§ 1.25 p.m.
§ Lord Dubs rose to move, That the draft order laid before the House on 7th July be approved.
§ The noble Lord said: My Lords, I beg to move that the Commissioner for Complaints (Amendment) (Northern Ireland) Order, a draft of which was laid before this House on the 7th of this month, be approved.
§ The order will amend the Commissioner for Complaints (Northern Ireland) Order 1996, and will bring Northern Ireland law in this area into line with that applying in Great Britain under the Health Service Commissioners Act 1993, as amended by the Health Service Commissioners (Amendment) Act 1996.
§ The effect of the order will be to extend the jurisdiction of the Northern Ireland Commissioner for Complaints (the ombudsman) to enable him for the first time to investigate complaints about actions taken by health professionals in the course of the care or treatment of a patient, usually described as the exercise of clinical judgment; and actions taken by GPs, dentists, etc., in connection with the provision of family health services.
§ The order will also spell out in detail the ombudsman's existing right to investigate the actions of independent providers of services, when providing services to HPSS patients or clients under arrangements made with HSS bodies.
§ The order has its origins in an independent review of NHS complaints procedures, commissioned in 1993 by the then Secretary of State for Health. This was in response to widely held concerns about the complex and unfriendly complaints systems then in place. The review was carried out by an independent committee, chaired by Professor Alan Wilson, Vice-Chancellor of Leeds University.1160
§ Following wide consultation, the Government accepted the main recommendations in the review committee's report. Those recommendations relating to the introduction of a unified complaints procedure for HSS bodies were implemented in April last year, and the order before us today would implement recommendations relating to the extension of the ombudsman's remit.
§ The order represents a valuable addition to patients' rights, and I therefore commend it to your Lordships.
§ Moved, That the draft order laid before the House on 7th July be approved.—(Lord Dubs.)
§ 1.27 p.m.
§ Lord Alderdice
My Lords, in general terms, I am supportive of the approach of the order because, as the Minister helpfully explained, there is a degree of complexity about the complaints procedure. Indeed, there is a complexity about the whole of the health service, which can be offputting for patients, in particular if they are vulnerable people often with difficulties. There is also a proliferation of organisations. One has seen the move towards the market in healthcare and the establishment of trusts and so forth. Therefore, there has been a fragmentation of the service which has made it more complex for people to make their complaints. That was part of the pressure which moved us towards this development.
However, I must express reservation about one issue. In doing so, perhaps I may indicate a personal interest because I am a medical practitioner and a psychiatrist. My anxiety relates to the introduction of the ombudsman to addressing matters of clinical judgment. I do not express reservation as a result of some anxiety that a rash of complaints will come forward based on serious problems which have not been unearthed because existing professional modes of complaint have been inadequate. While there may be one or two, I do not believe that there will be many. However, I believe that it is likely that a considerable number of complaints will come forward which are not appropriately based. In my experience, and seeing issues from both sides of the table, I can say that there is a pressure and a temptation on constituency representatives to say, "Well, I will certainly bring this to the attention of the ombudsman or to some other complaints procedure", even when they may not understand the complexities. They may have a litigious and difficult constituent who is similarly litigious and difficult when he is seen by a medical practitioner or another healthcare professional.
I believe that in understanding that, healthcare professionals will be increasingly moved towards a form of defensive medicine such as we see in other parts of the world, not least in the United States of America. They will not leave themselves unguarded or unprotected. They will say, if there is an increase in the use of this procedure, "Well, then we shall have to be particularly careful that the way we practise is to protect ourselves rather than being driven entirely and almost exclusively by a concern for what will happen in terms of the patient".
1161 I must tell your Lordships that I have seen that happening over the past number of years in the medical fraternity, nursing and other areas. It has been felt increasingly by healthcare professionals that they are, to some extent, more under attack. Regrettably, we see a situation in which other professionals—for example, lawyers—are advertising. Now that there is freedom of information, they will apply on behalf of patients who may be in need of a little remuneration, to have people's charts so that they can trawl through them in order to see whether there is anything about which a complaint could be made. Therefore, it is not even a matter of a person feeling that he has a complaint and then taking advice as to how to follow it through. He is actually being encouraged by other professionals to pick up the matter and use access to records in order to find something about which a complaint could be made.
I offer a few words of warning to noble Lords. Unfortunately, we may find ourselves drifting towards a situation of medicine which is increasing defensive and expensive. We may also find the growth of a complaints industry. In that regard, I ask the Minister to clarify how much has been set aside for the ombudsman and his office to address this. I understand that a relatively modest amount is to be set aside; namely, of the same order as that which was set aside for the office of the commissioner established to deal with the complaints of trade unionists against their trade unions in Northern Ireland—a matter of some thousands of pounds. Given the size and complexity of healthcare in Northern Ireland and the tendency—notably discovered by the Department of the Environment in regard to footpaths and such matters—to find ways to develop an industry of complaints, such modest resources may be inadequate when applied to the complex tapestry of healthcare provision. Having said that, in general terms, I support the order.
§ 1.31 p.m.
§ Lord Holme of Cheltenham
My Lords, from these Benches, we support the order. However, the point made by my noble friend is extremely important. One of the great talents of the British nation is the talent for complaint. If that is so, it has been developed to a high art form in Northern Ireland. The culture of blame is one with which the noble Lord, Lord Alderdice, is not unfamiliar.
Having said that, it is important to recognise that the area of health is one in which people sometimes have justifiable cause for complaint. Basically, this order extends the complaints procedure to health and social services. In that sense, in general, we support it.
§ 1.32 p.m.
§ Baroness Denton of Wakefield
My Lords, I too bring a supportive line from these Benches. I had a feeling that from the noble Lord, Lord Alderdice, we were hearing the extension of a debate in your Lordships' House earlier this week about the fat-cat lawyers. Those are perhaps the fat-cat kittens which are developing in Northern Ireland, and I am sure that that is not the aim of the order.
1162 However, I note that Members of Parliament must be brought into this procedure. In the longer term, I wonder whether it would be better to look at the relationship between the complainant and the ombudsman or commissioner.
I share some of the concerns expressed by the honourable Member for Belfast South in Committee in another place on the size and complexity of the order to achieve what it seeks to achieve. I found it very difficult to understand. I am sure that it covers every possible legislative need but it is certainly overwhelming.
He expressed concerns also about the confidence of the complainant in the operation of the system. A review of the problem of complaints in the health service was chaired by an outsider. But the complaints are dealt with by a Northern Ireland person with an office staffed by people who may well return to those areas against which an individual is making a complaint. I stress that I do not for one moment question the integrity and impartiality of those in that position but I do not understate the matter when I say that Northern Ireland is a small place where views are strongly held. Would it not be more suitable that that activity be administered by those who are not so closely involved with the Province? The Minister, with his colleagues, may wish to consider that view.
I have two specific matters to raise. First, how will the people be informed of the availability of this route and when will it be introduced? I know that the ombudsman is responsible for making known his availability but the Government may wish to take a more proactive role. I hasten to add that that is not in order to generate a volume of complaints but so that people know that if they are unhappy there is a route which they can take. Will the Minister confirm also that in future, the post of the commissioner will be filled in open competition? With those remarks, I support the order.
§ 1.36 p.m.
§ Lord Dubs
My Lords, I thank noble Lords who have contributed to this short debate and for the general support expressed for the order by all those who have spoken.
I deal first with the specific questions which were asked. The noble Lord, Lord Alderdice, again speaking from his enormous professional experience and background, asked about the application of the concept of clinical judgment and he expressed concern that we might reach a stage of having defensive medicine and a complaints industry. I think those were his words. From the experience of Great Britain, I am not certain that experience has been as he suggested it might be in Northern Ireland. Perhaps he believes that the situation will be different there. But taking the experience of Great Britain, I should not be quite as concerned as he is.
In another sense, may I put this point to him? Under this procedure, we have an alternative to litigation. In a sense, it depends on the outcome which the complainant expects when making the complaint. If the complainant believes that he has suffered enormous damage which can be reflected financially, then the ombudsman may not be the appropriate route to follow and the 1163 complainant will go to the courts. That has been open to him all along. Therefore, I could argue that having a system to deal with complaints which encompasses the area of clinical judgment but which will probably have different outcomes, outcomes which are likely to lead to differences in practice by some clinicians perhaps, would be preferable to the only route available to a complainant being the courts and becoming litigious. I suggest to the noble Lord that one can arrive at a different conclusion as a result of the measure before us today.
The noble Lord asked also about resources, as did other noble Lords. There will be a need for additional resources in the commissioner's office arising from the need to investigate complaints about clinical judgment and about general health services and to pay for independent clinical advice; that is for the independent clinical advice which the ombudsman will seek to deal with complaints.
Sums have been agreed based on best estimates of the effects of the changes implied by the order. Those sums will be subject to revision upwards or downwards depending on the actual workload which results from the order. But they are not cash limited. If the commissioner requires further resources, they will be made available. That is the financial scheme within which the commissioner will work.
The noble Lord, Lord Holme, talked about causes for complaint and, I believe, giving assurance to complainants. Indeed, I believe that that was broadly his point. What we hope to achieve with the measure is a simpler complaints procedure for the ordinary person to understand. The distinction between clinical judgment and maladministration is actually not a very straightforward one; sometimes there is quite an overlap between the two. We are developing a system which will be much clearer to the ordinary complainant because he or she will be told that that is not appropriate because it is clinical judgment, as has occasionally happened in the past. Therefore, we shall be able to give people a better sense of confidence in the complaints system, which I believe was also a point of concern for the noble Baroness.
The noble Baroness, Lady Denton, also asked what could be done to publicise the wider role of the ombudsman. The main onus of publicising this is on the commissioner, but, in the health and social services, the boards and trusts already publicise the health aspects of the commissioner's role and will be quite happy to assist the commissioner in promoting awareness of the increased role which is being discussed today. Attempts will also be made to facilitate patients' access to the commissioner. Therefore, when patients feel they have a complaint at the hospital or wherever it is, information should be available there, as well as any other measures that the commissioner will introduce to publicise his new remit more widely.
I should point out that there are a number of stages which it is appropriate for people to follow. Going to the ombudsman or the commissioner is the last of those stages. In the fist instance, it is proper for people to complain to the hospital or other body against which 1164 they have a grievance. That is the proper way forward. There is then a second stage of the tribunal procedure. It is only at the end of that process that it is really sensible to contact the ombudsman. It is to be hoped, therefore, that some of the complaints can be filtered out at an early stage.
There remains just one outstanding question; namely, the advertising of the commissioner's post. It has not been filled for all that long and, therefore, we are looking at what will happen at some time in the future. Although I do not believe that any final decision has been made, I look at the situation post-Nolan and it seems to me that this is the sort of post which clearly would be covered by the Nolan recommendations. However, a more specific decision has not yet been made but no doubt will be nearer the time when such a post needs to be filled in the future. I commend the order to the House.
§ On Question, Motion agreed to.