale, and I am sure that the general public would as well. I recognise that there must be some limit, and I would like it to be included in guidance to the ombudsman; but I do not think that it should be a set, regular limit.

All Members will have been consulted by people with limited information about a problem that arose 10 years earlier. It is often difficult to explain that there is little that one can do oneself, little that the courts can do and, indeed, little that anyone can do about a problem that arose so long ago. People's memories are not so good after such a long time has elapsed, and records get lost.

Recently, when I was clearing out some old papers that I thought were just rubbish—council documents—I found a load of personal casework that I had done for people. I had to bring it here to shred it. I was going to chuck it in the bin, but I suddenly realised that I could not do that, because it contained a lot of confidential information.

Let us suppose that I had destroyed that information. Someone might have come to me five years later—as we all know, this sometimes happens—and said, "I have no papers, but Dr. Such-and-such will have the records," or "I gave the citizens advice bureau a copy."

I am slightly confused by what my hon. Friend is saying. On the one hand, he seems to be rather against the new clause; on the other, he seems to be giving a very good reason for a three-year time limit.

I think that there are good reasons for guidance on a time limit, but I do not think we should make that limit definitive, and say that there should be a cut-off after three years.

I was going on to say that, although we find cases such as I have mentioned frustrating, we also find cases unconnected with the health ombudsman—for instance, immigration cases and cases relating to the Department of Social Security—frustrating when a limit applies. Often, a member of the legal profession has forgotten to register a case on time. People come to me and say, "I am sorry; I have exceeded the limit by a week, but it is the solicitor's fault, not mine. What can you do about it?" I have to tell them that I can do nothing.

Sue the lawyer.

I am always reluctant to tell my constituents to become involved with the legal profession. My experience of their involvement with the legal profession is not good. I mean no disrespect to certain Members who may be present, but I do not hold the legal profession in the highest regard, to be honest. In many instances, its members have not served my constituents well.

The right hon. Member for Bromley and Chislehurst (Mr. Forth) managed to put the arguments against his new clause much more coherently than I could. I think he accepted that there were difficulties with it. My hon. Friend the Member for Hendon (Mr. Dismore) put the case for his new clause much more robustly. I realised last night that this was a complicated issue, but it became more and more complicated as my hon. Friend went on talking. I think that good law should be easy to understand.

This may be a slightly tortuous point, but might not the fact that my hon. Friend the Member for Hendon (Mr. Dismore) is making the issue more difficult have something to do with the fact that he is a lawyer?

That may be the problem. Perhaps lawyers think in a different way from the rest of us.

I understand that the purpose was to provide more flexibility, but it has become a case of "There is this exception, and there is that exception, and if all else fails we can refer to section 33, which gives us a general dispensation." Why have all that, when we can have a general dispensation in the first place? We can say to the ombudsman, "You have the discretion, but if you are to exceed the three-year limit you will have to be able to justify that—because there are exceptional circumstances, or perhaps because this is a case of such enormity that the public would want the ombudsman to address it." I am sure that the ombudsman would not take that discretion lightly. If he investigated cases beyond the three-year period, he would have to be able to justify that, and justify it in public.

I disagree with new clause 7, and I am afraid that I disagree with new clause 4. I also remain to be convinced by the Minister that anything in the Government new clauses allows the discretion that the health service commissioner now has to be exercised in the future. I find it difficult to accept what I see as a weakening of the ombudsman's position. To weaken the ombudsman's position is to weaken the position of my constituents. There will always be people with genuine complaints that have failed at stages 1 and 2; the ombudsman will provide them with their last chance before they must consider the possibility of legal action. I want the ombudsman's position to be strengthened.

I think that most of us, apart from the hon. Member for Nottingham, East (Mr. Heppell), agree that it is necessary to introduce some time limit on the jeopardy that practitioners face. That view was widely held on Second Reading and in Committee.

We have all been looking forward to the new clauses tabled by the Minister, and to have an opportunity to examine the criteria that she has selected. We have also been given that opportunity by the hon. Member for Hendon (Mr. Dismore) and my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth), whose new clauses head in the same direction, but deal with the matter in a slightly different way.

We are seeking to balance two opposing imperatives: protecting practitioners from an open-ended jeopardy, and the individual's right of access to the complaints system and, ultimately, to the health service commissioner. In amendments or new clauses that place a limit on the time within which a reference can be made to the commissioner, we must strike the right balance to ensure that the system is fair to everyone.

As the debate has ranged rather widely, we are slightly in danger of losing sight of the fact that we are talking primarily about people providing general medical, pharmaceutical or dental services. We are not, in practice, talking about complaints arising from the kind of procedures that take place in hospitals. Health authorities and NHS trusts are continuing, surviving bodies; they do not, in the normal course of events, cease to provide services as a general medical or dental practitioner may. We are addressing ourselves primarily, and in practical terms, to complaints that arise in relation to general practitioners.

At the beginning of his speech, the hon. Member for Hendon emphasised the fact that the national health service commissioner represents only the third tier of a three-tier complaints system in the NHS. The key issue is when the clock starts ticking. There are two clear options, and possibly a third. The hon. Member for Hendon would have the clock start ticking at the moment when the event that gives rise to the complaint occurs, or, in exceptional circumstances, later, when knowledge of the alleged problem, or the cause of the complaint, comes to light—or when the person making the complaint reaches the age of majority.

Under the Government's new clause and, I think, the new clause tabled by my right hon. Friend the Member for Bromley and Chislehurst, the relevant point of time would be the point at which the complaint is made to the ombudsman. The clock would start to tick on the day when a practitioner ceased to provide medical, dental or pharmaceutical services. The time when the complaint to the ombudsman was made would be the point of reference in measuring whether the three years had elapsed. I have suggested a third possibility: the relevant point should be that at which the complaints procedure is embarked upon—the point where the individual first takes a practical step to seek redress for the alleged injustice.

Essentially, that is a practical point. What concerns me is that the national health service complaints procedure at the first and second tiers takes a certain amount of time to exhaust itself. I know from constituency cases of my own—other hon. Members will, I am sure, have had the same experience—that, often, if a perceived injustice—or maladministration as we should perhaps properly call it—in the NHS goes hand in hand with a traumatic experience, perhaps the loss of a relative, it may be some time before people feel able to confront that issue.

In the past couple of years, I have dealt with constituency cases where people have come to me a full year after events have taken place, having got through a bereavement period, gone back, looked in a slightly different light at what happened—perhaps in a slightly harder-nosed way—and perceived that something went wrong when the process was carried out within the hospital, or by the general practitioner. Therefore, it may be a year or so before an individual kicks off the complaints process at the first tier.

What I do not know—I hope that the Minister might be able to throw some light on it—is the average length of time taken for the NHS complaints procedure at the first and second tiers to exhaust itself. The hon. Member for Hendon suggested that it could be a year or two. If so, we could, at least theoretically, find that if a complainant started the first tier of the procedure a year or so after an event occurred, and the complaints procedure at the first and second tiers took a year or two to exhaust itself, he would no longer be able to take his complaint to the ombudsman if, in the extreme example, the practitioner in question had left the service the day after the occurrence that gave rise to the original complaint.

That might be an extreme circumstance, but it is important for us to be reassured that a three-year period to the point at which a reference is made to the ombudsman is the right time limit, will not unreasonably or unfairly exclude anyone who has gone through the whole process of the NHS complaints procedure reasonably and sensibly, and will allow for the fact that people who have suffered bereavement may take some time before they feel able to address the issue of bringing a formal complaint in the first place.

11.15 am

The hon. Gentleman would start the process from the date of the occurrence and would bring the process into line with the practice of common law. That has a superficial attraction—the alignment of the NHS complaints procedure timetable with the timetable in cases of clinical negligence—but it seems that we are dealing with two different issues.

The legal processes will deal with cases of clinical negligence. The health service commissioner is there to deal with cases of "maladministration and service failure". Those will not always involve clinical negligence, but they may involve issues that perhaps give rise to wider public interest: issues of public concern about how hospitals are run and managed, and how procedures are controlled within hospitals.

The hon. Member for Ellesmere Port and Neston (Mr. Miller) gave an example of a hospital carrying out a procedure while having run out of a drug that might reasonably be needed during that procedure. The hon. Member for Hendon intervened to indicate that that would not be a ground for a claim for clinical negligence, but it might be a ground for a claim of maladministration. It may be something that hospital managements in general wanted to review to ensure that drugs that might be needed during a procedure were in place before it started.

My real concern about the new clause tabled by the hon. Member for Hendon is that it is much more restrictive than the new clauses tabled by my right hon. Friend the Member for Bromley and Chislehurst and by the Secretary of State, in that it would include within its scope—the time limit will normally be three years—not just cases relating to practitioners who had left the service, but all cases relating to practitioners who remained in the service and, indeed, cases relating to incidents that arose in hospitals, where the complaint was against the hospital trust, or perhaps the health authority.

In seeking to tighten the scope of the health service commissioner, the hon. Gentleman is going well beyond the original intentions of my right hon. Friend the Member for Wealden (Sir G. Johnson Smith) when he introduced the Bill. I am not sure that we would think such a measure helpful. My reading of the debate so far today, in Committee and on Second Reading is that there is no consensus in the House that we need to tighten the procedure to make it more difficult for people to bring complaints to the health service commissioner.

In his defence, the hon. Gentleman argued that it is custom and practice—one of those phrases that I have learned that lawyers use when there is no other cover available to them—that the present ombudsman will choose to look at cases only if they are brought to him within a year of the occurrence of the event. I do not know whether that is the case or not. As he said, future occupiers of the ombudsman post may choose to look differently at that, but if we are to base what we do today on the argument that it is the custom and practice of the ombudsman not to consider cases arising out of events that occurred more than one year ago, there will be no point in passing any of the new clauses. They would all be redundant. Therefore, we must ignore the current custom and practice of the ombudsman, look at what he is legally empowered to do and how we are seeking to amend those legal powers.

I ask the Minister to clarify one other small point. I apologise if it is something that has already been mentioned during deliberations on the Bill. Can she confirm that, in relation to the Health Service Commissioners Act, the term "family health service provider" includes both a person providing general medical services and a person providing personal medical services, so that the both types of family health services providers are covered?

I hope that the Minister will also be able to tell us whether the Government have any more general intentions of changing and strengthening the NHS complaints procedure, perhaps in ways that address some of the issues raised today particularly by the hon. Member for Hendon.

It seems to me that that analysis inevitably leads to the conclusion that the mood in the House does not favour new clause 7—leaving us to consider new clause 4 and new clause 5.

My hon. Friend the Member for Westmorland and Lonsdale (Mr. Collins) made a persuasive case for considering new clause 4—tabled by my right hon. Friend the Member for Bromley and Chislehurst—to be superior to the Government's new clause 5. The latter would, after three years, exclude from jeopardy all practitioners leaving the health service, whether voluntarily by retirement or resignation, or involuntarily by removal from the register. New clause 4 has the benefit of discriminating between practitioners who had of their own volition left the service—perhaps, but not necessarily, to avoid scrutiny by the ombudsman—and practitioners who had been removed from the service because their conduct had caused serious concern.

I think that there is a case for distinguishing between the two classes of practitioners, and that new clause 4 would make it possible, beyond the three-year period, to subject to investigation a practitioner who had been removed from the register perhaps as the result of another, previous case. Superficially at least, that seems to be an attractive proposal. If the Minister is not attracted by the distinction to be drawn between practitioners who have left the service for natural or voluntary reasons and those who have left by expulsion, I should be interested to hear why she thinks that it is not appropriate to draw that distinction.

It is, of course, for my right hon. Friend the Member for Bromley and Chislehurst to decide whether to press new clause 4, or to seek leave to withdraw it and allow the Government's new clause 5 to proceed. Nevertheless, I hope that, if he decides to seek to withdraw his new clause, he will press the Minister to explain how she will deal with that important distinction between new clause 4 and new clause 5.

I congratulate the right hon. Member for Bromley and Chislehurst (Mr. Forth) on his thoughtful observations. Although new clause 4 is elegant, we may not be able to support it fully. Nevertheless, it is clear that great minds think alike, although the means of achieving the shared objective may be open to debate.

Throughout our consideration of the Bill, we have regarded its purpose as being purely to close the loophole in relation to family health service practitioners and independent providers. New clause 4 would limit the remit of the health service commissioner, albeit in a small way, in relation to health service bodies. Therefore, I do not think that it would be appropriate to accept the new clause. I shall attempt to explain in more detail why we think that it should be rejected.

As some hon. Members have said, the health service commissioner has powers to investigate complaints about failures in the service provided by health service bodies, rather than complaints about the actions of specific individuals. It follows, therefore, that complaints about treatment received in NHS organisations are the responsibility of that body. Currently, the health service commissioner can investigate such a complaint regardless of whether any employee concerned still works for the NHS because—as hon. Members have also said—the NHS body continues to be a legal entity.

The purpose of new clause 4—if I correctly understand the intentions of the right hon. Member for Bromley and Chislehurst—is to impose a three-year time limit following the retirement or resignation from the NHS of a person who has been the subject of a complaint. In this context, that would apply to health service professionals employed by NHS trusts and other employing bodies.

An absolute time limit of three years would have some unfortunate effects. For example, if a complaint were made against a consultant surgeon more than three years after he ceased to be employed by the NHS, the health service commissioner would no longer be able to conduct an investigation. It cannot be right to impose such a constraint and so to limit the commissioner's ability to investigate the NHS organisation concerned.

Moreover, how would the limitation apply when several staff members of the NHS body concerned were involved in the matter leading to the complaint? Would the resignation of one staff member mean that the matter could not be investigated? The distinction between the individual and the body is, therefore, a very important one.

Section 9(4) of the Health Service Commissioners Act 1993 currently provides that the commissioner shall not entertain a complaint made more than a year after the day on which the complainant first had notice of the matter complained of. However, and very importantly, the commissioner has discretion to waive that limit when he considers it reasonable to do so.

I should also like to try to clarify a matter on which there has been repeated comment—the reference to the one-year limit and the discretion as "custom and practice". They are not custom and practice.

Section 9(4) makes it clear that the clock starts to run on the day on which the complainant discovers the problem. The complainant then has a year to raise the complaint with the commissioner, unless the commissioner thinks that it is reasonable to allow longer for it to be made. The second test provided in new clause 5 is that the commissioner must be satisfied that more than three years have not passed since the practitioner practised or the independent provider provided the services.

Therefore, the one-year limit and discretion are already clearly provided for in legislation and are not affected by whoever may currently be the commissioner.

The commissioner's discretion to waive the one-year limit allows him or her to continue to investigate complaints against an NHS body regardless of whether the person who is the subject of the complaint is still employed by the body. The limit that we propose in relation to practitioners and independent providers is three years from when they—the practitioner bodies, not their staff—cease to be involved in the NHS.

The Government feel that new clause 4 would impose unfortunate restrictions on the commissioner's remit to investigate complaints against NHS bodies. Although, at first sight, the proposed time limit of three years for those bodies would parallel the time limit proposed by the family health services and independent providers, in practice, it would in my view inappropriately constrain the commissioner's discretion to conduct investigations. Therefore, I hope that the House will agree that it is not appropriate and should, therefore, be rejected.

The hon. Member for Westmorland and Lonsdale (Mr. Collins) asked what would happen if a practitioner were struck off. One of the Government's new clauses, which I shall speak to in a moment, purposely talks of ceasing to practice or provide. There should be simplicity in the commissioner's role, and it should be easy for people to use the facility. Therefore, although it may be an attractive proposition to extend the time limit in relation to those who are struck off, such provision would run counter to our objective of ensuring that simplicity. I may say more on that in speaking to later provisions on professional bodies and other remedies.

Could the Minister clarify that last point? She said that the Government's new clause contained the phrase "ceased to practise or provide". I do not see that phrase in new clause 5. Perhaps we are speaking at cross-purposes.

Yes, it is when I come on to clause 5; I am taking clauses 4 and 5; it is clause 9(4) which makes that quite clear. Can I come back to that in a moment? I will come back in a moment to the phrase that we use. Government clause 4A and new clause 5 say that a person who is no longer—I am sorry; it is in clause 4. May I come back to that in a moment? I have got it in my notes. Can I move on to clause 5? The test is when the person concerned ceased to practise or provide health care. I may be able to give the hon. Gentleman the precise reference later.

On Second Reading and in Committee, I made it clear that the Government believe that it is inappropriate and unfair that family health service practitioners and independent providers who would be affected by the Bill should be subject to investigation by the health service commissioner indefinitely. That would be the effect of the Bill as it stands, because of the ombudsman's discretion to waive his one-year limit on bringing complaints. We have been committed from the outset to inserting a statutory limit on how long after the person concerned ceased permanently to be a practitioner or provider the ombudsman would be able to investigate a complaint. New clause 5 fulfils that commitment. I am afraid that I still cannot find the relevant passage to quote to the hon. Gentleman, but I shall come back to his point.

New clause 5 would impose a three-year limit after the cessation of practice or provision. Our aim is not to curtail unreasonably the ombudsman's powers to investigate retired GPs, but to reassure practitioners that, as in other areas such as civil litigation, their liability will at some point come to an end. We have consulted on the appropriate period to achieve that balance. There has to be sufficient scope for the ombudsman to exercise his discretion to waive his time limit. It quickly became clear that a year or 18 months would be too short a period. Several examples have been given of the time that it can take to bring complaints.

Let us suppose that someone goes to see their GP on the day before that GP retires. The GP, perhaps feeling a bit demob happy, does not ask many questions or examine the patient as he had expected and tells him to go home and take two aspirins. Ten months later, it turns out that the patient has a condition that the GP, now retired, should have diagnosed at the outset. He makes a complaint to the GP's old practice, in accordance with NHS complaints procedures, but is dissatisfied with the outcome. A conciliation meeting follows, as part of the local resolution action, so the whole process takes about six weeks.

The patient then applies to the health authority for an independent review panel investigation, which, after due consideration, is granted. By the time that the panel has done its work and, submitted its report—this is an extreme example to illustrate the case—a further four months have passed, because the lay chairman was away on holiday for three weeks just after the panel hearing. By now, the GP has been retired for about 16 months.

The patient gets the report and, after thinking about it for a bit, goes on holiday. He then decides that he is still dissatisfied and approaches the ombudsman, nearly 18 months after the event about which he is complaining and the date when the GP retired. Strictly speaking, the ombudsman's one-year limit should come into play, but because of the circumstances, he may decide that it is appropriate to waive his limit in this case. Setting a time limit of one year on the investigation of retired GPs would restrict the ombudsman's power in a way that would be contrary to the spirit of the Bill, which was intended to close a loophole without restricting or significantly widening the powers available.

The key question is how long after the event the ombudsman might want to exercise his discretion. We thought that the most reasonable starting point would be to ask the ombudsman. He thought that three years would be a sensible compromise. The difficulties in conducting a meaningful investigation into something that happened much longer ago mean that he would be unlikely to want to exercise his discretion beyond that point. Interestingly, that coincided with some of the suggestions made by hon. Members on Second Reading. As it seemed likely to be acceptable to the majority of those with an interest in the issue, we have decided that three years is the appropriate period.

The right hon. Member for Wealden (Sir G. Johnson Smith) is seeking to plug a loophole that treats certain complainants unfairly. I have already made it clear in previous debates that I have considerable sympathy with his motives, and the Government have no wish to prevent him from succeeding. However, I have also made it clear that I have a responsibility to ensure that all those involved are treated fairly—those complained against, as well as the aggrieved complainants. I hope that he agrees that the new clause represents a reasonable compromise to achieve the necessary balance.

Before she finishes her speech, will the Minister address the distinction in new clause 4 between practitioners who have been struck off and those who have resigned?

The purpose of the Bill is to close a loophole and we do not feel that that distinction would be helpful or would significantly add to the Bill. New clause 5 uses the words

the last day on which the person was a family health service provider.

We feel that that is the appropriate way forward.

The purpose of the Bill is indeed to close a loophole and allow practitioners to be investigated after they have retired from the service. The purpose of the Government's new clause is to limit the jeopardy of ordinary practitioners so that they do not retire with open-ended jeopardy. Does the Minister believe that the same protection should be afforded to practitioners who have been struck off for malpractice if another case of malpractice then comes to light? In new clause 4, my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) cleverly distinguished between practitioners who have been struck off and those who have merely resigned.

There are many other remedies available—from the General Medical Council, for example. We are trying to strike a fair balance, not to provide protection. We felt that the most appropriate test for the role of the ombudsman was to start the clock on

the last day on which the person was a family health service provider.

It is disingenuous to regard that as an attempt to protect people who have been struck off. We are trying to strike the right balance.

The spirit of the Bill is about enabling people to see justice done, not to gain pots of money. The fact that the practitioner has been struck off is the kind of justice that they would want, so the argument becomes academic.

Lawyers would call that a moot point.

Is my hon. Friend a lawyer as well?

My only defence is that I do not practise as a lawyer.

I urge hon. Members to see the new clause in the light of the purpose of the Bill and realise that the three-year limit is a fair one.

As for new clause 5, the right hon. Member for Wealden was seeking to plug a loophole whereby certain complainants were being treated unfairly. I have already made it clear in previous debates that I have considerable sympathy with his motives, and that the Government have no wish to prevent him from succeeding. However, I have also made it clear that I am responsible for ensuring that all those involved are treated fairly—those complained against, as well as the aggrieved complainant. I hope that he agrees that our provision is a reasonable compromise to ensure the necessary balance.

New clause 6 may have come as a surprise to some hon. Members, as the Government had not indicated their intention to table such an amendment. Indeed, it was the subject of considerable debate involving among others my hon. Friend the Member for Hendon (Mr. Dismore). I am sure that on reflection, however, they will have realised that the new clause is nothing more than a piece of minor housekeeping to avoid confusion and misinterpretation.

Most right hon. and hon. Members, particularly the lawyers among us, will be aware that it is not the normal practice of the House for amending legislation to be given retrospective effect. Indeed, we have a clear example of that in the legislation that we are considering today.

The sections of the Health Service Commissioners Act 1993 that would be affected by the Bill were inserted into it by the provisions of the Health Service Commissioners Act 1996. The 1996 Act came into force on a specific date—1 April 1996—and had no retrospective effect on complaints that had already been turned down because they were out of jurisdiction when they were made.

My hon. Friend probably misunderstood my criticism of the new clause. The new clause is retrospective in that it provides a potential future remedy for a problem that may have already occurred. The alternative suggestion is that the time limit should be from the date of the incident or from a date to be set when the Bill comes into force, thus avoiding retrospectivity, which the Government's new clause would create.

We have two lawyers and two opinions.

Three opinions.

That is known as synergy. Nevertheless, I hope that, on reflection, my hon. Friend the Member for Hendon will agree with our proposal.

Unfortunately, the lack of retrospectivity was not made explicit in the 1996 Act. As a result of that failure, significant numbers of complainants contacted the ombudsman once the new jurisdiction became known, either seeking to have earlier complaints re-examined, or making complaints about matters that pre-dated the extension of his remit. In his annual report for 1996-97, the ombudsman said:

These premature approaches to the Commissioner and misunderstanding about the new NHS complaints procedures account for much of the increase in the number of complaints received in 1996–97… In summary, although I received more complaints in 1996–97 than in previous years, the percentage which I could investigate was lower…the significant increase in complaints received and the decrease in the proportion I could investigate caused an imbalance in the workload between my screening and investigation departments.

Not only did the provisions raise inappropriate expectations, they had a detrimental effect on the ombudsman's office.

It therefore seems only common sense that the Bill should seek to avoid similar problems. Although there are relatively few cases in which the ombudsman has been constrained by the current wording of the relevant sections of the 1996 Act, it nevertheless seems wise to avoid any possibility of doubt by making it explicit in the Bill that those cases cannot be re-opened as a result of the Bill. I hope that the right hon. Member for Wealden will agree that our proposals are a sensible precautionary measure that he can support.

11.45 am

I now turn to new clause 7, tabled by my hon. Friend the Member for Hendon. As I emphasised on Second Reading and in Committee, the Government are persuaded that the loophole concerning family health service practitioners and independent providers that was exposed by the right hon. Member for Wealden should be closed. However, the new clause would once more seek to address time limits for complaints against health service bodies, so I do not consider it appropriate.

As the Minister has just referred to family health service practitioners, will she take the opportunity to answer my question: does that phrase in this context include providers of general medical services and personal medical services?

As far as I am aware, the definition of a family health service provider relates to the person providing the service and their relationship with the national health service. It is not based on a precise definition of the service, but on the relationship with the national health service. However, I am happy to come back to the hon. Gentleman on that.

New clause 7 would bring the limitation period for the health service commissioner's investigations into line with the process of clinical negligence actions. At first sight, it would appear to make a neat parallel between the provisions for the commissioner to investigate complaints and the timetable for carrying out civil actions, but further examination shows that, in practice, this apparently sensible provision would create a number of difficulties. My hon. Friend the Member for Ellesmere Port and Neston (Mr. Miller) made the important point that people want a sense of fairness and an explanation of what happened.

The limitation period for actions for personal injury set out in section 11 of the Limitations Act 1980 is three years after the date of the event giving rise to the action, or three years after the date when the injured person became aware of the cause of the action, if that date was later. However, the court also has powers to disregard the limitation period when it considers it equitable to do so. Therefore, the new clause will not introduce a simple rule of thumb of three years, but instead—and most unfortunately—it would create a complex and unclear period of limitation.

I should like to make a further point with regard to the distinction between the investigation of complaints under NHS procedures and the pursuit of legal claims. The Government believe that providing a clear and logical set of procedures for patients to complain about their treatment under the NHS if they wish to do so is vital. To achieve that, we must retain a clear distinction between the parallel processes of pursuing a legal remedy through the courts and the complaints procedures in the NHS. The new clause would tend to confuse those two quite distinct processes in the minds of patients, so it would be completely unhelpful. Those comments are also pertinent and relevant to my unwillingness to entertain the notion that there should be a different limit for providers who have been struck off. We seek simplicity and I hope that the right hon. Member for Wealden will agree that the new clause does not provide a clear way forward and therefore should be rejected.

I never cease to be amazed by the ingenuity of right hon. and hon. Members in taking over a Bill and spending so much of their agile minds in advancing strong cases for improvements that were not really meant to be part of the legislation. I admire and respect them for it.

I am a very simple man when it comes to the Bill, although on matters such as defence, I can get very complicated. In this respect, I confirm that the Minister is quite correct in interpreting my motives. I was struck by the fact that there was a loophole that allowed GPs to retire to avoid investigation by the health service ombudsman. It seemed fair enough to try to close that loophole.

The various points made by right hon. and hon. Members have struck a chord with me. I have little doubt that such matters require attention. However, I hope that they will understand me when I say that the Minister has interpreted my motives correctly. Therefore, it will come as no surprise to her or to the House that I agree with what she has proposed.

Of course I recognise that other matters can and should be raised, which have come up in this debate and might be the subject of future legislation. I understand that the Government are reviewing the work of the public services ombudsman, so I hope that when these matters come before the House, the Government will take into account the proposals in the new clauses. However, for the reasons that the hon. Lady gave, I do not think that they should form part of this Bill. No doubt they will appear in future legislation.

Quite simply, the loophole should be closed. Therefore, I hope that the Government's new clauses will be accepted by the House. I am most grateful for the attention that people have given the Bill.

I am very conscious of what my right hon. Friend the Member for Wealden (Sir G. Johnson Smith) has said. It is interesting that this is, by any account, a non-controversial Bill—indeed, that term was used by no less eminent a person than the Leader of the House yesterday during business questions. Yet we have justified the process by which this non-controversial Bill has received detailed attention on Report, as a result of new clauses being tabled by the Government and by a Government supporter, and very productively, too. The Bill's promoter has just supported that view.

This is something to which we might return very early next week as an argument. Who knows? I am simply putting down a marker and illustrating the point in a way that may be of interest to the House on Monday.

I listened carefully to what the Minister said. I am not sure that we have yet had an answer to the question asked by my hon. Friend the Member for Runnymede and Weybridge (Mr. Hammond) about family health service providers.

May I refer the right hon. Gentleman to new clause 5? Proposed new subsection (4A) of section 9 of the Health Commissioners Act 1993 refers to family health service providers and proposed new subsection (4B) also refers to independent providers. Those proposals will cover both family health practitioners and providers of personal medical services.

It is important that we clarify these matters, and I am grateful to the Minister for taking the opportunity to do so. The value of the process is that it allows us to clarify matters, and gives the Minister the opportunity to put things on the record. It is a proper use of the time and the procedures of the House.

The Minister took time and care, as ever, to explain why she thought that my new clause was defective. I accept her arguments in the terms in which she made them. It was obvious that flaws were emerging during the exchange of views when I was speaking to my new clause. I readily accept that. I will, for the moment, go along with my right hon. Friend's recommendation that we accept new clauses 5 and 6, but with one reservation. I still believe that we have not yet had an answer to the point about struck-off practitioners, initially made by my hon. Friend the Member for Westmorland and Lonsdale (Mr. Collins) and reinforced by my hon. Friend the Member for Runnymede and Weybridge. I do not think that it would be appropriate or fruitful to pursue the matter further at this stage, but those in another place might want to consider it, building on what has been said here and taking account of the Minister's comments, to see whether the Bill could be yet further improved before completing its inevitable—I trust—passage through all its stages to ultimate Royal Assent. That would also be a very proper use of the parliamentary process. The House considers the Bill, it is then looked at in detail in another place and amended or improved where necessary.

Today's debate has been useful. I have felt honoured to have played my little part in what we have so far done to the Bill. Goodness knows, there is still a little bit to go. However, I would not want to delay the House any further at this stage. On that basis, with these brief remarks, I beg to ask leave to withdraw the motion.

I beg to move amendment No. 12, in page 1, line 20, at end insert—

'(4) In section 3 (general remit of Commissioners)—

(a) at the end of subsection (1) insert "or, in the event that the person the subject of the complaint has retired or resigned from the National Health Service, refer the complaint to the professional body of the registered medical practitioner, dentist or nurse who is the subject of the complaint;"

(b) at the end of subsection (1A) insert "or, in the event that the person the subject of the complaint has retired or resigned from the National Health Service, refer the complaint to the professional body of the registered medical practitioner, dentist or nurse who is the subject of the complaint;"

(c) at the end of subsection (1C) insert "or, in the event that the person the subject of the complaint has retired or resigned from the National Health Service, refer the complaint to the professional body of the registered medical practitioner, dentist or nurse who is the subject of the complaint".'.

The amendment would half plug a consequential loophole. Section 3(1) of the Health Service Commissioners Act 1993 states:

On a complaint duly made to a Commissioner by or on behalf of a person that he has sustained injustice or hardship…the Commissioner may, subject to the provisions of this Act, investigate the alleged failure or other action.

There is then a cross-reference to subsection (1A) of section 15, which states that where in the course of an investigation a commissioner comes across something that is

likely to constitute a threat to the health or safety or patients…the Commissioner may disclose the information to any persons to whom he thinks it should be disclosed…

That could be the professional bodies, for example.

The problem is what would happen if the commissioner decided not to conduct an investigation. My amendment would deal with that problem, so that if the commissioner decided not to conduct an investigation into someone who had retired or resigned from the health service, he would still be able to refer the matter to the professional body. At present, he cannot do that.

12 noon

That matter was highlighted by the health service ombudsman in his annual report for 1998–99, paragraph 4.6 of which stated:

During 1998–99 there were other occasions in which complaints to me raised issues which I thought it appropriate to pass to the regulatory body concerned, because there was a possible risk to the health or safety of patients. However, the effect of the wording of the legislation governing my role is to restrict the circumstances in which I can pass such information to another organisation, such as the GMC or the Commission for Health Improvement. For example, I cannot disclose information to another organisation if I decide not to investigate the complaint, or if the matter of concern falls to be disclosed in one of my reports.

That relates to the reference I made to the relationship between sections 13 and 15 of the principal Act.

The report continued:

As a result, paradoxically, I have less scope to bring concerns to the GMC, for example, than a private citizen has. And my medical and nursing advisers are in a potentially invidious position if they consider that they have a professional duty to act on concerns arising from their scrutiny of a complaint to me.

The ombudsman states that he told the Government and the Select Committee on Health about that problem, and proposed that his powers should be widened to deal with that loophole. That is what my amendment tries to do. Paragraph 4.7 of the report stated:

I am pleased to report that in March 1999, in response to an amendment to the Health Bill tabled in the House of Lords by Lord Harris of Haringey…the Government agreed to consider proposing an amendment which would have the effect that I, and the regulatory bodies, were looking for. That would make it more possible for my office to play its part in developing effective working communication with other clinical governance organisations.

The measure offers an opportunity to plug that loophole.

I tried to table a more general amendment that would have affected all investigations—or rather non-investigations—but, unfortunately, it was not selected. The selected amendment deals with the position when a registered medical practitioner has retired or resigned from the NHS. However, that was a sensible selection, because we know from the statistics for 1998–99 that there were 2,869 complaints to the ombudsman, but only 119 investigations. Of those, 62—about half—involved a clinical complaint. One can thus extrapolate that, pro rata, probably 1,500 medical issues were referred to the ombudsman in 1998–99. The number is even greater in 1999–2000, when the ombudsman estimates that he will receive 3,450 complaints and will conduct 150 investigations.

The problem is that we could end up with about 3,500 complaints that are not investigated and with which the ombudsman can do nothing else. If half those involve clinical issues, the ombudsman might like the opportunity to refer them on to the General Medical Council or whoever for action—as he says in his report—even if he decides not to conduct a formal investigation himself.

The circumstances in which that is likely to arise may well be when a practitioner has retired or resigned from the health service. Under the Bill, the ombudsman would be entitled to look at a complaint, but he might think that, as the person had retired or resigned and would not be going back into practice, there would be little point in his spending a lot of time and money making one of his 150 investigations into that case. However, he might decide that the GMC should be aware of the matter, in case the person tried to do locum work, for example. It would not be worth devoting the ombudsman's resources to the problem, but the GMC should be made aware of it.

At present, the ombudsman could do nothing about such a case, as he pointed out in his report. His staff are put in a difficult position, because his medical advisers might want to take action, but could not do so. My simple amendment would deal with that problem.

The amendment is in three parts, because that is how the original legislation was drafted. It would be a worthy addition; it would half plug a loophole that would emerge as a result of the Bill.

When the complaints procedure was set up in 1996, the clear intention was that it should be completely separate from disciplinary procedures. The prime aim of the ombudsman procedure is to resolve problems and satisfy the concerns of the complainant, while being fair to all those who are the subject of a complaint.

The amendment proposed by my hon. Friend the Member for Hendon (Mr. Dismore) would give the health service commissioner the statutory provision to refer a complaint made to him to the disciplinary bodies of doctors, dentists and nurses, subject to section 15 of the Health Service Commissioners Act 1993.

It has been suggested that the commissioner might not already have that power, but it is clear that he is able to disclose information to regulatory bodies about any person who is likely to constitute a threat to the professional bodies. He is not as powerless as has been suggested. The commissioner has suggested to my officials that he thinks that the onus should be on the complainant to disclose such information. He therefore does not require such statutory powers.

Although an argument could yet again be made to widen the Bill's remit, that would substantially detract from its original and precise intention of plugging a specific loophole. I shall not go into detail on the confusions and ambiguities that the amendment might create, but would simply point out that it does not accord with either the current complaints policy or the wishes of the health service commissioner. It should therefore be rejected.

May I put an additional point to my hon. Friend? I quoted from the ombudsman's report in which he suggested that the Government had agreed to consider proposing such an amendment. I fully understand the argument that my amendment may be premature and that it should deal with all complaints and not just those against people who have retired or resigned from the health service. However bearing in mind the assurance that was given to the ombudsman, is my hon. Friend saying that, in future, such an amendment will not be made to the legislation relating to the commissioner? Or is she saying that, in accordance with the assurance previously given, such an amendment will be proposed?

I am sure that my hon. Friend is aware that a review of the roles of all the ombudsmen is currently being carried out by the Cabinet Office, and I do not wish to pre-empt the outcome of that. I am saying that, within the specific purpose of this Bill, I do not think that the amendment is appropriate. It is for that reason, rather than on the basis of the merits of the case itself, that I suggest that we reject the amendment.

Now that I have listened to my hon. Friend, and since my proposal was something of a probing amendment, I beg to ask leave to withdraw the amendment.

I should have thought that the Minister might want to give the House a short explanation of the amendment. She might have wanted to argue that the Act will not extend to Northern Ireland because some form of devolved arrangements will be in place there; I do not know. If that were the case, one could understand the amendment on a strictly constitutional basis. However, it is a risk to suggest that, by the time the Bill receives Royal Assent, everything in Northern Ireland will be as the Government and the rest of us would like it to be. I am not convinced that that is the appropriate way to proceed.

That is one argument that I can imagine the Minister wanting to make had she sought to explain the amendment to the House. As it is, we are left floundering and guessing, so I shall just have to flounder and guess a little bit more to see whether we can work out for ourselves why the hon. Lady might not want the Bill to extend to Northern Ireland. Either we shall be told that the issue can be dealt with adequately by the devolved arrangements that the Government hope will be in place in Northern Ireland or—this is a less likely explanation—that institutional arrangements, the relationships between patients and practitioners and the remit of the health commissioners differ sufficiently in Northern Ireland for it to be appropriate to disapply the provisions of the Bill there.

If the latter explanation is correct, we need from the Minister a reassurance and a little detail about whether she is satisfied—and whether we and, more importantly, my right hon. Friend the Member for Wealden (Sir G. Johnson Smith) should be satisfied—that sufficiently similar provisions already apply in Northern Ireland for it not to need the benefit of the Bill. That is the only other explanation that I can think of.

Several possibilities exist, and the House deserves and requires an explanation from the Minister as to why we should accept amendment No. 11.

I suspect that the Minister's explanation may be that the 1993 Act extends only to England, Wales and Scotland. In that case, why is the Government amendment necessary? My right hon. Friend's Bill contains only amendments to the 1993 Act. I am not a lawyer, although there are lawyers in the Chamber who may wish to contribute to our short debate and give us the benefit of their possibly superior knowledge on the subject. It seems to me that if a Bill is restricted to making amendments to an Act of limited geographical scope, including that geographical limitation in it is entirely redundant. Unless hon. Members who understand such matters better than I do can explain what the Government amendment adds to the Bill, I urge the Minister to withdraw it and keep the Bill as short as possible.

With your permission, Mr. Deputy Speaker, I should like to extend our debate slightly and examine the position in Scotland. I understand that the 1993 Act and the Health Service Commissioners (Amendment) Act 1996 apply to Scotland. I support the Bill. Has my hon. Friend the Minister had discussions with the Scottish Executive on powers to introduce the measure in Scotland so that the legislative gap is covered there as well?

Order. Perhaps the hon. Gentleman and the Minister could discuss that privately. We are discussing an amendment about Northern Ireland.

I took the Government amendment to be an innocent, tidying-up amendment until I heard the speech of the right hon. Member for Bromley and Chislehurst (Mr. Forth), which made me look at section 22 of the 1993 Act, which deals with the Act's extent and commencement. It states:

The following provisions of this Act extend to Northern Ireland—(a) sections 11, 12, 13, 14(5), 15, 16 and this section.

Curiously, section 11 deals with the process of investigation, raising an interesting question about why the Bill, which deals with aspects of that process, does not include Northern Ireland. That is somewhat contradictory, although there may be a logical explanation for it. It is clear, by omission, that sections 1 to 10 and 17 to 21 of the 1993 Act do not apply to Northern Ireland. That is also true of some of the Act's schedules.

There is therefore conflicting evidence. Section 11 of the 1993 Act, which deals with the procedure on investigations, is relevant to Northern Ireland, as is section 12, which deals with evidence. I accept that section 13 may not be, as it deals with obstruction and contempt. No doubt those who are more expert than me, and certainly some of my legal friends, may tell me that procedures in Northern Ireland are different. Part of section 14, which deals with reports, is also relevant.

I understand why those provisions are extended to Northern Ireland. The Bill deals with persons subject to investigation. Why, therefore, is there a contradiction? The person subject to investigation would not be covered by Northern Ireland legislation, but the investigation itself would be. That needs some explanation. I would be grateful if my hon. Friend the Minister clarified the matter.

As the right hon. Member for Bromley and Chislehurst rightly said, if there is a mechanism to deal with the matter in the devolved process, which we all hope will be up and running in its intended fashion very soon, other parts of the Bill will presumably require amendment and passing on to our colleagues in Northern Ireland. In the interim, I suppose that such aspects fall within the Secretary of State's ambit. I am sure that it would be extremely helpful to our friends in Northern Ireland if we clarified that minor contradiction, so that it did not seem that we were merely ignoring the relevance of health service issues in the Province.

This debate has been a clear illustration of the fact that nothing is ever as straightforward as it appears. I would hate to see the right hon. Member for Bromley and Chislehurst (Mr. Forth) floundering and guessing. I hope that I can enlighten him.

It is important to remember that Northern Ireland has its own complaints commissioner, who is governed by separate legislation. It is therefore clear that a Bill that seeks to amend Acts in England, Wales and Scotland does not extend to that commissioner. It is simply because of the potential for confusion that we contacted the Northern Ireland Departmental Solicitors Office for advice. It wished us to make specific mention to make it absolutely clear that the amended legislation would not apply to Northern Ireland. As I said, its commissioner is governed by different rules.

To refer quickly to Scotland, we have referred the matter to the Scottish Executive, which has referred to the Scottish Parliament the issue of amending the Act in relation to Scotland, as is right and proper.

The purpose of the Bill is to close a loophole as satisfactorily and tidily as possible. We felt that the amendment would make the Bill's remit absolutely clear.

Will the Minister clarify whether there is a Northern Ireland health service commissioner who was established under the 1993 Act but is distinct from the commissioner about whom we have been talking? If that is so, why is she of the view that he should not have the additional powers that we are granting the commissioner for England?

The important point is that Northern Ireland has its own complaints commissioner who is governed by separate legislation. He is therefore outside the Bill's remit. It was simply for clarity's sake that we restated in the amendment that the amended legislation will not apply to legislation governing his powers.

I am grateful to the Minister for clarifying that. That takes us back to my initial remark that the issue is one of redundancy. I am very surprised by what the Minister has said. Although I understand that it does not do any harm to include such an additional subsection merely, as lawyers would put it, for the avoidance of doubt, my understanding from my short period in the House has been that economy is the watchword and that parliamentary draftsmen will always seek to exclude anything that is not absolutely necessary. The proposed additional wording is not absolutely necessary for legal minds clearly and unambiguously to interpret the Bill's scope.

Because parts of the 1993 Act refer to Northern Ireland, it was essential to clarify the matter. The debate showed that it was unclear in the minds of some hon. Members. If a simple amendment can make the matter clear, no harm is done and we should pass it.