Health Service Commissioner for England (Complaint Handling) Bill

Luciana Berger Excerpts

Friday 27th February 2015 Commons Chamber

[Mr Arbuthnot]

It is worrying that my right hon. Friend is persuading me that I am wrong. It is very worrying, while one is on one’s feet, to be persuaded out of one’s own arguments. If he will allow me to cling on for just a few moments, I will get to the dregs of my argument.

The ombudsman might be the only champion of someone who is already vulnerable because they have been incapacitated to one extent or another by their health needs. Therefore, it would be a good idea to encourage the ombudsman to give as much information as possible to the complainant at the outset of the complaint, although my right hon. Friend is right, given his fourth or fifth Eric Forth principle on keeping laws as minimalist as possible, that we possibly should not put it into law.

As I said, 99% of complaints are completed within 12 months—that is, those that are taken on by the ombudsman. We will have to come back on Third Reading to whether the ombudsman takes on enough of the complaints that are made to them, because that issue arose in the evidence sessions of the inquiry of the Public Administration Committee into the ombudsman. If my new clauses were accepted and the ombudsman had to make an estimate of how long it would take, it is quite possible that they would simply have to tick a box to say that it would take less than 12 months. Therefore, the new clauses might, as my right hon. Friend might say, add very little but a formality. As I have said, I do not think that this reflects the way in which the health service commissioner operates. If there is an issue, she does as much as she can to keep people informed about what is happening.

The new clauses are probing amendments and, as I say, I will not die in the ditch for them. However, I look forward to hearing the views of my right hon. Friend the Member for Haltemprice and Howden, my hon. Friend the Minister and the Opposition spokesman about this minor attempt to be helpful.

[Luciana Berger (Liverpool, Wavertree) (Lab/Co-op)]

I will give a brief response on the two proposals of the right hon. Member for North East Hampshire (Mr Arbuthnot) in new clauses 1 and 2. On Third Reading we will perhaps talk at greater length about the merits of the Bill and why it is important that we are here today. I acknowledge that these are intended to be probing amendments to provoke discussion and debate.

New clause 2 is important. We know from many of our constituents who are going through this process that it often comes at a difficult time. Any more information that they can receive about how long they should expect to wait would be helpful. We are all familiar with the card that the ombudsman already provides to us on receipt of our applications to them, so any further information that we could provide to our constituents about how long they should expect to wait would be helpful.

I see no problem with new clause 2, which seeks to provide a complainant, at the outset of an investigation, with

“an estimate of the period within which the investigation is likely to be completed.”

The key point is that it is an estimate. My only concern, although I acknowledge that the overwhelming majority of cases are completed within a year, is that we must manage the expectations of anyone who submits a complaint to the ombudsman. I reiterate that cases often come at a difficult time for people, and the concern is about complainants having to wait for months beyond the time set out by the ombudsman.

We will talk more on Third Reading about why a complaint might be brought, but we often support constituents at a time when they have had a loss or gone through a difficult medical procedure, and we know that it is important to manage expectations. Anything that we can do to provide assurance will be positive, but I do not want any period that the health service commissioner sets out to give people a false sense of security that they will receive a response within a certain time, when it could be many months after that.

I look forward to the Minister’s response, but I do not think there is much to take issue with in new clause 2 if the right hon. Member for North East Hampshire decides to press it to a Division. As I said, my only concern is about the broader provision of information to the public. I would not want to place on the health service commissioner too onerous a duty to provide a wide audience with expectations of when complaints might be responded to. We know from the commissioner that there is already an expectation that complaints will be responded to within 12 months, which is helpful, but new clause 2 would help to give people who are bringing a complaint some expectation of when it might be responded to.

[Mr Nuttall]

It is always a pleasure to follow the shadow Minister, whose remarks were pithy and straight to the point. I will try to be equally pithy in dealing with these short new clauses. I am grateful to my right hon. Friend the Member for North East Hampshire (Mr Arbuthnot) for tabling them, because they give us an opportunity to consider whether it is appropriate to include in the Bill a requirement for information to be provided to the public in general, and a complainant in particular.

New clause 1 states:

“The Health Service Commissioner shall make available to anyone considering making a complaint, an estimate of the period within which investigations are to be completed.”

Frankly, I wonder whether there is any need for the new clause. I do not want to pour cold water on my right hon. Friend’s attempts to improve the Bill, which I know are well intended, but I wonder whether he is aware of any occasion when someone has approached the commissioner and said, “I am thinking of making a complaint. Can you tell me how long you think it might be?”, and the commissioner has said, “I’m sorry, I can’t tell you that. We’re not going to tell you.” If there are a lot of people in that position, I agree that we need to address it in legislation, but I have certainly never had anybody approach me and say, “I was thinking of making a complaint, but they won’t tell me how long it will take.” I am not sure that there is a particular problem that we need to address, but I am sure that my right hon. Friend will enlighten us about that.

--- Later in debate ---

[Mr Davis]

I am not sure that the legal liability relates simply to the person bringing the complaint. It could relate to other people too, such as those contracting services. It also relates very much to reputation. Someone may, in effect, be asked to make a confession according to a timetable, which is not a good idea in a statute.

I agree with my hon. Friend the Member for Bury North (Mr Nuttall) in his critique of amendment 5. On amendment 4, I would leave that to practice guidelines, rather than putting it into law. It is dangerous, as I said earlier, to create lots of onerous responsibilities in law. The aim of the Bill is to exert pressure and give a degree of public guarantee, not to try to tell the ombudsman how to cross every t and dot every i.

The one amendment with which I felt some sympathy but am still uncertain about is amendment 3. I presumed from the Bill that the ombudsman’s department would respond close to the 12-month point when it knew that it might go past it. Earlier, it is likely to have to adjust the timetable; later is not tolerable. I am uncertain whether it may lead to perverse or unintended consequences if we do exactly what my hon. Friend the Member for Christchurch has proposed. I will have to think about that. The Bill has to go through a Lords stage. I ask my hon. Friend not to press the amendment today, but I give him an undertaking that I will look at the matter closely and see if I can come up with a form of words that I can suggest as a change in the Lords; I will let him know if I am not able to do that.

[Luciana Berger]

I shall not speak for long, but I think it right to respond to the contributions, and to speak on the options proposed by the hon. Member for Christchurch (Mr Chope). As we know, new clause 3 proposes to make it a statutory duty for complaints to be resolved within 12 months. We do not think that that is necessary. It is clear that the Bill sets out sufficient steps to achieve that. I agree with the right hon. Member for Haltemprice and Howden (Mr Davis) that, as we know, the overwhelming majority of cases are dealt with within that time, but there are obviously reasons why it may sometimes take longer. As hon. Members suggested, there may be complex cases, other agencies may be involved, or there may be a historical or long-running case that requires the extraction of data from decades past, which it may take a long time to collate. It is often not the ombudsman’s fault that these things take time. We therefore do not think it appropriate to make meeting the 12-month deadline a statutory duty.

On the amendments, it is proposed that when the ombudsman contacts complainants, she gives them an estimate of how long the investigation might take. We discussed the point earlier in relation to new clause 2. We Members of Parliament can get updates from the ombudsman on the progress of cases and share those with our constituents if they want further updates. To be fair, if we think about all the processes in which we support our constituents, this is one in which updates are provided, and complainants are provided with information about how their complaints are progressing and when an outcome might be provided.

Amendment 1 would require the commissioner to keep the complainant informed of progress. There is nothing wrong with this in principle. We should encourage the ombudsman to do this anyway. As I mentioned, as Members of Parliament supporting those complaints, we can receive updates. On the point about financial resource, I have looked closely at the amendment and listened to the debate this morning, and think that where delays occur in the progress of complaints, more often than not that is down to the complexity of the cases, rather than a lack of financial resources, so amendment 5 is not necessary. We do not believe that new clause 3 or the five amendments are necessary.

[Jane Ellison]

I understand the sentiments behind new clause 3, tabled by my hon. Friend the Member for Christchurch (Mr Chope), and each of the five amendments. I shall try to respond to some of the points that have been made, without reiterating them.

New clause 3 would place a duty on the health service ombudsman to resolve any complaint within 12 months of the date it was received, regardless of its complexity. We all have sympathy with the reason behind it, and we all want investigations by the health service ombudsman, and indeed the NHS, carried out as efficiently as possible. None the less, it would be wrong to rush cases, or to seek to put an artificial time limit on them. What is most important to us as Members acting on behalf of our constituents is that the investigation is conducted appropriately and robustly, which depends on the facts of the case. This is particularly true, as others have said, when the investigation deals with serious or complex issues.

We are all familiar with the fact that the cases investigated by the health service ombudsman generally tend to be complex and serious because they often involve an element of loss, personal tragedy, illness or disability, so they are inevitably sensitive. It is important that those investigations are conducted in a timely fashion, but on the odd occasion when they need to continue beyond the defined period, it is important that there are not artificial constraints, and that we do not constrain the handling of a complaint by focusing on the deadline, rather than the requirements of the case. That may have an unintended impact on the quality of the investigation and the complainant’s expectations about the outcome.

The Bill as drafted will hold the ombudsman more accountable for delays of over 12 months than at present, which is right, but it acknowledges that there will be some cases, albeit very few, where it is appropriate and justifiable for an investigation to take longer. Some of my right hon. and hon. Friends have alluded to the reasons for that. In other aspects of my portfolio, I have seen some of those reasons. My hon. Friend the Member for Christchurch made a working assumption throughout his comments that one reason may be delay on the part of the investigator, but sometimes it is due to other players in that investigation.

In another part of my portfolio, something extremely important has been unexpectedly delayed by the bereavement of the chief investigator. That could not have been anticipated, but it has added greatly to the delay. Cases brought to the ombudsman nearly always involve illness, and evidence may need to be taken from someone who is still ill or in recovery. It may be difficult to get that evidence, or to ask them to respond to a point made during the investigation. If the person is still suffering the effects of their illness, there may need to be an appropriate delay to allow them to recover sufficiently to give their evidence.

The Bill’s promoter, my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), made an extremely good point about expertise. Complex medical issues are rarely black and white. In a debate that has already alluded to corsets and seductions, I hesitate to speculate on the number of shades of grey that might be involved in investigations, but it is clear that they exist. Sometimes, tracking down the right expert may be not a national endeavour, but an international endeavour, if the case involves a rare illness or there is a dispute about the medical opinion. Drawing on my experience of nearly 18 months as a Health Minister, I know that that is sometimes the case and we should allow for it, because it would not benefit the investigation if we did not. For those reasons, I hope that my hon. Friend the Member for Christchurch will agree not to press the new clause, and that he will feel not that he is condoning poor or slow administration, but that he is merely accepting that some things just take longer to address.

--- Later in debate ---

[Luciana Berger]

I add my congratulations to the right hon. Member for Haltemprice and Howden (Mr Davis) on the progress of his private Member’s Bill, which contains important reforms that we support.

The measures will rebalance the complaints procedure in favour of the citizen and away from the bureaucracy. If someone feels that they have been mistreated or have been the victim of a medical accident or malpractice, they deserve swift redress. What many complainants want is a clear decision, communicated swiftly, and assurances that the medical procedures and administrative processes have changed to prevent unnecessary harm or pain from happening to someone else. In fact, only last night, I met one of my constituents who is going through the process, and their primary motivation is that no other friend or family member should experience what they have gone through.

For most complainants, it is not about financial compensation. It is about justice. When a service such as the NHS lets someone down, the injustice feels so much worse because of the high regard in which it is held. I echo the comment of the right hon. Member for North East Hampshire (Mr Arbuthnot) that we should commend the thousands of men and women who work in our national health service and do such a wonderful job on a daily basis, but there are of course occasions when things do not go right. That is why the Bill is so important.

Long delays in getting answers to complaints merely exacerbate a problem and build a sense of grievance and alienation. People feel like they will never get answers and are being strung along, and of course that is not good enough. The right hon. Member for Haltemprice and Howden should therefore be congratulated on his Bill, which is entirely straightforward and has a simple, non-partisan approach and purpose. As others have said, it has wide support throughout the health service and in the ombudsman service itself, and I hope it will have support in all parts of the House when we conclude the debate.

Anyone listening to the tragic case of little Sam Morrish, which the right hon. Gentleman outlined this morning, cannot fail to recognise that this reform is needed. As the House has heard, it took the ombudsman more than two years to investigate and report on the national health service’s handling of Sam’s case. During that time, a series of factual errors were made, which Mr and Mrs Morrish repeatedly had to correct. It is fair to say that they were let down badly by the NHS. They lost their little boy, and the process that they had to endure to seek justice and redress took too long and compounded their tragedy. They deserve every ounce of sympathy that the House is capable of offering. I hope that they are listening and hear that we really are on their side.

The Patients Association, which supported the Morrish family in their complaints, said at the time that the ombudsman was not fit for purpose. Hon. Members of all parties will have had to refer constituents’ treatment in the NHS to the Parliamentary and Health Service Ombudsman, and some of those cases—not many—will have taken a great deal of time to be processed. One thing is clear: when the ombudsman falls short, it is essential that it is open and transparent. The idea of an annual report setting out the details of how long investigations and complaints have taken to be concluded is welcome. It makes a great deal of sense, because it will allow the public to see the amount of work that the ombudsman has had to do in a 12-month period and understand why, in some cases, it has had to take longer than 12 months to reach some kind of conclusion and resolution.

The Bill’s provision on accountability to Parliament and the public is an important change. It is a small one, but it will make a great difference to the ombudsman’s work and people’s confidence in it. It is also important to note that the ombudsman welcomes the call for greater transparency and openness about its performance.

Perhaps it is worth reflecting at this point on the fact that, since the ombudsman was established in 1967 to help Parliament to hold public services to account, there have been many reforms and changes. To its credit, it has embarked on a modernisation programme since 2012, and its statutory annual report to Parliament, “A voice for change”, explains how, as a result of the first phase of that programme, it concluded six times more investigations in 2013-14 than in the previous year, completed 99% of cases within 12 months and halved the average length of investigations from 432 days to 223 days. That represents solid progress, and I congratulate the ombudsman’s staff on the work that they have done.

The reality is that there is still progress to be made, however, and I wish to press the Minister on two points, to which I hope she will be able to respond. On 31 March 2013, the ombudsman had a maximum of 30 NHS complaints that it had not concluded within 12 months. No figure was given in the annual report for 2013-14. Can the Minister share with us today, or perhaps in a letter, why there has been a delay in releasing the figure? I believe that we agree about the Bill, but I would like to hear why she thinks it will work.

I note that some have called for much wider changes to the ombudsman service—we have had an extensive debate about it over the past two and a half hours. I draw Members’ attention to the recommendations in the Public Administration Committee’s recent report, “Time for a People’s Ombudsman Service”, which included proposals for different scrutiny arrangements that would make it easier for Parliament to hold public services to account. The Cabinet Office has given a commitment to the Committee that it will carry out a review of the ombudsman landscape, and the Opposition look forward to the outcome. With the indulgence of the House, perhaps the Minister will update us on whether that review has begun and what its scope is or will be, because that will shape the way in which the Bill is introduced.

I understand that the ombudsman has now launched the second phase of its modernisation programme, focusing on what people can expect from investigations and examining the quality of its service. I understand that it will consult NHS users and patients’ groups on the development of a new service charter, which is very welcome.

The age of deference has passed, and citizens expect high standards of service, real choices and accountability from their public services. The digital revolution allows the citizen to be more informed about their medical conditions and treatments than any other generation in history. The NHS in England treats 1 million people every 36 hours, and when things go wrong, as they inevitably will in an organisation of the size and complexity of the NHS, citizens have the right to honesty, transparency and swift redress. The Bill takes some important steps in the right direction. I look forward to its being passed.