Covid-19: NHS Contact Tracing App
Lord Arbuthnot of Edrom Excerpts(4 years, 7 months ago)
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Lord Bethell
My Lords, where the Isle of Wight leads, the country follows. We are enormously grateful to islanders for taking this pilot on board with energy and enthusiasm. I would like to consider ways of recognising that. One important lesson that we have learned from the island project is that the human touch of contact tracing is incredibly important and we will be implementing that at later stages.
Lord Arbuthnot of Edrom (Con)
My Lords, I declare my interest as chairman of the Information Assurance Advisory Council. In normal times, the cybersecurity advice that we would all give would be to keep the Bluetooth on our mobile telephones switched off unless and until we need it in a private setting. But these are not normal times. What advice would my noble friend the Minister give to help us protect ourselves while using this app?
Lord Bethell
My Lords, the Bluetooth used by the app is the latent Bluetooth, which does not need to be turned on and off. Our advice is for everyone to ensure that they keep their Bluetooth on. In fact, we will be issuing specific advice to doctors and other health workers who spend a lot of time in each other’s company, to ensure that the app does not create erroneous data.
Learning Disabilities Mortality Review
Lord Arbuthnot of Edrom Excerpts(5 years, 7 months ago)
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Baroness Blackwood of North Oxford
The noble Baroness is absolutely right that this issue must be a top priority, and I assure her that the Secretary of State is taking it as such. I repeat that it is entirely inappropriate that disability of any kind—in particular, learning disability or Down’s syndrome—should ever be used as a reason for a DNR, and that NHS England will be writing to all doctors to remind them of this fact. It will be made absolutely clear.
The noble Baroness is right that there should be no reason for people with learning disability to have a different life expectancy. A commitment has already been made in the long-term plan to address those challenges, including increasing the uptake of annual GP health checks for people with learning disabilities to 75%, as it is recognised that physical care for those with learning disabilities is not as effective as it should be; creating a digital flag on patient records for all people with learning disabilities and autism by 2023; and reducing the number of in-patients with learning disabilities by half by 2024. We are increasing the pace with which we do that.
The noble Baroness’s last point, which is really important, concerns ensuring that all those working in the health system are trained to treat those with learning disabilities. A consultation on this matter has just closed and we will respond to that in the next two to three months.
Lord Arbuthnot of Edrom (Con)
My Lords, I thank my noble friend the Minister for her helpful answers so far. Is one of the problems that there is a contradiction between our natural desire to make sure that there is no variation in treatment or administration across the country and our equally natural desire to ensure that local people can make decisions on the basis of their local resources? Is there a sense that the Government cannot win?
Baroness Blackwood of North Oxford
In my view, there should be no variability in the quality of care that a person with learning disabilities receives in whatever part of the country they are in. That is exactly why the LeDeR was brought in, why we have brought in a care review to understand why there is variation, why we are bringing in support through training for those delivering care and why we are bringing in measures under the long-term plan: so that individuals can be identified and flagged up to healthcare professionals who, once they have the training, can apply it and bring in proper healthcare for individuals so that they do not see the life expectancy challenges in healthcare we have been seeing until now.
Health Service Commissioner for England (Complaint Handling) Bill
Lord Arbuthnot of Edrom Excerpts(9 years, 9 months ago)
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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 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 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.
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.
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.
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—
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
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.
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.