Health Service Commissioner for England (Complaint Handling) Bill

Jane Ellison Excerpts

Friday 27th February 2015 Commons Chamber

My final point to my right hon. Friend the Member for North East Hampshire is this. My expectation of the ombudsman’s department is that a complaint is answered as soon as is feasible and as soon as is reasonable, taking into account its complexity. I do not want the ombudsman working to an artificial target of three, four or five months, but neither do I want complaints spun out to fill the time. The proper answer is that the ombudsman should always know that the most expeditious, the most effective and the most complete response is the one that the public demand. That should not require the law to deliver.

[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.

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[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.

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[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.

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[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.