Health Bill [HL]

My Lords, I thank my noble friend, Lord Dubs, who is not in his place, and the noble Baroness, Lady Stern, for tabling this amendment, which would place a requirement on the ombudsman to provide individual complainants with the providers’ representations and allow them an opportunity to comment. The amendment would also require the ombudsman to send its draft statement to the complainant, the provider and any other person who may have taken the action complained about, and take any comments into account before a decision on the complaint is concluded. I fully understand the desire to try to ensure that all parties are treated fairly under the new scheme. The ombudsman considers general human rights and the principles and values of equality as part of the overall approach to its job. The ombudsman is a public authority so it has to abide with the laws on human rights. As noble Lords are aware, the ombudsman currently operates a scheme relating to complaints made by people about local authorities. Our general approach to the new scheme is, wherever appropriate, to design the detail of the scheme to be consistent with the way the existing local authority scheme works. We are confident that the ombudsman operates the existing scheme in a way which is fair to both authorities and complainants. In the current local authority scheme, the ombudsman generally shares representations with the complainant. It will take a similar approach in the new scheme. Its aim is to establish the facts of each case fairly and reasonably. It would normally be difficult to do so without seeking the views of the complainant about what a provider has said about the matter complained about. However, sometimes the provider’s comments on a complaint may not be relevant, or are already known to the complainant, such as previous correspondence between the provider and the complainant. Or a provider may make a large number of comments, many of which, because they identify third parties, cannot be passed on to the complainant for reasons of confidentiality. Giving the ombudsman discretion over the information to be sent to the complainant helps to avoid making the process bureaucratic and time-consuming. It is, of course, in the complainant’s interest not to slow the process down. With regard to the requirement to send copies of all statements out in draft to the complainant, which the amendment also seeks, I should point out that statements have to be produced for all complaints, including those that the ombudsman is not going to investigate, so it would serve little or no purpose for the ombudsman to have to share draft statements simply saying that there was nothing to investigate. There would be little that the ombudsman could do if the complainant then said they disagreed, but it would add another layer of activity to the process. Under the current local authority scheme, the ombudsman generally allows parties to see its provisional conclusions following an investigation in the interests of fairness. This system works well and avoids undue bureaucracy or delays in the process. It is very likely that disregard for the ombudsman’s decision will be a pointer to poor performance generally and will attract the Care Quality Commission’s close attention. This is both an incentive to providers to comply and a lever to improve their services. In addition, there are significant powers in the Bill for the ombudsman to make public information about providers which do not comply with the recommendations. While it is absolutely right that the procedure must be fair to the complainant and the provider, the amendment would require something that will in practice happen anyway, while risking a layer of additional bureaucracy and removing essential flexibility. It would also mean making a legal provision that would be a departure from the current local authority scheme and the legislation governing other UK public sector ombudsman schemes. I hope that I have been able to provide sufficient explanation and reassurance to the noble Baroness, Lady Stern, and that she will feel able to withdraw her amendment.