§ Mr. Monro
I beg to move, Amendment No. 24, in page 26, line 29, leave out from first 'or' to end of line 30 and insert'in consequence of having been unfairly or unreasonably treated'.This is a technical Amendment. It was suggested to us by the hon. Member for Lanarkshire, North (Mr. John Smith) in Committee. Because of what he said, and in order that the wording here should be consistent with that in the rest of the Bill, I consider this the most appropriate Amendment to propose. It will add a degree of clarity to the Clause.
§ Mr. John Smith
I do not intend to take up much of the time of the House on this matter. As the Under-Secretary says, this is really a technical point. I accept that the grammar used here by the Government is more felicitous than that of the Amendment for which I asked, I am glad that the Minister has taken the opportunity to improve the grammar.
Before we leave the point, however, it is worth reminding the House that this is probably the most important of all the provisions in the Bill relating to the Health Service Commissioner. They are of fundamental importance because they prescribe the area of the jurisdiction he will have in the operation of his functions under the Bill.
Throughout consideration of the Bill in Committee I had reservations about whether the formula used for describing that jurisdiction was the most happy one. The Government have taken the formula used for the Parliamentary Commissioner and transposed it mutatis mutandis to the 2004 Bill. There are obviously conveniences in doing so. I still have reservations whether we have adequately denned in the best way the duties that the Health Service Commissioner should perform and the area of his jurisdiction. However, the Amendment widens the scope a little and might allow more cases to come within his jurisdiction if he took too narrow a view of his jurisdiction as the subsection was originally drawn.
I am glad to repeat the appreciation I expressed in Committee of the Under-Secretary's willingness to look into the matter so constructively. He took me rather by surprise in so promptly accepting the Amendment in Committee, which perhaps explains some of the lack of felicity in the grammar of the Bill without this Amendment.
This will be an important aspect of the service. When England and Wales set up a health commissioner, they will no doubt look carefully at what the Scots have done. We gave the matter careful consideration in Committee. I can only hope that the Clause and the Bill prove effective in practice, as I am sure that both sides of the House are equally anxious that the commissioner should have as wide a jurisdiction as possible.
§ Amendment agreed to.
§ Mr. Carmichael
I beg to move Amendment No. 25, in page 26, line 44, at end insert:'This proviso shall always apply to any person aggrieved where the cause for complaint is within a body in which that person is employed'.
§ Mr. Deputy Speaker (Sir Robert Grant-Ferris)
We can take at the same time Amendment No. 28, in Clause 46, page 28, Line 6, at end insertbut this provision shall not apply in the case of an aggrieved person who is in the employ of the body subject to investigation'
§ Mr. Carmichael
Our representations in Committee showed that we were slightly unhappy that there was to be no direct access to the commissioner. We felt that it was not always necessary to go via the boards and follow the normal process of complaint with all complaints. Our feeling was that in some cases—originally, we thought in all cases—it would be better for an aggrieved person to be able to approach the commissioner direct.
2005 Our view was not accepted by the Government. We have put down these Amendments not merely to string out the process but because we are unhappy that there is no possibility of direct access. We did not, perhaps, reach the stage of clarifying our minds sufficiently in Committee to give examples of people who we thought should have direct access, but we have now come down fairly firmly to the view that at least people directly employed by an area board should have direct access to the commissioner.
We do not, in the words of one of my hon. Friends in Committee, believe that there is evidence of a large body of unsatisfied complaints awaiting the arrival of the commissioner in office. We believe, however, that even if there are only a few unsatisfied complaints or smouldering complaints, they can cause a great deal of trouble and ultimately apathy within the organisation and, in some cases, unworthy rumours about it.
The staff should not be required to go through all the processes that members of the public are required to go through. People inside the organisation are in a special relationship with the senior staff who are responsible for promotion and the allocation of duties.
If the staff were to have direct access to the commissioner, I am aware that there is always the possibility of malicious and frivolous complaints. But people who are disposed to that practice will always find ways to further their complaints, and that argument does not bear close examination. The commissioner will be able to see through malicious and frivolous complaints and get to the heart of the problem.
As has been brought out in debate on a previous Amendment, the Health Service Commissioner would have no jurisdiction over trade union matters, which would be dealt with by the staff commission. I am talking of complaints arising from the peculiar nature of the work which could perfectly properly be investigated by the commissioner if they came from another source and which the staff might feel would be blocked if they were made through the board.
The employees know what is going on, and there is value in their being able to make complaints. Some of the recent revelations of the goings-on in mental 2006 hospitals came from the staff and I am sure that the Minister would not wish to discourage unfortunate happenings being brought to light. In private schools and approved schools the staff are the only people who can raise these matters. They do so sometimes at considerable risk to their future promotion, and we are all grateful to them. We all know that the staff of the health service do a marvellous job, but the hospital and medical services are so hierarchical that protection is required for staff who give genuine information on abuses and dereliction of duty.
I hope that the Minister will accept the spirit, if not the words, of the Amendment. We have given serious thought to the idea that staff should have direct access to the commissioner, and if the Minister cannot accept the Amendment we hope that he will at least make a recommendation on these lines in another place.
§ Mr. Monro
Much as I should like to help the hon. Member for Glasgow, Woodside (Mr. Carmichael) following the sincere way in which he has spoken on the Amendment—and I know that he has given this matter a great deal of thought—I feel that we must be quite clear about the situation.
I am sure we both agree that on personnel matters, such as conditions of pay and service, it would be wrong to have access to the Health Service commissioner. We are here looking specifically at matters within the Health Service which are brought to light by employees of the board or hospital concerned. We must also accept the situation that if hospital staff find that a system in a hospital or in any part of the Health Service is not working correctly, then it is their duty to report it to their superiors and, if necessary, take it right through to the board. This would be normal business practice and I should like to think that it would happen in the Health Service. If somebody in the Health Service sees obvious failure in the system and feels that his complaint is not being given proper attention by the Health Board, it would be permissible for him to put it to the Health Commissioner.
The hon. Gentleman argued that unless the person had direct access he might himself be victimised in the future. But 2007 he would also agree that a member of the staff could hardly go direct to the Health Service commissioner and remain anonymous. The Health Service commissioner would have to go back to the Health Board and say, "Mr. X has complained about such and such a service—what are your answers to the complaint?" I do not think the person could avoid his name becoming known to the board; it would be bound to become known in the end.
We feel that, by and large, we should not put Health Service staff in a special position of having direct access to the Health Service commissioner since it would put them in a rather special position. My right hon. Friend and I want to see the best of staff relationships between employees and management and if we do not encourage in every possible way a chain of information between employees and management we will not be providing the best service we can for the patient. If an employee has a special complaint, we have a reserve power to go through the normal procedure in relation to a Health Service matter as opposed to a personnel matter.
It would be wrong to encourage any hope of an Amendment on this matter being tabled in another place. I have given the matter a great deal of thought, and I hope the hon. Gentleman will be able to withdraw the Amendment.
§ Mr. Robert Hughes
Will the hon. Gentleman at least give the assurance that nothing he is saying tonight about the special position of certain Health Service employees will be used by his right hon. Friend the Secretary of State for Social Services when the corresponding legislation on England and Wales is passed through the House? It has been suggested to me by my hon. Friend the Member for Willesden, West (Mr. Pavitt) that a lot of the pressure in England and Wales on the Parliamentary Commissioner for the Health Service arises because of disquiet about certain aspects of the mental health service. We in Scotland are privileged to have the Mental Welfare Commission and, as a result, we do not have these worries. But certainly in England and Wales the fear is that this pioneering legislation may prejudice points that hon. Members wish 2008 to raise and that they may find what is contained in this Bill being used against them.
§ 1.0 a.m.
§ Mr. Monro
I intended to mention the point about the Mental Welfare Commission having such an important and unique part to play in Scotland. But it would be wrong for me to give any assurance of such an important nature without considering carefully what has been said. However, I shall make certain that my right hon. Friend the Secretary of State for Social Services is aware of what has been said in this debate, and I am sure that he will bear it in mind when he is drafting legislation next year.
§ Amendment, by leave, withdrawn.
§ Mr. Robert Hughes
I beg to move Amendment No. 26, in page 27, line 4, at end insert:'except in so far as it is necessary for him to form a view on whether the professional person or persons concerned had put themselves in a position to make a reasonable judgment and had acted upon it'.The addition of these words is an attempt to mitigate actions which are not subject to investigation in Schedule 5. By inserting the words, we think that we shall be able to open up some of the actions which at present are not subject to investigation.
In paragraph 1 of the Schedule we find that none of the actions of medical practitioners, dental practitioners, pharmacists, ophthalmic or dispensing opticians are open to investigation if they are taken in pursuance of their contracts under Part IV of the Act of 1947. It is clear from paragraph 2 that action taken in connection with the diagnosis of illness or disease or the care or treatment of a patient would not be open to investigation if, in the opinion of the commissioner, it was taken solely in the exercise of clinical judgment. We feel that that cuts out far too wide an area of investigation.
We rehearsed this argument in Committee. We have always said we did not imagine that complaints against general practitioners and others were widespread. We quoted the figures of complaints for all the different sections of the Health Service. Those were for the year before 2009 the current report. We now have the up-to-date report. I have no intention of wearying the House with the latest figures, though I think that the Under-Secretary owes us an explanation of his views.
In Committee I pointed out that in his initial announcement on 22nd February the Secretary of State for Social Services spoke on his own behalf and that of the Secretary of State for Scotland when he said that clinical judgment would not be open to investigation. I raised the question of the discussion document put out by the Department. It seemed that there had been some back-tracking between the issuing of the document and the Secretary of State for Social Services making his announcement. One gathered from the discussion document that the commissioner would have power to investigate whether a medical practitioner had taken reasonable action and had put himself in a position to make a reasonable judgment. It was suggested in that document that the commissioner might, where necessary, have the advice of a professional adviser in making up his mind and that there might be a panel of such advisers.
It may be that it was because the discussion spilled over into a second sitting of the Committee that we did not get an adequate answer to the points we made. I do not see why the medical profession should have immunity from investigation by the commissioner. I know the Minister will say that there will still be the professional committees to consider the professional competence of a doctor, that there will be the possibility of disciplinary proceedings against a doctor, a dentist or a pharmacist and that possibly the joint professional and lay committees of the existing health executives which look into complaints by patients against general practitioners will be brought in in another form. That should not preclude the commissioner from having a responsibility to take action, however, because it may be that even after all these channels have been used by the complainant he will still feel that the whole thing has been rigged in favour of the medical profession. Indeed, he may feel that there is so much of an in-service investigation that it is an old-pals-together act.
I hope that committees never act in that way. I am sure that complaints are investigated by people with completely open minds, but the effect of bringing in the 2010 commissioner—apart from discovering the odd complaint which has not been dealt with properly—would be to bring to the whole system a feeling of openness and that everything was being properly investigated by an independent person. I hope that the Minister has looked carefully at what we said in Committee and that even at this late hour he is prepared to accept the Amendment.
This is an important Amendment. It offers protection for the individual. The clinical judgment of the general practitioner is not under scrutiny. I know that a G.P. can make an honest mistake, and in no way should be be chastised for that if there is room for doubt. The commissioner will be able to discover whether the G.P. has approached his job in the correct manner and spirit. If that is done, a lot of the remaining doubts about how things are to be handled can be removed.
§ Dr. Miller
I merely want to ask the Minister to impress upon the medical profession that it would be in the interests of doctors if complaints against them were investigated by someone like the Parliamentary Commissioner, in this case the Health Service Commissioner—someone with legal experience. There is no doubt that it would be to the benefit not only of patients but of individual members of the medical profession that any allegation made against them should be investigated, not by people who have a vested interest in the situation but by someone completely detached and objective who could form an opinion in which his own feelings and emotions were not involved. That would have mutual benefit for the patient and for the doctor. It is a matter which perhaps the medical profession, through its political representation, does not accept, but it is a matter which I believe the majority of ordinary practitioners would be prepared to accept if it were put to them. I ask the Under-Secretary to look at the matter from the point of view that not only would the Amendment do the job that it is felt should be done but it would be for the benefit also of the average general practitioner.
§ Mr. Monro
I do not hide from the House that the question of clinical judgment was one of the most difficult to solve in preparing the Health Service Commissioner Clauses. One of the objects of the discussion papers, which hon.
2011 Members found interesting and helpful, was to sift through evidence coming back from the professions after they had studied the document. It is not surprising that we used the information which came back to make alterations to Clauses here and there throughout the Bill.
I appreciate the thought which hon. Gentlemen have put into the Amendment but at the end of the day I shall have to ask them to consider withdrawing it. The Amendment seeks to confer wider powers on the commissioner in relation to matters within his jurisdiction. The discretion vested in the commissioner under Clause 45(6) is widely drawn and clearly enables him to undertake any parliamentary investigation needed to establish where a case falls outside his terms of reference. The main ground of exclusion from investigation by the commissioner—that is, clinical judgment—is worded equally widely. Schedule 5(2) states:Action taken in connection with the diagnosis of illness or disease or the care or treatment of a patient, being action which, in the opinion of the Commissioner, was taken solely in the exercise of clinical judgment…".I know that the hon. Member for Glasgow, Kelvingrove (Dr. Miller) has felt throughout the discussions on the Health Service Commissioner that the medical profession must be prepared to accept much greater responsibility for its clinical judgment than he feels it is prepared to do under the Health Service Commissioner Clauses at the moment. After careful thought we feel that we have come as near as we possibly can to defining clinical judgment. In the context of the Amendment there is concern that it would be possible for a complainer to have a trial run by complaining to the Health Service Commissioner. If he could see that his case was likely to be successful, he could then turn to the courts and possibly sue the doctor for compensation. It would seem wrong that one should have one's cake and eat it.
We went into the matter in detail in Committee. I believe we must return to the point that the Parliamentary Commissioner was never intended to act as a medical auditor, looking at a case perhaps six or 12 months later, with the advantage of hindsight and subsequent examination, and decide whether at the 2012 moment the doctor had to make a decision, perhaps under great stress and hurry, he was wrong.
If we were to change the provision in the Bill we would alter the whole basis of the statutory provisions. This I cannot do in this Bill. I am afraid that I cannot accept the Amendment.
§ Mr. Robert Hughes
I am as disappointed as I was in Committee by the Government's refusal to accept the Amendment. I accept that a discussion document which comes out in the early stages before a Bill is drafted is not meant to be the firm and final view of the Government, and if when there was such a document there was no move by the Government once they had heard the views of those concerned, I would be the first to complain. Indeed, that has been one of our complaints about the Housing (Financial Provisions) (Scotland) Bill, on which the Government have been inflexible.
We are not therefore complaining about the Government's flexibility on the question of discussions but we are disappointed that the impression has been given, if one compares the statement made by the Secretary of State for Social Services with the discussion document, that the vested interests of the medical profession have once again triumphed, as they have almost always triumphed from the early days of discussion of the National Health Service in 1946 and 1947.
When the medical profession, particularly general practitioners, has said what it feels about a topic, every Government have felt it imprudent to go against its wishes. I do not know why Governments quail before general practitioners in particular—except that all of us at times visit a doctor and perhaps are afraid of what he may do to us in the consulting room. But that is an irrational fear.
We would have been happier if the Government had agreed to widen the area of investigation by the Parliamentary Commissioner. I do not think that the Under-Secretary's argument that by taking a complaint on clinical judgment to the Parliamentary Commissioner a complainant is getting a dry run, and that if he sees the possibility of his complaint succeeding he can sue in a court of law, 2013 is really valid. Unless I have misunderstood the whole purpose of the Parliamentary Commissioner, I do not see that taking a case to him removes from the individual his rights under common law. If the Under-Secretary is saying that by raising a matter with the Parliamentary Commissioner rights in common law are destroyed, this will have to be changed.
The Minister is being inflexible about this but at this time of night a Division would not be welcome, so I have no alternative but to seek leave to withdraw the Amendment. Nevertheless I am not happy about this and I am sorry we are not discussing the matter at a time when we could have gone into it a bit further. I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.