Health Service Commissioner for England (Complaint Handling) Bill

David Davis Excerpts

Friday 27th February 2015 Commons Chamber

[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.

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[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 Davis]

That runs into another Eric Forth rule, which is that that would cost money.

[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 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.

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[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.

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[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 Chope]

My right hon. Friend refers to potential legal liabilities, but my understanding is that anybody who comes before the ombudsman with a complaint has to give a guarantee that they are not intent on taking legal redress.

[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.

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[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.

[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.

[Mr Arbuthnot]

rose—

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[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 David Davis]

Weightier and more futile!

[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.