Health Service Commissioner for England (Complaint Handling) Bill
(9 years, 9 months ago)
Commons ChamberRead Hansard Text Read Debate Ministerial Extracts
Mr James Arbuthnot (North East Hampshire) (Con)
I beg to move, That the clause be read a Second time.
Mr Speaker
With this it will be convenient to discuss new clause 2—Information for the persons making the complaint—
‘The Health Service Commissioner shall make available to the complainant, at the outset of an investigation, an estimate of the period within which the investigation is likely to be completed.’
Mr Arbuthnot
May I begin by congratulating my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) on getting the Bill through Second Reading without any discussion whatsoever, then through Committee without any amendment and now on Report? On Tuesday, in the Committee deliberating on the National Health Service (Amended Duties and Powers) Bill, during which hon. Members had the misfortune of having to listen to me speak for a little longer than normal, I said that in 28 years in this House I have never had a private Member’s Bill, so my right hon. Friend’s achievement is considerable.
Mr David Nuttall (Bury North) (Con)
As one of those who had the good fortune of being able to listen to my right hon. Friend’s speech on Tuesday, I can assure him that it was no difficulty at all—it was very illuminating.
Mr Arbuthnot
Given that I spoke for four and a quarter hours, my hon. Friend is very kind to make that generous observation, but I am not sure that I share his view.
Over my political life I have often been asked what I would choose for a private Member’s Bill. In my early political life I would usually say something frightfully worthy, such as bringing in a Bill to improve the national health service. In my later political life, as my cynicism has grown, I have said that I would bring in a private Member’s Bill to abolish private Members’ Bills.
Mr David Davis (Haltemprice and Howden) (Con)
The guidance that I took in determining which Bill I would present to the House, given that I was No. 19 in the batting order, was the guidance of my old friend Eric Forth, whose ghost still haunts these proceedings. Eric believed that private Members’ Bills should be essentially uncontroversial. He thought that the private Members process existed not to put controversial Bills through, but to allow things that were fairly obvious to be done. That was my guidance in choosing this Bill in this form, and I will come back to that later.
Mr Arbuthnot
Eric Forth was a friend both of my right hon. Friend and of mine. My understanding of his view was that all legislation was a bad thing, which is why, even when he was in government, he was in opposition, and would try to stop virtually everything. That caused some difficulties to me when I was the Opposition Chief Whip.
Every year I have put my name into the private Members’ Bill ballot and have dreaded the thought that it might, one of these days, come out. Luckily, it never has and now it never will. As my right hon. Friend says, there is a dilemma for someone who chooses a private Member’s Bill as to whether to choose something that is small and uncontroversial that Eric Forth might have allowed through, or large and making a great statement but bound to fail. It is rare indeed that a private Member’s Bill makes only a small change but in that small change he or she achieves something of great importance.
I suspect that my right hon. Friend’s Bill may be just such a Bill. I congratulate him on spotting so small a change that might be needed and then on bringing forward a measure that does something about it. I have read the proceedings of the Committee, which lasted for roughly half an hour. My right hon. Friend said that he was comparatively inexperienced in these matters, since the last Bill he piloted through the House of Commons was the Intelligence Services Bill in 1994. It is interesting and unusual to think of my right hon. Friend as a comparative novice at anything, but for a novice he seems to have done pretty well. Not many of us have our own legislative programme, so I congratulate him again.
In order to explain the purpose of my amendments, I need to start by setting out the purpose of my right hon. Friend’s the Bill in a way that, I hope, will not offend him and that will do justice to its importance. The effect of his Bill, as I understand it—he will put me right if I am wrong—is to ensure that if a complaint has not been resolved within 12 months of its receipt, the health service ombudsman will send the complainant a statement explaining why there has been a delay.
Mr Nuttall
My right hon. Friend has just referred to the ombudsman. Does he agree that one of the problems with legislation is that it is very often unintelligible to people outside this House? The Bill is called the Health Service Commissioner for England (Complaint Handling) Bill. Does he not think it would be beneficial if it was referred to as the Health Service Ombudsman for England (Complaint Handling) Bill?
Mr Arbuthnot
I like my hon. Friend’s suggestion. In Committee on Tuesday, he and I discussed the value of having legislation that is comprehensible to the people whom it affects, and this Bill will affect everyone in the country. The laws we make should not be written in gobbledegook that is not comprehensible to the people who own and enforce the law and who have it enforced upon them. It would be an improvement if the legislation referred to an ombudsman, because that is what everybody calls them, so I hugely support my hon. Friend’s suggestion.
Mr David Davis
I return to the Eric Forth principle. As I have said, Eric was a friend of mine. Indeed, I successfully nominated him for a knighthood, but he died before he could receive it. I took his views seriously and he believed in simplicity in these matters. The difficulty conjured up by the suggestion made by my hon. Friend the Member for Bury North (Mr Nuttall) is that a proposed law must be enforceable according to the terms of the law it seeks to amend. This Bill seeks to amend an Act about national health service commissioners, so if it referred to an ombudsman it would run into a problem of legal conflict. My hon. Friend makes a very good point, with which I agree—Eric Forth would have, too—but we had to compromise.
Mr Arbuthnot
My riposte to my right hon. Friend is that perhaps he could have promoted a slightly bigger Bill to amend the Acts that introduced the parliamentary ombudsman in 1967 and the health service ombudsman in 1973 and combined them in a way that made them accessible to the public, which, as my hon. Friend the Member for Bury North (Mr Nuttall) has said, they currently are not. They see the words “commissioner” and “ombudsman” and wonder where the two meet.
Mr Arbuthnot
My right hon. Friend has got me there, so I will subside.
The Bill would give a complainant to the ombudsman a statement of explanation if there was a delay. That seems a very small suggestion, but the humanisation that such a statement would bring to a process that would inevitably be a little intimidating for complainants, however well the health service ombudsman does her work, may well make the difference to whether a complainant will trust the process or not. If a complaints process is not trusted by complainants, we might as well not have the complaints process in the first place.
The Bill would also require the ombudsman to include in her annual report details of how long investigations of NHS complaints have taken to be concluded, how many of those investigations have not been resolved within a 12-month period following receipt of the complaint by the ombudsman, and the action being taken with a view to concluding all investigations within a 12-month period. That process of openness would lead to an improvement of trust between those who use the NHS and have the misfortune of needing to complain about it and the ombudsman given the task of looking into such complaints. As a by-product, the Bill might also act as a further spur to the national health service commissioner to ensure that even more cases are concluded within a 12-month period. As I understand it, about 99% of the cases she takes on are concluded within a 12-month period.
My new clauses are probing amendments. I do not intend to go to the wall or to die in a ditch for them, if that is an appropriate juxtaposition of metaphors. They state that the
“Health Service Commissioner shall make available to anyone considering making a complaint, an estimate of the period within which investigations are to be completed”
and that once a complaint has been made the
“Health Service Commissioner shall make available to the complainant, at the outset of an investigation, an estimate of the period within which the investigation is likely to be completed.”
I have tabled the new clauses simply in the interests of transparency. It might be thought reasonable for people to be aware of how long they would have to wait for a response if they complained to the ombudsman.
Mr Davis
My right hon. Friend makes a very good point. In a perfect world, one would want to be able to tell every complainant to the health service ombudsman that they would get an answer within three months. However, in the case which initially led to such concerns the errors were manyfold in an area—it was sepsis, which I shall talk about on Third Reading—in which it took some time to develop an understanding of treatment and of the best approach. It is very difficult to know in advance how long it will take to resolve a problem, which may sometimes be medical as well as managerial, with a proper answer.
Mr Arbuthnot
I have to say that I find that argument extremely persuasive. However, it is reasonable for the ombudsman to give some idea of how long an investigation is expected to take. After all, it is only an estimate, not a hard and fast guarantee. I accept that the estimate may turn out to be woefully wrong—I think my right hon. Friend was referring to the Sam Morrish case, a huge tragedy that was highlighted in Committee by all parties—but I am just suggesting that it would be helpful to give an estimate. People may be put off complaining if they do not know what will happen, and they will be less frustrated if they are kept informed during an investigation.
Mr Nuttall
My right hon. Friend says that complainants will be less concerned if they are kept informed during the progress of an investigation, but on my reading of his new clause 2, there is no requirement on the commissioner to keep them informed, merely to give them an estimate of the period of the investigation at its outset.
Mr Arbuthnot
My hon. Friend has spotted a deep lacuna in my new clause, of which I am conscious. He is quite right, as I would expect of someone with his forensic skills. There is not, however, any need for legislation, in the way my hon. Friend suggests, to require the ombudsman to keep the complainant informed because, as far as I can tell, the ombudsman already does her best to keep complainants informed. In relation to the changes that the ombudsman is making in modernising the ombudsman process, which we will no doubt discuss on Third Reading, she is going out of her way to start a public consultation to ensure that the changes are as friendly to the public as possible.
Mr Davis
Eric Forth’s principle No. 4 is that laws should be minimalist: there should be the absolute minimum amount of law that there can possibly be to get the outcome one wants. In considering the Bill, I was concerned that we must not tell the ombudsman how to manage her business, as it were, particularly since the current ombudsman is doing an extremely good job of accelerating the process, dealing with more cases and dealing with them more quickly. I wondered for a while whether even this Bill was too much in terms of putting a force up behind it, but then I thought that there is not always the same ombudsman with the same energy level. The Bill will give a guarantee to the public and is therefore worth while. I was careful not to give instructions to do it in this way, that way or the other way. It is much better to leave good management to the service, but to put a public guarantee into law.
Mr Arbuthnot
It is worrying that my right hon. Friend is persuading me that I am wrong. It is very worrying, while one is on one’s feet, to be persuaded out of one’s own arguments. If he will allow me to cling on for just a few moments, I will get to the dregs of my argument.
The ombudsman might be the only champion of someone who is already vulnerable because they have been incapacitated to one extent or another by their health needs. Therefore, it would be a good idea to encourage the ombudsman to give as much information as possible to the complainant at the outset of the complaint, although my right hon. Friend is right, given his fourth or fifth Eric Forth principle on keeping laws as minimalist as possible, that we possibly should not put it into law.
As I said, 99% of complaints are completed within 12 months—that is, those that are taken on by the ombudsman. We will have to come back on Third Reading to whether the ombudsman takes on enough of the complaints that are made to them, because that issue arose in the evidence sessions of the inquiry of the Public Administration Committee into the ombudsman. If my new clauses were accepted and the ombudsman had to make an estimate of how long it would take, it is quite possible that they would simply have to tick a box to say that it would take less than 12 months. Therefore, the new clauses might, as my right hon. Friend might say, add very little but a formality. As I have said, I do not think that this reflects the way in which the health service commissioner operates. If there is an issue, she does as much as she can to keep people informed about what is happening.
The new clauses are probing amendments and, as I say, I will not die in the ditch for them. However, I look forward to hearing the views of my right hon. Friend the Member for Haltemprice and Howden, my hon. Friend the Minister and the Opposition spokesman about this minor attempt to be helpful.
Luciana Berger (Liverpool, Wavertree) (Lab/Co-op)
I will give a brief response on the two proposals of the right hon. Member for North East Hampshire (Mr Arbuthnot) in new clauses 1 and 2. On Third Reading we will perhaps talk at greater length about the merits of the Bill and why it is important that we are here today. I acknowledge that these are intended to be probing amendments to provoke discussion and debate.
New clause 2 is important. We know from many of our constituents who are going through this process that it often comes at a difficult time. Any more information that they can receive about how long they should expect to wait would be helpful. We are all familiar with the card that the ombudsman already provides to us on receipt of our applications to them, so any further information that we could provide to our constituents about how long they should expect to wait would be helpful.
I see no problem with new clause 2, which seeks to provide a complainant, at the outset of an investigation, with
“an estimate of the period within which the investigation is likely to be completed.”
The key point is that it is an estimate. My only concern, although I acknowledge that the overwhelming majority of cases are completed within a year, is that we must manage the expectations of anyone who submits a complaint to the ombudsman. I reiterate that cases often come at a difficult time for people, and the concern is about complainants having to wait for months beyond the time set out by the ombudsman.
We will talk more on Third Reading about why a complaint might be brought, but we often support constituents at a time when they have had a loss or gone through a difficult medical procedure, and we know that it is important to manage expectations. Anything that we can do to provide assurance will be positive, but I do not want any period that the health service commissioner sets out to give people a false sense of security that they will receive a response within a certain time, when it could be many months after that.
I look forward to the Minister’s response, but I do not think there is much to take issue with in new clause 2 if the right hon. Member for North East Hampshire decides to press it to a Division. As I said, my only concern is about the broader provision of information to the public. I would not want to place on the health service commissioner too onerous a duty to provide a wide audience with expectations of when complaints might be responded to. We know from the commissioner that there is already an expectation that complaints will be responded to within 12 months, which is helpful, but new clause 2 would help to give people who are bringing a complaint some expectation of when it might be responded to.
Mr Nuttall
It is always a pleasure to follow the shadow Minister, whose remarks were pithy and straight to the point. I will try to be equally pithy in dealing with these short new clauses. I am grateful to my right hon. Friend the Member for North East Hampshire (Mr Arbuthnot) for tabling them, because they give us an opportunity to consider whether it is appropriate to include in the Bill a requirement for information to be provided to the public in general, and a complainant in particular.
New clause 1 states:
“The Health Service Commissioner shall make available to anyone considering making a complaint, an estimate of the period within which investigations are to be completed.”
Frankly, I wonder whether there is any need for the new clause. I do not want to pour cold water on my right hon. Friend’s attempts to improve the Bill, which I know are well intended, but I wonder whether he is aware of any occasion when someone has approached the commissioner and said, “I am thinking of making a complaint. Can you tell me how long you think it might be?”, and the commissioner has said, “I’m sorry, I can’t tell you that. We’re not going to tell you.” If there are a lot of people in that position, I agree that we need to address it in legislation, but I have certainly never had anybody approach me and say, “I was thinking of making a complaint, but they won’t tell me how long it will take.” I am not sure that there is a particular problem that we need to address, but I am sure that my right hon. Friend will enlighten us about that.
Mr Arbuthnot
I have to say that I have received no information from anyone who has had such an experience. My suspicion is that if one went to the ombudsman and asked, “How long is this likely to take?”, the ombudsman would say, “If you look at our last report, you will see that 99% of our cases were concluded within a year, so you can expect something roughly like that.” New clause 1 is merely an attempt at transparency.
Mr Nuttall
I am grateful to my right hon. Friend for that intervention, which leads me directly on to my second point. I suspect that if the commissioner is approached by a member of the public, or indeed by a prospective complainant who has it more immediately in mind to make a complaint, all that will happen is that the commissioner will say, “Without a lot more information about the nature of your complaint, I can do no more than look at our history of dealing with complaints. If you look in the annual report or consult our website, you will see that 99% of cases are concluded within a year; to put it another way, there is one chance in 100 that your complaint may still be outstanding after one year.” Of course, that does not give the whole picture, because the ombudsman’s annual report states that it was able to conclude 67% of cases within one month. Therefore, two out of three cases are dealt with relatively speedily, which is probably as good as one would expect to find anywhere. Few complainants would expect their complaint to be dealt with faster than that.
Mr Arbuthnot
My hon. Friend is right to say that there is a one-in-100 chance of a complaint taking more than a year to be dealt with, but I should perhaps have said that there are only about three chances in 100 of a complaint being dealt with at all, because so many of them are outside the scope of what the ombudsman can look into in the first place.
Mr Nuttall
That is right, and it prompts a question about whether some advantage is to be gained by the commissioner providing more help at the initial stages to try to signpost people. Indeed, the annual report states that the ombudsman receives about 40,000 contacts a year, including queries about where and how to complain about public and non-public services. Of those 40,000 contacts, 27,566 were inquiries for the commissioner, which demonstrates that many members of the public will quite innocently contact the commissioner about matters that do not fall within her responsibilities.
Mr Christopher Chope (Christchurch) (Con)
Does that show that new clause 1 is ill conceived? It states that before people make a complaint they must get an estimate of how long it is likely to take to resolve it. However, the bigger issue for people before they make a complaint is what the chances are of it being accepted for investigation.
Mr Nuttall
My hon. Friend makes a good point. People may assume that they have simply to make a complaint for it to be followed up, but as statistics from the commissioner’s report show, that is not the case. Many complainants would presumably like someone to deal with their complaint, but are disappointed at the outset before they have even got going, and are told, “I’m sorry; you’ve come to the wrong person.” It may be that there is nobody to deal with that complaint, and the complainant is sent off to look elsewhere.
I have one further point on the detail of new clause 1. If the commissioner was expected to make a more accurate assessment of the time within which the complaint is likely to be completed, she would have to find out much more detail about the nature of the complaint. That would obviously entail more work for her and her staff. It is the law of unintended consequences: we may find that imposing more obligations and burdens on the staff of the ombudsman’s office, in an attempt to be helpful, extends the length of time it takes for a complaint to be resolved, because staff will be engaged in assessing how long it would take to deal with a new complaint, rather than getting on with dealing with complaints. That is a problem.
I accept that all these matters could be dealt with by providing extra resources. We have not really addressed that point so far this morning; it is the elephant in the room. I do not think this is outside the scope of the new clause. If we impose, or even just set out, an expectation on the commissioner to follow this provision, there will be implications for the deployment of resources. The commissioner could rightly say, “Well, it is all very well expecting me to give an estimate to every member of the public who approaches my office of how long their case will take, but where are the extra resources?” That would be a legitimate question to ask. Otherwise, the commissioner is likely to say that complaints might take about a year, which would probably not be very helpful to most prospective complainants.
New clause 2 relates to complainants who, perhaps having looked at the website, have decided that regardless of the length of time it will take, they will make a complaint. The new clause states:
“The Health Service Commissioner shall make available to the complainant, at the outset of an investigation, an estimate of the period within which the investigation is likely to be completed.”
That implies that initial details have already been taken. I would expect this to be rather more specific advice than that provided to a member of the public. This is someone who has lodged a specific complaint, which the commissioner has accepted. It is a small point, and I have not bothered tabling an amendment to new clause 2, but I would prefer it to read, “The health service commissioner shall give the complainant, within 14 days of the outset of an investigation, an estimate of the period in which the investigation is likely to be completed.” I would have tried to tighten it up a little bit, but I nevertheless accept that that is the wording put forward by my right hon. Friend.
I raised a point about providing updates. My right hon. Friend’s response was that there was no need to legislate on that, because he felt that the commissioner was providing updates anyway. If she is, I could use the same argument about new clauses 1 and 2. If we have no evidence—no one has been able to provide any—that this is a problem, either for members of the public, in respect of new clause 1, or for specific complainants, in respect of new clause 2, I have to question whether these new clauses are required at all. On balance—I accept that it is a fine balance—I do not think that they are required, and should he press either new clause to a Division, I would vote against it, but only because, as he has said himself about legislation to provide updates, there is no need for legislation to require the commissioner to provide this information to the public or a specific complainant.
Mr David Davis
My hon. Friend the Member for Bury North (Mr Nuttall) has presaged Eric Forth’s principle No. 5, also known as the law of unintended consequences, for which reason I hope that my right hon. Friend the Member for North East Hampshire (Mr Arbuthnot) will treat his new clauses as probing rather than substantive. One of the risks has already been talked about—that of imposing more work on and therefore slowing down the process of the ombudsman—but there is another one that my right hon. Friend and I, having been in the House for some time, will be used to: where legislation sets prices, targets or whatever, the minimum can become the maximum and the maximum can become the minimum. If an ombudsman’s staff member has to provide a prediction of the likely time it will take to resolve a complaint, not only are they likely to be cautious and, as my hon. Friend said, tick “12 months”, but they might say, “Well, until 12 months comes up, maybe I shouldn’t issue the report at all, in case I discover something I didn’t think of before.” It could thus have exactly the opposite consequence to that which my right hon. Friend intends.
Mr Arbuthnot
Would my right hon. Friend like to reflect on the strange coincidence of the number of Eric Forth’s laws we are looking at and the fact that he hated laws of all sorts?
Mr Davis
Yes, there are laws of nature and there are laws of man, and in Eric Forth’s case, there are forces of nature which sometimes are the forces of man. It is a wonderful paradox, but given that it was my right hon. Friend who provoked me to conjure the five laws, I blame him, not myself.
My right hon. Friend made a very thoughtful speech, and perhaps met Eric Forth’s sixth law, which is that all this has to be tested—that is the point of this House, and it was Eric Forth, more than anybody, who insisted that we did not just shovel through, sausage-like, a set of laws because the Administration or some pressure group wanted them, but that we tested them, and my hon. Friend the Member for Bury North has been doing that this morning.
This reform is likely to be the first of a number picked up by the Executive, not by us. The Public Administration Committee is looking at this, the Department of Health is looking at it, the ombudsman’s office itself is looking at it, and the Cabinet Office is also looking at the issues raised by my right hon. Friend and my hon. Friend. The Executive will be aiming to minimise the number of times complaints are turned down out of hand; to minimise the number of times people are told, “You’ve got the wrong department. Complain to somebody else”; and to minimise the constraints on the ombudsman’s office that might not permit it to intervene; and they will also be aiming to deal with the resource issue. It seems to me that we do not need to solve those problems. It is for the Executive to do so properly in Executive time, with debate going on across the Front-Bench teams. It is for them to deal with that; we are dealing with a simple problem here.
Mr Chope
When my right hon. Friend discussed the Bill in Committee, he contemplated the prospect of introducing amendments at this stage to reflect the outcome of the deliberations taking place in government and elsewhere. In the light of the Government’s failure to deliver a timely response, how much confidence does he have that they have the will to do this?
Mr Davis
A lot of confidence. I do not wish to pre-empt the Government’s forthcoming announcements, but neither do I want to push them into doing anything ill thought through. If the law of unintended consequences applies to anything, it applies to Government legislation—more than anything else. I am confident that this will happen, and in a way that will command support across the House. As my hon. Friend knows, it may be dangerous to make a prediction, but I think there will be agreement. Whatever happens in the general election, I believe these reforms are coming.
The Parliamentary Under-Secretary of State for Health (Jane Ellison)
It is a pleasure to respond to such a thoughtful debate on new clauses 1 and 2, which were tabled by my right hon. Friend the Member for North East Hampshire (Mr Arbuthnot). Given that this is my first response from the Dispatch Box on the Bill today, let me provide a little context before moving on to the specifics of the new clauses.
Clearly, when someone believes that the services offered by the NHS have fallen below an acceptable standard, it is absolutely right that the complaint be investigated properly and efficiently. The Government are committed to putting patients first and improving the experience of making a complaint about the NHS. As part of that, we believe that an effective health service ombudsman is critical to achieving the effective complaints service that patients expect and deserve. This is very much part of our transparency agenda.
The Parliamentary and Health Service Ombudsman carries out independent investigations of unfair, improper or poor service by United Kingdom Government Departments and their agencies and the NHS in England. The health service ombudsman is the second independent stage of the NHS complaints arrangements, dealing with cases not resolved at local level. I think we will all have had such dealings in our constituency work.
The Parliamentary and Health Service Ombudsman, Dame Julie Mellor, had done a good job in challenging circumstances to make her office more transparent and accountable, something to which right hon. and hon. Members have alluded. She has gone about transforming the way in which her office works. She has greatly increased the number of complaints investigated by her office, and complaints are generally reviewed and assessed with excellent judgment and in a timely fashion.
Certain cases, however, suggest that the ombudsman might benefit from legislative reinforcement in working towards further improvement. As the shadow Minister captured in her remarks, any delay in investigating a complaint adds unnecessary distress at what is almost certainly a very difficult moment in an individual or a family’s life. The Government are keen to reduce any delay in investigating cases to reduce the pain of all those involved. Complaints about the NHS of course raise personal or sensitive issues. The person making the complaint, whether it be the patient, the carer or a representative, will be understandably keen to know the outcome as quickly as is reasonably possible.
These two new clauses raise some important points, albeit finely balanced ones. We have had a very good debate this morning exploring where the balance lies. New clause 1 concerns transparency. As I have said, complaints about the NHS may involve the raising of personal or sensitive issues. Whether the complainant is a patient or a carer representative, that person will be keen to know how long the process might take, as we know from our constituency case loads. One of the first questions that a person might ask is, “How long is this likely to take?” That applies both to complaints that are handled by the NHS itself and to companies that are referred to the health service ombudsman in the second, independent stage of the process.
The Government are actively encouraging the NHS to be more open and receptive to complaints, including those made by our constituents. We understand the sentiment behind new clause 1, but we do not feel able to support it. The new clause would require the ombudsman to produce a general estimate of the time it is likely to take for her office to investigate a complaint. My hon. Friend the Member for Bury North (Mr Nuttall)—unsurprisingly—made an acute point when he referred to the danger that the time taken to assess the time likely to be taken might actually add to the time taken. Such a tragic irony would not serve any of our constituents.
A wide range of cases are referred to the ombudsman and subsequently investigated. Some are relatively simple, but others are more complex and take significantly longer to investigate. There are also cases in which people do not know what is not currently knowable. That is the whole point of an investigation. I agree with my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) that, in particularly complex or sensitive cases, it is important not to give an incorrect estimate to someone who is thinking of making a complaint, especially when it turns out to be an underestimate. I am sure we can all think of other contexts in which we give a constituent an estimate of the time that it might typically take to provide that constituent with an answer, the anxious constituent comes back to us within the estimated period, and from that moment a clock starts ticking. During the subsequent period, constituents may feel that they have been let down—or, worse still, may suspect that something in “the system” is preventing them from getting an answer—and their anxiety may increase as a result.
As Members will know from their constituency correspondence, it is not helpful to add unnecessarily to the distress associated with any perceived delay in the investigation of a complaint about any public service, and that applies particularly to complaints about the NHS that may relate to personal, sensitive or possibly even tragic experiences. Complainants’ distress will be exacerbated if a general estimate of the time taken to conclude an investigation does not accurately reflect the time taken when it turns out that there is an unknown—and, at the time when the complaint was lodged, unknowable—complexity to the case.
Like my right hon. Friend the Member for Haltemprice and Howden, I am equally concerned about an estimate based on the longest period within which an investigation might be expected to be completed. I cannot help feeling that there might be a tendency towards officialdom—a tendency to err on the side of caution, and, in order not to be too boxed in by an inaccurate estimate, to opt for the upper end of the time spectrum. Other Members have drawn attention to the need and the desire for transparency, but it would be terrible if as a result of that undue caution—unwarranted, perhaps, in most cases—people who were at their lowest ebb, already feeling unresilient to things that were happening in their lives, were to say to themselves, “I don’t think I can take more than 12 months of this, so I will walk away and not make a complaint.” It would be awful if people did not feel that the system was there to deal with their complaints and worries.
As I have said, the complexity of some cases might become apparent only once an investigation had begun. A complainant might be unintentionally misled, expect an earlier response, and, if that response did not come when it was expected, begin to fear that something untoward was happening, that the wheels were grinding too slowly, or that someone did not care about the complaint. Although none of those assumptions might be true, the complainant’s faith in the system might nevertheless be undermined.
In summary, new clause 1 raises a valid point about transparency and it is good that the House has explored that matter this morning, but I do not feel able to support it, for the reasons that I have mentioned and that the right hon. Member for North East Hampshire also referred to when he explained that the purpose of the new clause was to probe. I hope that he will agree with the points that I and others have raised, and that he will withdraw new clause 1 in due course.
New clause 2 raises the question of good practice in the handling of a complaint, and it has been made clear in other contributions today that the whole House supports that principle. It is of course good practice for any person making a complaint to be given, as soon as practicable, an indication of how long it will take to complete the investigation into the complaint. However, we do not feel able to support the new clause for two reasons, both of which I think my right hon. Friend the Member for North East Hampshire began to arrive at during his speech.
First, the new clause, as drafted, would require the estimate of the period likely to be taken to investigate the complaint to be given to the person at the time at which the investigation began, but there will be cases whose complexity is not apparent at that point. In my experience as a constituency Member—I am sure colleagues have had the same experience—something that seems straightforward at the outset can turn out not to be, particularly when different points of view become involved. That is also likely to happen in NHS investigations such as these. It is particularly important not to give the person making the complaint an estimate that turns out to be too short, for the reasons that I have outlined.
The second reason could be said to relate to some of the Forth principles that we have been hearing about this morning. Good practice involves keeping the person making the complaint updated on progress throughout the investigation, and that is something that any ombudsman would take seriously. There is no evidence to show that Dame Julie and her team would not naturally seek to do that during the course of their work. That would include keeping someone informed of any shift in the estimate of the time likely to be taken to complete the investigation. The proposed new clause makes no reference to that continuing duty.
New clause 2 raises an important point about good practice, but we feel unable to support it because it focuses on giving an estimated time only at the outset of the investigation and not throughout the process, although we might explore this question further in other amendments. I thank my right hon. Friend for probing and giving the House a chance to explore these important issues, but I hope he will agree with the arguments that I and others have put forward, and to which he alluded in his balanced contribution, and that he will not press new clause 2 to a vote.
Mr Arbuthnot
After hearing valuable comments from both sides of the House, I have come to the conclusion that my new clauses would not be helpful and I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 3
Statutory duty of the Health Service Ombudsman
‘It shall be a statutory duty of the Health Service Ombudsman to resolve any complaints within twelve months of the date when the complaint was received.’—(Mr Chope.)
Brought up, and read the First time.
Madam Deputy Speaker (Dame Dawn Primarolo)
With this it will be convenient to discuss the following:
Amendment 3, in clause 1, page 1, line 7, after ‘Commissioner’ insert—
‘before the end of that period’.
Amendment 4, page 1, line 8, at end insert—
‘together with an estimate of the target date for completion of the investigation.’
Amendment 1, page 1, line 8, at end insert—
‘(b) The Commissioner shall subsequently keep the complainant informed, as far as reasonably practicable, as to the progress of the investigation.’
Amendment 5, page 1, line 8, at end insert—
‘( ) If the reason for the delay specified in Section 2HA is lack of financial resources it shall be the duty of the Commissioner to set out the action which is being taken to remedy that lack of financial resource’.
Amendment 2, page 1, line 15, leave out ‘, and’ and insert—
‘(ba) the reasons for each of those delays, and’.
Mr Chope
The new clause would simplify the Bill enormously. It would require the health service ombudsman to resolve any complaint within 12 months of the date on which it was received. As we are paying tribute to my late friend Eric Forth, may I say that the new clause would have commended itself enormously to dear Eric, because it puts on the tin what people say we want to put on the tin. With the greatest of respect to my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), I think he has been timid in his Bill. We know that 99% of these cases are dealt with within one year. The new clause would require that 100% of them be dealt with within one year, and there would also be a sanction, because a breach of a statutory duty can be justiciable. That would concentrate minds. If it looked as though a complaint was being dealt with slowly, the health service ombudsman would be able to say, “You’ve got to get a move on because we’ve got a statutory duty to resolve this within one year.”
Stephen Pound (Ealing North) (Lab)
I am not sure whether the hon. Gentleman heard the comments by the Minister on the previous group of amendments but I think she addressed that point precisely. There is a complexity within the system that cannot be anticipated, and it would artificially fetter the discretion of the commissioner if an arbitrary time limit were put in place. Does he not agree that there are occasions when the complexity is such that we simply cannot fix the rigid metallic corset of a time limit on it without diminishing the value of the investigation?
Mr Chope
With the greatest of respect to the hon. Gentleman, I do not accept that, which is why I tabled the new clause. As he says, the Minister was addressing new clauses 1 and 2, and I would not at this stage anticipate her response to the debate we are now having on new clause 3. If a statutory duty is in place, minds will be concentrated. That means that the ombudsman would, for example, be able to explain to a complainant who it was who was not providing the information that was necessary in a timely fashion and say, “If we don’t get a move on, your complaint will be time-barred because we will dismiss it on the basis that we have a lack of evidence.”
Jacob Rees-Mogg (North East Somerset) (Con)
Following on from the point made by the hon. Member for Ealing North (Stephen Pound), may I say that I am not entirely sure that corsets are normally metallic—I believe they are generally made of whalebone? Leaving that aside, I wonder whether my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) ought to be introducing a shorter time limit, because we all know that work expands to fill the time available. [Interruption.] Parkinson’s law, indeed. As soon as a 12-month time limit is introduced, that is the time that will be taken. If 95% of complaints are being dealt with within six months, six months would seem to be quite a good limit.
Mr Chope
I agree with my hon. Friend. It is a pity that he did not put down an amendment to my new clause to replace the limit of 12 months with one of six months. We know that the Bills that we debate on Fridays involve an iterative process. If the new clause were accepted today by my right hon. Friend, we would start off with a 12-month limit, which might in due course move to six months. That deadline, which will have the effect of concentrating minds, makes the measure legally meaningful, whereas, at the moment, everything in the Bill is legally meaningless. The Bill is, as someone has said in relation to the draft clauses of the Scotland Bill, “legally vacuous”.
Mr Arbuthnot
How does my hon. Friend deal with the problem that there might be some issues that are outside the control of the ombudsman? For example, the ombudsman might be hoping for a response from a health provider that he is simply not getting. How would the ombudsman then obey the statutory duty that we would be applying?
Mr Chope
Unlike quite a lot of organisations, the ombudsman is accountable to this House. If the ombudsman were experiencing the difficulty to which my right hon. Friend refers, I would expect the ombudsman, the chief executive or chairman to contact my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) and say that they wished the Public Administration Committee to look into the matter and put pressure on the recalcitrant Department. In a sense, my right hon. Friend is saying that, because we may have customers—if that is the right expression—who are minded to delay things, we should facilitate enabling them to delay things beyond a year. We need to focus on who the real customer is. The customer is the person who has made a complaint, and whose complaint has been accepted for investigation by the ombudsman. In my view, they are entitled to have a decision on that complaint within 12 months, which is why I put in this statutory duty.
Jacob Rees-Mogg
It occurs to me that, for once, my right hon. Friend the Member for North East Hampshire (Mr Arbuthnot) is wrong. If a public body failed to respond to the ombudsman, it should be found against and that would be quite a penalty and an incentive not to procrastinate.
Mr Chope
Again, my hon. Friend makes a first-class point. I hope that, when the Minister responds to this short debate, she will support the line that is being taken. We need to ensure that there is no scope for statutory bodies to avoid their responsibilities to deliver and that we facilitate the ombudsman to reach a result within 12 months of a complaint being made.
At the moment, the ombudsman is dealing with about 4,000 complaints a year, some 3,000 of which are related to health. The cost of those complaints to the taxpayer is about £4,000 a time. As the taxpayer is investing that amount of money, a reasonable return on that would be to say that those complaints should be dealt with in a maximum period of one year. If we pass new clause 3 and include it in the Bill, we will have a useful piece of legislation, instead of an empty vessel—although even an empty vessel with the name of my right hon. Friend the Member for Haltemprice and Howden on it will be cherished by many people, especially his constituents.
Amendment 3 is more specific. It will require the commissioner, in fulfilling the obligations set out in clause 1, to explain the delay before the end of the 12-month period, rather than after it. At the moment, there is a lacuna here—perhaps it is a deliberate one—to ensure that the minimum pressure is applied, which will show that we are just engaged in gesture politics. I hope that that is not correct. As it stands, clause 1(2) says:
“Where the Commissioner has not concluded an investigation before the end of the 12-month period…the Commissioner must send a statement explaining the reason for the delay to the person who made the complaint.”
But it does not say when the commissioner should send that statement. Unless there is a requirement on the timing of that statement, the measure is completely meaningless. It may be that that statement will be sent at the same time as the ultimate decision is made. In an effort to make the Bill do what my right hon. Friend wants it to do, which is to put pressure on the health service commissioner to deal with complaints in a timely fashion, I am suggesting a modest amendment.
Amendment 4 is on the same theme. When that statement is sent, it would not just explain the reason for the delay, but contain an estimate of the target date for completion of the investigation. I accept that, in itself, that would not be much use, because if there is another target date—it could be in another year—there may still be no remedy for the complainant. At least, though, it would force the ombudsman service to apply its mind to how much longer it thought it was reasonable for the investigation of the complaint to take.
Amendment 5 brings us into a slightly different territory. I suspect that a main reason for the delay in dealing with these complaints is a lack of resource. The amendment would add to clause 1 the words:
“If the reason for the delay specified in Section 2HA is lack of financial resources it shall be the duty of the Commissioner to set out the action which is being taken to remedy that lack of financial resource.”
Again, if the delay is due to financial reasons, it is surely important that the world outside, and particularly the complainant, should know about that so that they can make the necessary complaints. It is also important that the ombudsman is able to say, “Well, because of a lack of financial resources, I am not able to deal with these cases as quickly as I would have wished. Therefore, I am asking Parliament for more money to help us meet our case load.”
There is a £15 million budget for this exercise. Each case currently costs some £4,000 on average. The average compensation payment that was paid out in 628 cases amounts to less than £1,000. I am not sure that anyone coming from another planet and looking at this system would say that it is financially well focused. The average cost of dealing with a complaint is over £4,000. The average amount paid to a successful complainant is just less than £1,000. That shows that there is a potential problem in relation to the funding of the ombudsman service. That may be exacerbated by the ombudsman’s decision to take on more complaints for investigation by “lowering the threshold” for investigating such complaints. As the annual report makes clear, the consequence of that is an increase in the number of complaints being investigated, only a reduced proportion of which is being concluded in favour of the complainant. Expectations among the complainants are being raised, but they are not being delivered on by the ombudsman because a lot more cases are being taken on which probably should not have been taken on in the first place. The report states that because the ombudsman is
“taking on many more investigations than before, the proportion of investigations…upheld or partly upheld has inevitably declined”.
I think that the expression “inevitably declined” is a bit of an underestimate, because it has declined from 86% to 42%, which is a dramatic reduction in one year.
Mr Arbuthnot
Might one not read that in a positive way by saying that if the complaints are found not to have been justified, that suggests that the national health service is doing a pretty good job?
Mr Chope
I do not go along with that, I am afraid. It is rather like saying that we should encourage the maximum number of complaints against something, engaging bureaucracy and taxpayer expenditure to deal with the complaints, to give some perverse satisfaction to the people who want to say that the Government service, in this case the health service, is doing a good job. If we want to measure consumer satisfaction with public services, there is a much more direct way of doing it than looking at how many complaints against their services have been made and rejected.
By way of an aside, one difficulty with the ombudsman service is that it cannot take on complaints from public sector organisations. In my constituency, for example, a head teacher of a school that was unfairly done down by Ofsted was told—or it was implied—that he could complain to the ombudsman service, but the ombudsman service deemed his complaint to be outside its scope. Although he is an individual, as he is the head of a school, Ferndown upper school, the complaint is regarded as coming from a public organisation and therefore does not come within the scope of the ombudsman’s rules. I would prefer to see the scope of the ombudsman to investigate issues widened, while keeping a focus on complaints that are prima facie likely to be well founded, to going down the road of saying that we should have many more complaints and that when we reject those complaints it means that the public services are doing very well. That is where I would disagree with the ombudsman service’s strategy, which is to try to maximise the number of complaints.
When people make complaints, it often involves quite an effort on their part and they normally make them on the basis that they expect a positive result. They do not make them hoping that their complaint will be rejected, thereby endorsing the national health service, local government organisation or other body for performing in a way that did not result in the complaint against them being justified. The best organisations are organisations that have no complaints against them and I should have thought that that was what we should be aiming for—a health service in which there were no complaints, or in which all the complaints were dealt with long before they came before the ombudsman.
Those are my amendments. I shall leave my right hon. Friend the Member for North East Hampshire (Mr Arbuthnot) to address his amendments 1 and 2. If some of these amendments were accepted, I think the Bill might have some worth and value.
Mr Arbuthnot
My hon. Friend the Member for Christchurch (Mr Chope) suggests that I might like to address amendments 1 and 2. During the last debate, my hon. Friend the Member for Bury North (Mr Nuttall) pointed out that I was not suggesting that the health service ombudsman should keep the complainants properly informed and I said that I was persuaded that it was not actually necessary to do so. What I should have said was that I had proposed an amendment to do so in the next group of amendments, but during the course of that debate I persuaded myself out of the value of amendments 1 and 2 so I think it would be best for me simply to sit down and not move them. What my hon. Friend the Minister and my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) said in answer to that debate satisfied me that more detailed legislation for the ombudsman, apart from the extent to which my right hon. Friend wishes to change the law, is probably not helpful.
In answer to my hon. Friend the Member for Christchurch, I do not agree with the rather rigid approach that his new clause 3 might introduce. Inevitably, there will be some complaints that are so complicated and in which so many people are involved in answering the issues that it would be a bad idea to place on to the ombudsman a duty that, with the best will in the world, they might simply not be able to fulfil. During the course of the morning I have been looking for a quotation from Idi Amin, referring to someone who had displeased him. He said, “When we catch him, he will be executed. He will have a trial, of course, but by trial I do not mean one of those things that goes on all day.” I think that that is the approach favoured by my hon. Friend in the new clause. I hope that he will forgive me if I do not support his new clause and fail to move my amendments.
Mr Nuttall
I do not intend to detain the House for long on this group of amendments. Suffice it to say that I think there is merit in new clause 3, to the extent that it concentrates the mind of the ombudsman. At the moment, there is simply a requirement to report and that is the end of it. If nothing seems to be done, it just carries on. My concern is that the whole object of the Bill is to stop the situation that occurred in the case that led to its introduction, in which an investigation carried on for the best part of two and half years. As I read the Bill, it seems to me that there would be nothing to stop that happening again. A case could be reported as being outstanding in the annual report at the end of year one, and at the end of year two it could still be outstanding and nobody other than the complainant and the ombudsman’s staff would know anything about it.
Amendment 3 places a requirement on the commissioner to notify the complainant before the end of the period and again that seems to me to be eminently reasonable. Given that the purpose of the Bill is to try to get things dealt with within 12 months, it seems sensible that if it is apparent to the commissioner that that will not be the case, they should inform the complainant before the end of the period. Otherwise, quite legitimately, the complainant will expect the result at the end of those 12 months if they have not heard anything. It is pretty sensible to expect that. Whether that would happen anyway remains to be seen.
Amendment 4 would require the commissioner to provide at the same time an estimate of the target date for completing the investigation, which seems very sensible. The commissioner would say, “Look, we’ve not quite managed to do it in 12 months, but we certainly will in another three.” I see no reason why that should not be set out in the Bill.
I am pleased that my right hon. Friend the Member for North East Hampshire (Mr Arbuthnot) decided not to proceed with amendment 1, which relates to keeping complainants informed, as we dealt with that in the previous group. Everyone agreed that that was not a matter for legislation but should happen anyway as a matter of good practice.
I am rather less happy that my right hon. Friend has decided not to proceed with amendment 2, which would insert after subsection (4A)(b) the words
“the reasons for each of those delays”.
The general report, as set out in subsection (4)(a), should include details of how long investigations concluded in the year to which the report relates took to be concluded and how many of them took more than 12 months. That means giving a stark figure, for example saying, “We had 30 investigations outstanding at the end of the year.” It seems sensible also to require the reasons to be included. That would allow us to drill down and find out exactly what is causing the delays.
That leads me neatly to amendment 5, which stands in the name of my hon. Friend the Member for Christchurch (Mr Chope). It would insert the following provision:
“If the reason for the delay specified in Section 2HA is lack of financial resources it shall be the duty of the Commissioner to set out the action which is being taken to remedy that lack of financial resource.”
I am reluctant to support that. In my humble opinion, it is almost certain that any public official will reach the conclusion that what they really need to make their job easier and speed up the service they provide to the public is more resources. Unless we expect them to start having jumble sales and raffles—we have all tried using our own resources in that way to raise more funds—really the only thing they can do is come to Parliament and—
Jacob Rees-Mogg
My hon. Friend makes an absolutely brilliant and incisive point, because has not the whole lesson of the past five years been that public services have been able to deliver more with less? That should also be true of ombudsmen, and therefore the amendment is otiose.
Mr Nuttall
I am grateful to my hon. Friend. That has indeed been the lesson of the past five years, and we have seen some sparkling examples of people in the public sector doing more with less—our police service, for example. The same is true of the ombudsman. They have said that they have lowered the threshold and changed the way they work in order to try to meet demand so that fewer inquiries from the public are turned away.
Jacob Rees-Mogg
It occurs to me that that allows me to say that that is all thanks to our long-term economic plan—the first time I have managed to get those words into Hansard.
Mr Nuttall
My hon. Friend has achieved his wish.
I think that what is set out in amendment 5 would fall into a set pattern, with the commissioner saying every year, “Well, if you gave us a bit more money, we’d have a few more staff and things would get better.”
Mr Chope
With the greatest respect, I think that my hon. Friend misunderstands the amendment. The idea is to increase transparency so that rather than the commissioner being able to complain sotto voce that this is all because they do not have enough money, that would have to be brought into the open, and then the very points that he and my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) have been making about the ability of many public sector organisations to get a lot more bang for their buck could be exposed to public debate.
Mr Nuttall
I am grateful to my hon. Friend for that clarification. He suggests that the amendment is purely about transparency, which means it has more merit than I had accorded it.
Mr David Davis
Following that point from my hon. Friend the Member for Christchurch (Mr Chope), I think there is a risk that the amendment would transform the role of the Public Administration Committee, which currently provides oversight and acts as the guardian of ombudsmen, turning it into a champion for more money. I think that would be quite dangerous. I do not want to see the Committee go from being a regulator, comptroller and holder-to-account to a champion for more money.
Mr Nuttall
I am grateful to my right hon. Friend for that point, which I suspect adds weight to my opposition to amendment 5. I appreciate what my hon. Friend the Member for Christchurch has said about transparency, but I suspect that in press releases and in evidence given before the Committee the ombudsman would be able to do that anyway. When questioned about the reasons for delays, they would feel that they could easily say whether it was down to resources, either in public utterances to the media or more formally in evidence to the Committee.
Mr Davis
I started off being flattered by the suggestion from my hon. Friend the Member for Christchurch (Mr Chope) that I had been in some way seduced into mitigating the Bill, but I think that I am far beyond the point at which seduction, either metaphorical or real, is an option. Perhaps that is why, when it comes to new clause 3, which I think is the most substantive amendment in the group, I am not as much of an expert as the hon. Member for Ealing North (Stephen Pound) and my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) appear to be on the subject of corsets. As I understand it, corsets constrict things at one point and let them out at another. The risk in new clause 3 is that it would put such constraints on the ombudsman that problems would be created elsewhere.
There have been two problems with the operation of the ombudsman over the past few years: not meeting timetables and making mistakes. On a number of occasions the ombudsman has got things wrong, which has made things even more acutely painful for the people seeking help and support, because the ombudsman has had to go back and correct mistakes. Indeed, that happened on a number of occasions in the very case that is at the centre of this piece of legislation. Were we to go down this route, we might create a series of problems arising from the ombudsman making erroneous recommendations and proposals, which would of course lead to the issues being multiplied down the generations, rather than dealt with straightaway.
We must also remember that some of the issues that the ombudsman deals with not only require information from other Departments and other parts of Government, but sometimes involve contested arguments and may have legal liability associated with them, so we should not forget that there is a natural justice aspect to this. Finally, these issues are very often on the edge of science. The sepsis problem was one such issue, for which the medical profession is still seeking new solutions. We should be wary of going so far on this that we cause another set of problems. That is why I think the Bill as printed strikes the right balance.
Mr Davis
I am not sure that the legal liability relates simply to the person bringing the complaint. It could relate to other people too, such as those contracting services. It also relates very much to reputation. Someone may, in effect, be asked to make a confession according to a timetable, which is not a good idea in a statute.
I agree with my hon. Friend the Member for Bury North (Mr Nuttall) in his critique of amendment 5. On amendment 4, I would leave that to practice guidelines, rather than putting it into law. It is dangerous, as I said earlier, to create lots of onerous responsibilities in law. The aim of the Bill is to exert pressure and give a degree of public guarantee, not to try to tell the ombudsman how to cross every t and dot every i.
The one amendment with which I felt some sympathy but am still uncertain about is amendment 3. I presumed from the Bill that the ombudsman’s department would respond close to the 12-month point when it knew that it might go past it. Earlier, it is likely to have to adjust the timetable; later is not tolerable. I am uncertain whether it may lead to perverse or unintended consequences if we do exactly what my hon. Friend the Member for Christchurch has proposed. I will have to think about that. The Bill has to go through a Lords stage. I ask my hon. Friend not to press the amendment today, but I give him an undertaking that I will look at the matter closely and see if I can come up with a form of words that I can suggest as a change in the Lords; I will let him know if I am not able to do that.
Luciana Berger
I shall not speak for long, but I think it right to respond to the contributions, and to speak on the options proposed by the hon. Member for Christchurch (Mr Chope). As we know, new clause 3 proposes to make it a statutory duty for complaints to be resolved within 12 months. We do not think that that is necessary. It is clear that the Bill sets out sufficient steps to achieve that. I agree with the right hon. Member for Haltemprice and Howden (Mr Davis) that, as we know, the overwhelming majority of cases are dealt with within that time, but there are obviously reasons why it may sometimes take longer. As hon. Members suggested, there may be complex cases, other agencies may be involved, or there may be a historical or long-running case that requires the extraction of data from decades past, which it may take a long time to collate. It is often not the ombudsman’s fault that these things take time. We therefore do not think it appropriate to make meeting the 12-month deadline a statutory duty.
On the amendments, it is proposed that when the ombudsman contacts complainants, she gives them an estimate of how long the investigation might take. We discussed the point earlier in relation to new clause 2. We Members of Parliament can get updates from the ombudsman on the progress of cases and share those with our constituents if they want further updates. To be fair, if we think about all the processes in which we support our constituents, this is one in which updates are provided, and complainants are provided with information about how their complaints are progressing and when an outcome might be provided.
Amendment 1 would require the commissioner to keep the complainant informed of progress. There is nothing wrong with this in principle. We should encourage the ombudsman to do this anyway. As I mentioned, as Members of Parliament supporting those complaints, we can receive updates. On the point about financial resource, I have looked closely at the amendment and listened to the debate this morning, and think that where delays occur in the progress of complaints, more often than not that is down to the complexity of the cases, rather than a lack of financial resources, so amendment 5 is not necessary. We do not believe that new clause 3 or the five amendments are necessary.
Jane Ellison
I understand the sentiments behind new clause 3, tabled by my hon. Friend the Member for Christchurch (Mr Chope), and each of the five amendments. I shall try to respond to some of the points that have been made, without reiterating them.
New clause 3 would place a duty on the health service ombudsman to resolve any complaint within 12 months of the date it was received, regardless of its complexity. We all have sympathy with the reason behind it, and we all want investigations by the health service ombudsman, and indeed the NHS, carried out as efficiently as possible. None the less, it would be wrong to rush cases, or to seek to put an artificial time limit on them. What is most important to us as Members acting on behalf of our constituents is that the investigation is conducted appropriately and robustly, which depends on the facts of the case. This is particularly true, as others have said, when the investigation deals with serious or complex issues.
We are all familiar with the fact that the cases investigated by the health service ombudsman generally tend to be complex and serious because they often involve an element of loss, personal tragedy, illness or disability, so they are inevitably sensitive. It is important that those investigations are conducted in a timely fashion, but on the odd occasion when they need to continue beyond the defined period, it is important that there are not artificial constraints, and that we do not constrain the handling of a complaint by focusing on the deadline, rather than the requirements of the case. That may have an unintended impact on the quality of the investigation and the complainant’s expectations about the outcome.
The Bill as drafted will hold the ombudsman more accountable for delays of over 12 months than at present, which is right, but it acknowledges that there will be some cases, albeit very few, where it is appropriate and justifiable for an investigation to take longer. Some of my right hon. and hon. Friends have alluded to the reasons for that. In other aspects of my portfolio, I have seen some of those reasons. My hon. Friend the Member for Christchurch made a working assumption throughout his comments that one reason may be delay on the part of the investigator, but sometimes it is due to other players in that investigation.
In another part of my portfolio, something extremely important has been unexpectedly delayed by the bereavement of the chief investigator. That could not have been anticipated, but it has added greatly to the delay. Cases brought to the ombudsman nearly always involve illness, and evidence may need to be taken from someone who is still ill or in recovery. It may be difficult to get that evidence, or to ask them to respond to a point made during the investigation. If the person is still suffering the effects of their illness, there may need to be an appropriate delay to allow them to recover sufficiently to give their evidence.
The Bill’s promoter, my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), made an extremely good point about expertise. Complex medical issues are rarely black and white. In a debate that has already alluded to corsets and seductions, I hesitate to speculate on the number of shades of grey that might be involved in investigations, but it is clear that they exist. Sometimes, tracking down the right expert may be not a national endeavour, but an international endeavour, if the case involves a rare illness or there is a dispute about the medical opinion. Drawing on my experience of nearly 18 months as a Health Minister, I know that that is sometimes the case and we should allow for it, because it would not benefit the investigation if we did not. For those reasons, I hope that my hon. Friend the Member for Christchurch will agree not to press the new clause, and that he will feel not that he is condoning poor or slow administration, but that he is merely accepting that some things just take longer to address.
Mr Chope
May I thank everybody who has participated in this debate and my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), the Bill’s promoter, for his generous offer to at least consider amendment 3? I do not mean to be churlish, but it is a problem that we are debating the Bill on the penultimate private Members’ Friday. If my right hon. Friend were to choose, on reflection, to incorporate amendment 3 in an amendment in the other place, he would, in effect, jeopardise his Bill, because we would then have to consider it again after it had been amended. The Minister has indicated her potential support, so perhaps she would like to intervene on me to guarantee that, should that eventuality arise, the Government would give the Bill the necessary time to ensure that it was not frustrated by that process but reached the statute book. I must say that I am tempted to press amendment 3 to a vote, because it might be easier to include it in the Bill now rather than have a promise that something will be done later.
One could sum up this debate by saying, “Excuses, excuses, excuses.” It is so easy for public sector organisations to make excuses about why they cannot meet particular time limits.
Mr Arbuthnot
My hon. Friend has made a valid point about the remaining number of private Members’ Fridays. I hope that the ombudsman will at least read this debate and recognise that it would be best practice to put into her report the relevant time—in other words, as amendment 3 says,
“before the end of that period”.
Mr Chope
I am grateful to my right hon. Friend for putting that suggestion, which could help, on the record.
On the issue of excuses, I fear that we are entering the territory of double standards. When my constituents who are company directors are required to submit their company accounts by a particular day and fail so to do, or when other constituents are required to submit their tax return by 31 January and fail to do so, that failure incurs a penalty of £100 and there is no room for excuses such as family bereavements, delays by accountants or third parties and all the rest of it. In relation to the excuses made by Departments, or the ombudsman in this case, on which we want to place similar obligations, we are not consistent.
Mr David Davis
My hon. Friend has made a minor slip. The ombudsman is not a Department; it oversees Departments, responding to and being overseen by a parliamentary Committee.
At the end of the day, my hon. Friend may have a very good point about the timing of amendment 3. If he is right, the alternative would be for me to make it very plain to the ombudsman that that is what Parliament expects. It is certainly what I expect and what I intended in drafting the Bill. Rather than jeopardise the Bill, we should make sure, as is very easy to do, that the ombudsman understands that point, as does the parliamentary Committee overseeing it, which is our final recourse.
Mr Chope
My right hon. Friend is right to say that we are talking not about a Department but about a parliamentary sponsored organisation that tries to hold the Government to account. Yesterday, the House discussed the whole saga of Equitable Life, and what a long drawn-out saga it was. We know that the ombudsman tried desperately to get timely responses from the Treasury and other Departments, and was frustrated at every turn. Looking back at that, we can see that being able to say that she had a statutory obligation to deliver the result of an inquiry within a particular period would have helped rather than hindered her in the work she had to do.
Jane Ellison
I completely understand my hon. Friend’s point. I tried to draw out the fact that the interests of complainants may not be served by the proposal. As we all know, serious and complex complaints sometimes involve a death or serious injury, which means dealing with a bereaved family. The course of events over the 12-month period may not run smoothly for the very people making the complaint and wanting it to be resolved sensitively, sensibly and properly. This is not about Departments or the NHS making excuses, but about acknowledging that the sensitivities of the complainants and their loved ones mean that the ombudsman needs a little more time in some instances.
Mr Chope
I hear what my hon. Friend says. In essence, the more usual scenario in cases of bereavement is that people want what they describe as closure sooner rather than later. The Bill has been introduced to emphasise that it is the will of the House that such matters should normally be dealt with within 12 months.
Mr Davis
My hon. Friend is wrong about one thing: the ombudsman’s power rests on trust in the accuracy of the case that he or she makes. Equitable Life’s problems did not arise from that, but from the complexities of moral hazard and other such issues. A better example was the case of the state earnings-related pension scheme, in which the ombudsman, the Public Administration Committee and the Public Accounts Committee, under my chairmanship, was able to get the Government to pay out what turned out to be billions of pounds because of errors identified from accurate—though not, as it turned out, fast—investigation. The things we must not jeopardise are the accuracy and effectiveness of the ombudsman’s investigations.
Mr Chope
My right hon. Friend gives an example of which he had direct experience. All I can say is that it is a pity that people who present their tax return late are not allowed the same indulgence—saying that their affairs are very complex, or that their accountant let them down—to avoid a penalty. There is an issue with ensuring consistency in the rules.
We have had a good run round the circuit on this matter. As in the previous debate, this again emphasises that, as Eric Forth said, Bills should never go through on the nod without proper discussion. Although people may have looked at the Bill and thought it a pretty minor piece of legislation, even such a Bill—I have not seen many that are more minor—is worthy of discussion to work through its implications. Having said that and thanked hon. Members for their contributions to this short debate, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
Third Reading
Mr David Davis
I beg to move, That the Bill be now read the Third time.
I am delighted that the Bill has reached this stage. My hon. Friend the Member for Christchurch (Mr Chope) may think it is minor, but I do not think it will be minor for the people whose lives it will affect, whose complaints are dealt with more quickly and who will get closure more briskly as a result.
I want to take this opportunity to thank colleagues who have been supportive throughout the process, especially those who helped me to take the Bill through Committee. I thank colleagues who have helped me to meet some or all of Eric Forth’s six rules of good legislation, which is important and should particularly be borne in mind with private Members’ legislation.
As other Members have said, the original raison d’être of the Bill was the Sam Morrish case. However, it is not only about that case; all of us have had constituents with cases involving such important and recurrent issues. It is worth recounting the Morrish case because it highlights those issues very well.
In June 2014, the health service ombudsman published the report on an investigation into the care and treatment provided to Mr and Mrs Morrish’s son, who tragically died of septic shock on 23 December 2010, at the age of three, after a series of avoidable errors. In the three days before he died, his family dealt with the Cricketfield surgery, Devon Doctors Ltd, NHS Direct and the South Devon Healthcare NHS Foundation Trust. We have talked about the involvement of different organisations—all those organisations were involved, and they all failed in their duty to young Sam. His septic shock was misdiagnosed several times as he passed through the system. At each of the stages, what went wrong should have been corrected straight away, or as soon as possible thereafter.
In the report on Sam’s death, the ombudsman highlighted the lack of action taken to save the lives of people suffering from sepsis. The key point is that the ombudsman’s investigation is not just to address the complaint, but to prevent such cases happening again. She stated that the case demonstrated that the failure to diagnose and treat sepsis rapidly can have tragic consequences. Crucially, she found that Sam failed to receive appropriate care and treatment, but that had he done so, he would have survived.
The contents of the eventual report were commendable, but it took the ombudsman more than two years to investigate and report on the national health service’s handling of Sam’s case. During that time, a series of factual errors were made, which Mr and Mrs Morrish repeatedly had to correct; that must have been awfully painful, but we cannot address that aspect of the issue in this Bill. As a result, the Patients Association, which supported the Morrish family in their complaints, said that the ombudsman was not “fit for purpose”. The ombudsman apologised to the family personally:
“We took too long to investigate this case and made errors in the draft report. I recognise the family’s experience of us has contributed to their distress”,
which is to put it mildly.
As my right hon. and hon. Friends are only too aware, Sam Morrish’s case is not a singular instance, but something that comes up time and again. The stringing out of complaints in the NHS only causes further distress to patients and their families. There is a danger that such delays will lead to the underlying problems remaining unaddressed and uncorrected. When things go wrong, it is vital that lessons are learned. By improving the ombudsman service, we will take a small step towards ensuring that they are.
Although the ombudsman service is committed to changes that will require it to meet a timetable and, if it does not, to explain why, the future management of the service might not be as good as its current management. That is why the legislative backing is being provided. The Bill is just legislative backing; it is a guarantee. It will give the organisation the power to meet what should be a self-evident aim.
The Bill is straightforward, simple, not that minor and absolutely non-partisan. It has wide support across the health service, the ombudsman service and both sides of this House. The simple aim is to improve the effectiveness of the health service ombudsman, who is the final tier of the national health service complaints system and often the last port of call for distressed patients and families. The Bill achieves that goal primarily by requiring that when the health service ombudsman takes action, they do so with a view to concluding the investigation of complaints within 12 months. If that time scale is not met, they must explain why to the complainant.
The Bill is a first step. I expect that in the new Parliament, there will be a complete review of the ombudsman service and the complaints mechanisms that feed into it. That will be an unalloyed good because too often, as my hon. Friend the Member for Christchurch said, Departments are too slow, too unaccountable, too prone to excuses and not sufficiently committed to delivering the service our constituents want. The Bill intends to rectify that.
The current ombudsman, Dame Julie Mellor, has done a very good job. The Bill intends to reinforce that and to ensure that it is continued in the generations to come.
Madam Deputy Speaker (Dame Dawn Primarolo)
I call Mr David Arbuthnot. I’m sorry—James.
Mr Arbuthnot
I want to say briefly that when we deal with a Bill about complaints against the national health service, we inevitably concentrate on the complaints. However, an essential part of this debate should be a recognition that, by and large, the national health service does a fantastic job and its doctors, nurses, managers and support staff are dedicated to the improvement of people’s lives, with what has recently been described as “institutionalised altruism”. The national health service is a wonderful part of our national life. We are not going to privatise it. It is an icon that we mess with at our peril. Nobody will succeed in persuading people that we are going to privatise it. If we were stupid enough to try such a thing, we would lose the election and the public know that. We need to say that time and time again.
For all its wonderfulness, from time to time the national health service slips up and makes a mistake. That will not happen on the majority of occasions or even on a hugely significant number of occasions proportionately, but when things go wrong, the question is how we deal with the mistakes. Do we cover them up? The answer is no we do not. We have to listen. Inevitably, the ombudsman will get things wrong from time to time. My right hon. Friend the Member for Haltemprice and Howden (Mr Davis) referred to one tragic case in which that happened. The question is how we deal with such mistakes.
My right hon. Friend’s Bill is an excellent step in improving things. It is not a minor step, but a very important one. It will add to the openness with which the ombudsman deals with things. It needs and deserves the support of the House.
Madam Deputy Speaker (Dame Dawn Primarolo)
To equal out my mistake, I suppose that I should call James Nuttall. [Laughter.] But I won’t. I will call David Nuttall and apologise to Mr Arbuthnot for my mistake.
Mr Nuttall
There is a haulage contractor in my part of the world who bears the name James Nuttall. I am sure that he will be flattered that his name has been mentioned.
I congratulate my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) on piloting the Bill through to Third Reading. Although he came 19th in the ballot, had the draw been done in the traditional way, he would have come second and piloted the European Union (Referendum) Bill, which would have been a slightly weightier task.
Mr Nuttall
Yes, I am afraid so. That Bill is not going to reach the statute book.
I hope that this Bill does reach the statute book. It is a short Bill. As the promoter said, it is simple and straightforward. It aims to set a clear target for the ombudsman to operate within. When the target cannot be met, it requires that reasons be given.
As was mentioned at the outset this morning, this is the first time the Bill has been debated on the Floor of the House. The exploration of the matters that were raised on Report was therefore useful, because it teased out matters that could usefully be considered in the forthcoming review and examination of the ombudsman’s procedures. I am sure that those who conduct the review will read this debate and reflect on those matters.
I wish the Bill well this morning. I am sure that it will receive a Third Reading. I also wish it a speedy passage through the other place in the days that remain before the Dissolution of this Parliament.
Mr Chope
I hope that I have not been too harsh on my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) in the course of this debate.
In preparing for Third Reading, I looked at the explanatory notes to the Bill. The summary states:
“The Health Service Commissioner for England (Complaint Handling) Bill seeks to increase the effectiveness of the Commissioner (known as the Health Service Ombudsman), who is the final tier of the NHS complaints system. It does so primarily by requiring the Health Service Ombudsman to take action with a view to concluding investigations of complaints within 12 months”.
The Bill does not actually do that. That is my concern. I fear that the Bill is in danger of raising expectations, because it does not require the health service ombudsman to do anything to bring forward a resolution of complaints within 12 months. All it does is to say that if she does not, she has to include references in the annual report and communicate with the complainant.
Even on the basis of the summary in the explanatory notes, I fear that the Bill falls short of the expectations of its promoter. Obviously, if we are in the business of littering the statute book with more pieces of legislation, there is no reason why this one should not be added to the others.
Luciana Berger
I add my congratulations to the right hon. Member for Haltemprice and Howden (Mr Davis) on the progress of his private Member’s Bill, which contains important reforms that we support.
The measures will rebalance the complaints procedure in favour of the citizen and away from the bureaucracy. If someone feels that they have been mistreated or have been the victim of a medical accident or malpractice, they deserve swift redress. What many complainants want is a clear decision, communicated swiftly, and assurances that the medical procedures and administrative processes have changed to prevent unnecessary harm or pain from happening to someone else. In fact, only last night, I met one of my constituents who is going through the process, and their primary motivation is that no other friend or family member should experience what they have gone through.
For most complainants, it is not about financial compensation. It is about justice. When a service such as the NHS lets someone down, the injustice feels so much worse because of the high regard in which it is held. I echo the comment of the right hon. Member for North East Hampshire (Mr Arbuthnot) that we should commend the thousands of men and women who work in our national health service and do such a wonderful job on a daily basis, but there are of course occasions when things do not go right. That is why the Bill is so important.
Long delays in getting answers to complaints merely exacerbate a problem and build a sense of grievance and alienation. People feel like they will never get answers and are being strung along, and of course that is not good enough. The right hon. Member for Haltemprice and Howden should therefore be congratulated on his Bill, which is entirely straightforward and has a simple, non-partisan approach and purpose. As others have said, it has wide support throughout the health service and in the ombudsman service itself, and I hope it will have support in all parts of the House when we conclude the debate.
Anyone listening to the tragic case of little Sam Morrish, which the right hon. Gentleman outlined this morning, cannot fail to recognise that this reform is needed. As the House has heard, it took the ombudsman more than two years to investigate and report on the national health service’s handling of Sam’s case. During that time, a series of factual errors were made, which Mr and Mrs Morrish repeatedly had to correct. It is fair to say that they were let down badly by the NHS. They lost their little boy, and the process that they had to endure to seek justice and redress took too long and compounded their tragedy. They deserve every ounce of sympathy that the House is capable of offering. I hope that they are listening and hear that we really are on their side.
The Patients Association, which supported the Morrish family in their complaints, said at the time that the ombudsman was not fit for purpose. Hon. Members of all parties will have had to refer constituents’ treatment in the NHS to the Parliamentary and Health Service Ombudsman, and some of those cases—not many—will have taken a great deal of time to be processed. One thing is clear: when the ombudsman falls short, it is essential that it is open and transparent. The idea of an annual report setting out the details of how long investigations and complaints have taken to be concluded is welcome. It makes a great deal of sense, because it will allow the public to see the amount of work that the ombudsman has had to do in a 12-month period and understand why, in some cases, it has had to take longer than 12 months to reach some kind of conclusion and resolution.
The Bill’s provision on accountability to Parliament and the public is an important change. It is a small one, but it will make a great difference to the ombudsman’s work and people’s confidence in it. It is also important to note that the ombudsman welcomes the call for greater transparency and openness about its performance.
Perhaps it is worth reflecting at this point on the fact that, since the ombudsman was established in 1967 to help Parliament to hold public services to account, there have been many reforms and changes. To its credit, it has embarked on a modernisation programme since 2012, and its statutory annual report to Parliament, “A voice for change”, explains how, as a result of the first phase of that programme, it concluded six times more investigations in 2013-14 than in the previous year, completed 99% of cases within 12 months and halved the average length of investigations from 432 days to 223 days. That represents solid progress, and I congratulate the ombudsman’s staff on the work that they have done.
The reality is that there is still progress to be made, however, and I wish to press the Minister on two points, to which I hope she will be able to respond. On 31 March 2013, the ombudsman had a maximum of 30 NHS complaints that it had not concluded within 12 months. No figure was given in the annual report for 2013-14. Can the Minister share with us today, or perhaps in a letter, why there has been a delay in releasing the figure? I believe that we agree about the Bill, but I would like to hear why she thinks it will work.
I note that some have called for much wider changes to the ombudsman service—we have had an extensive debate about it over the past two and a half hours. I draw Members’ attention to the recommendations in the Public Administration Committee’s recent report, “Time for a People’s Ombudsman Service”, which included proposals for different scrutiny arrangements that would make it easier for Parliament to hold public services to account. The Cabinet Office has given a commitment to the Committee that it will carry out a review of the ombudsman landscape, and the Opposition look forward to the outcome. With the indulgence of the House, perhaps the Minister will update us on whether that review has begun and what its scope is or will be, because that will shape the way in which the Bill is introduced.
I understand that the ombudsman has now launched the second phase of its modernisation programme, focusing on what people can expect from investigations and examining the quality of its service. I understand that it will consult NHS users and patients’ groups on the development of a new service charter, which is very welcome.
The age of deference has passed, and citizens expect high standards of service, real choices and accountability from their public services. The digital revolution allows the citizen to be more informed about their medical conditions and treatments than any other generation in history. The NHS in England treats 1 million people every 36 hours, and when things go wrong, as they inevitably will in an organisation of the size and complexity of the NHS, citizens have the right to honesty, transparency and swift redress. The Bill takes some important steps in the right direction. I look forward to its being passed.
Jane Ellison
We have had a thoughtful and productive debate, and I congratulate right hon. and hon. Members from all parties on their contributions. The shadow Minister made a thoughtful contribution about some of the wider issues relating to the ombudsman’s work and some of the inquiries and reviews that are ongoing. I hope that she and the House will forgive me if I do not respond immediately to those points, as they are not directly germane to the Bill. I will look to get a response to her questions to her after the debate, if that is acceptable to her.
I put on record my appreciation of the consensual way in which all parties have approached the Bill. As the House is aware, very few private Members’ Bills make it beyond Second Reading, so it has been good to see the commitment throughout the House to improving how the health service ombudsman handles complaints.
I hope that we will be able to get the Bill on the statute book because the Government fully support it. It fits within the transparency revolution that the Secretary of State for Health has driven, and it is an important Bill that will improve the accountability of the health service commissioner for England to complainants and Parliament.
Obviously we would not be here without the sterling efforts of my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), whom I commend for his work to improve the experience of people who make a complaint about the NHS. I also commend my right hon. Friend the Member for North East Hampshire (Mr Arbuthnot) and other Members who raised on Report some of the issues underlying good practice in complaints handling. That has enriched the debate on the Bill. I am sure that, when the ombudsman and her team read the transcript, they will find it helpful to see that Parliament has given some time and thought to how they go about their business. I am sure they will also note with pleasure the positive comments that have been made, particularly about Dame Julie Mellor’s efforts to improve and enhance the work of her organisation.
I thank my officials in the Department of Health, the Clerks of the House and everyone who has contributed to the Bill. I reiterate that I commend my right hon. Friend the Member for Haltemprice and Howden for bringing this short but important Bill to the House. There will be moments when all of us have constituents whose burden at a moment of vulnerability and distress is reduced by the measures in it. I reiterate the Government’s full support for it.
Question put and agreed to.
Bill accordingly read the Third time and passed.