Select Committee on Public Administration Minutes of Evidence


Examination of Witnesses (Questions 20-39)

SIR MICHAEL BUCKLEY AND MS HILARY SCOTT

THURSDAY 7 FEBRUARY 2002

  20. Given the increase in complaints and worries—and that is probably going to continue, I suspect, and you would agree with that—is it not somewhat important that legislation is brought forward fairly rapidly? You are starting to be overwhelmed because of the sheer numbers, and you are beginning to get to the stage where you are being hauled up before select committees every other week to explain what is going on.
  (Sir Michael Buckley) I think it is very desirable to proceed with legislation. I think we could provide a much better service to the public. I think on the whole there has been an increasing number of complaints, particularly on the health side, but at the moment we are coping. My concerns are in some ways more on the parliamentary side of the Office, where the Office receives a tiny number of complaints by any international standards. We have again by international standards a lot of people to deal with them. I believe that with new legislation the parliamentary side of the Office could deal with a significantly higher volume of complaints with no more staff, because we could adopt much better and more efficient working methods.

  Chairman: That is a theme we shall return to when we see you next month.

Mr Trend

  21. On the question of your relations with the Government, it seems to be a difficult time for your species. There does seem to be more tension between the Ombudsman profession and the Government than there has been in the past.
  (Sir Michael Buckley) I would not want to comment on the position of other people. My perception of the relationship with the Government is that although there are some areas of difficulty, particularly, obviously, in the area of access to information that has been discussed, I think it is more a matter of neglect than of confrontation.

  22. So you think the Government does not have such a high priority in developing the service?
  (Sir Michael Buckley) That is my reading of it.

  23. You did describe it recently on the radio as being uphill work in dealing with the Government, particularly with the number of cases which you have mentioned, one we recall, the Robathan case, and a different case as well. Those surely are concrete examples of difficulties. Indeed, in the case of the Robathan inquiry you disagreed publicly, which I think is almost unique.
  (Sir Michael Buckley) That is the area where I think the difficulties are greatest. Again, this is entirely on the parliamentary side of the Office but I think there are three areas perhaps in ascending order of significance. One is there are departments, perhaps because of changes in personnel or whatever, who do not really understand how we work or what we are trying to do. That can lead to difficulties in individual investigations. But we can and do put that right by sensible exchanges at working level. Next we have some problems when we get into the issue of redress. We have some fairly long drawn-out negotiations with government departments. But the real problem, I think—because I know that these matters are discussed at very senior level, and therefore they show what the attitudes are at senior level—is in the area particularly of access to official information. The Robathan case which Mr Trend mentioned was put to the Minister. That was a case in which, now I re-read the report, I can see that I have fallen into my usual mistake of being far too kind. I shall fight against this tendency in future. But the fact of the matter is that we issued a draft report of our findings in March of last year, and it took the Government seven months to comment on that report, and at the end of the day there was further argument. The Government refused to accept my view of the situation. That is the first time that the recommendations of an Ombudsman in this area have been refused. There are other cases which, since they are still under investigation, I will just give brief details of, if I may, rather than go into matters which are not yet in the public domain. There is another case in which it took us six months of hard pounding at very senior level actually to get access to the papers. There is another case in which we were back to the very bad old days of exemptions being produced right at the last moment. The case had been investigated, we had looked at the papers, the particular exemption which was eventually quoted was not as much as mentioned or trailed. It had not been mentioned to the applicant for information, it had not been mentioned in the course of the investigation, but right at the last minute when we produced a draft report another exemption was produced out of the hat. This just drags things out. I am sure the Committee is going to give me a hard time on our throughput times of investigations, but what are we to do? We either go ahead and publish reports without getting redress, which I do not think is very satisfactory, or we have to engage in months of hard pounding to get at what we regard as at least a reasonably satisfactory outcome.

  24. You thought you were being too kind on this, but what were the exceptional features in the Robathan case which make you feel that it was a very serious case?
  (Sir Michael Buckley) I think there were two things. One is that it just took far longer than it should have done. The second was I simply could not understand what the difficulty was from the point of view of the Government. Of course, one can imagine circumstances in which, for example, the Government says there are considerations of national security or diplomatic relations which make it inappropriate to release information. I might take a different view, but I could accept that as a reasonable difference of opinion, and ultimately I have always said I think it is the Government, which is a democratically elected body, which should have the last word. But to refuse to release purely numerical information in this area is something which I just could not understand.

  25. Mr Leslie told the Committee last week that there were new structures in place. Did you find that convincing?
  (Sir Michael Buckley) I am not clear what Mr Leslie meant. That is a matter you would have to put to him. I do know that this was a matter which was considered, not simply by the Home Office but by other departments. It was not simply the Home Office being a set of mavericks. They were unlucky enough to be the departmental ministers criticised, but I have every reason to believe that this was a conscious, considered expression of view by the Government as a whole.

Mr Wright

  26. You mentioned a successor or successors. What is your preferred option?
  (Sir Michael Buckley) I believe that the right solution is to split the posts of parliamentary and Health Service Ombudsman, and I say that for a number of reasons. It is worth mentioning at the outset that the idea of splitting the posts is not new. It was mooted both by my immediate predecessor, Sir William Reid, and by his predecessor, Sir Anthony Barrowclough, on workload grounds essentially. Since the end of the 1980s, when Sir Anthony Barrowclough was the Ombudsman, the workload in my office has more or less trebled. That is of some significance, but I think there are more important issues. The way that the health side of the Office has developed since 1996 has meant that it has become essentially an organisation dealing with clinical matters. Eighty per cent of our work now is concerned with matters of clinical judgement, and therefore you need someone with stronger NHS credentials than I have or which a parliamentary Ombudsman is likely to have. Traditionally, the Parliamentary Ombudsman has been either a senior civil servant or a lawyer, and I think one would probably look for a somewhat different recruitment pool for the Health Service Ombudsman. Finally, although it may seem paradoxical, it is the view of myself and my Local Government Ombudsman colleagues that it goes in the direction that we think right for a new Collcutt institution. As we envisage it, a new institution would be a collegiate body; it would have a number of Ombudsmen, probably about five, and there would be some specialisation within that. The formal jurisdictions would be the same, but there would tend to be specialisation in dealing with cases, both because it is sensible to do that, and because we know from some of the responses to consultation that, for example, the local government associations and Health Service bodies want someone who is reasonably expert in their field and understands them, someone whom they can regard as an interlocutor when they have problems. I think we would see the natural structure of that as probably three Ombudsmen concentrating on the local government area; one Health Service Ombudsman, perhaps with responsibilities for social services, which with local authorities is a natural link; and finally a parliamentary Ombudsman. One would be moving in that direction. Moreover, one has to remember that if the Collcutt recommendations go ahead, one of the recommendations was that the parliamentary Ombudsman would become chairman of the new body. So first, it is reasonable to expect a significant increase in the number of parliamentary complaints if the MP filter goes; secondly, the parliamentary Ombudsman as chairman would have a considerable workload, and I do not think it would be sensible to expect him or her to be Health Service Ombudsman as well. Everything points in that direction, which is why I advocated it to the Government.

  27. It is a bit worrying that you say your predecessor and his predecessor had also mentioned this as well. Do you see this dragging on into the future again, or do you see it coming to a conclusion?
  (Sir Michael Buckley) It must reach a conclusion sooner or later, as the Committee rightly pointed out. If the Government wish to recruit a successor in the summer, they had better start doing things like placing job advertisements, and the job advertisements had better make clear what the job is, and things like that.

  28. It is a bit worrying. Last week it was in the papers that you were minded to retire, and this week that you intend to retire. In terms of the new powers with the patients' advocacy and liaison service, do you see that as a positive move or something that is probably going to increase the workload of the Health Service Ombudsman?
  (Sir Michael Buckley) May I just pick up one point Mr Wright made? You are giving the slight impression that I have been shilly-shallying and changing my mind. I put this proposal to the Government eight months ago, and they still have not decided. Of course, I am willing to stay on as necessary in the public interest, but I would like an answer. I will now deal with the substance of the question. I have always said that I do not want to be drawn into discussion of whether the new patients' advisory and liaison service, or indeed, any of the other bodies in this area are or are not an improvement on the old community health councils. The essential point is twofold: one, that there must be someone accepted as independent to whom someone with a complaint can turn; secondly, there needs to be genuine help for a complainant working their way through what is inevitably a somewhat bureaucratic and formal procedure. It can be very daunting to people. They need assistance. They need help both with the technicalities and with moral support. As long as those conditions are satisfied, I would have no problems. I have always found, for example, in general the community health councils carrying out that sort of role can be very helpful, because they help formulate the complaint, and they help the complainant concentrate on the things that really matter. It is really how it works in practice, I think.
  (Ms Scott) I would only say that I would hope that the introduction of the patient advisory and liaison service and potentially the independent advocacy service would allow people to make more complaints locally, to raise more concerns and have them dealt with well locally, but at the same time, matters which were not really suitable for local resolution or that needed to be taken further would then feed into the process that we spoke of earlier, which is where cases which are suitable for investigation would get to us more quickly. The shape of the way in which complaints move through the system will change. I am not sure we will actually see an increased volume of complaints necessarily coming to us; perhaps just different ones.

  29. Finally, on the MP filter, I have seen that as an anomaly that should disappear. Would you agree with that?
  (Sir Michael Buckley) Indeed so. I think it is part of the reforms. I think it is anachronistic. I do not think it has any useful effect. Some people may say, "Well, this enables MPs to keep in touch with problems their constituents have." I am sure they can do that very well. One just has to look at the numbers. The parliamentary side of the Office has never received as many as three complaints per Member per year. It has never reached that much. The Collcutt Review thought the number of complaints reaching the new institution might double. Let us think big; let us say it goes up by a factor of ten so that there are perhaps a couple of dozen complaints per Member per year that might go direct to the parliamentary Ombudsman. I can only ask the Committee, is that going to make a big dent in your postbag?

Chairman

  30. Is there a case for a short, sharp measure just to get rid of the filter?
  (Sir Michael Buckley) It needs to go further, Chairman. People say the filter should be axed, but it goes much further than that. It all flows from the philosophy that the parliamentary Ombudsman as originally conceived was not actually there to sort out complaints; he was there to act as a research facility for MPs. You have the MP filter. All dealings, as far as the Act is concerned, once the complaint has been referred, are between the Member and the Ombudsman. The original complainant has no further role. The Act does not even allow the complainant to see a copy of the final report unless the MP chooses to send it to him or her. And there is a very heavy emphasis on investigation and reporting. What all the Ombudsman legislation says is "for the purposes of conducting investigations in accordance with the provisions of this Act there shall be an Ombudsman," and the structure is that if you investigate you must produce a report. A formal investigation and a formal report is not the way to resolve—the modern word—the great majority of complaints, particularly on the parliamentary and local government side, that the Ombudsman receives. It is not just a matter of saying there can be direct access; something further than that is needed.

Annette Brooke

  31. I still have a great concern that, given that we have so many high profile cases, where perhaps hospitals had patterns that have gone over a long period of time before they have been picked up, and with GPs similarly, rather a lot of patients damaged in some way before it is picked up, do you feel there should be some strong lead here to pull these strands together? I do not understand how people out there can have any confidence that we are not going to have yet another Shipman case or whatever. It is not there at the moment, is it?
  (Sir Michael Buckley) I think there are a number of problems in the area. One is the sheer multiplicity of bodies that have some responsibilities now for monitoring or inspecting or whatever the National Health Service. I think there is still some difficulty within the National Health Service in ensuring that information is circulated and gets to the right people. As the Committee will recall, the Chief Medical Officer produced a document about the NHS being a learning organisation, and one of the key messages of that was the importance of using the information already in the system through complaints and otherwise in order to learn messages, to pick up trends and problems, and to try to reduce the size of this problem to which you have drawn attention. We do our best to help. In particular, as you know, I have pressed for an extension of powers so that if I have found there is a threat to the health and safety of patients, I can draw that to the attention of the appropriate bodies. We coordinate our activities with the Commission for Health Improvement to make sure they are aware of any concerns that we have—as far as we properly can, of course, within the constraints of the statute. If we pick up material that suggests there may be a problem in a particular part of the NHS, we will tell either the Commission or the regional office of the NHS. But I think there is going to be a continued need to ensure that there is proper coordination so that the information that exists is drawn to the attention of the right people. For example, one of the messages that seemed to me to come through from the Bristol case was not that people did not know, but that the information was around the system and it was not always available to those who might act on it, and those who might act sometimes did not. I take the point that there is a problem. We are doing our best within our own remit to address it, but it is something that is going to need continued attention.
  (Ms Scott) I think it is a very commonly voiced concern that information does not get drawn together in the way it ought. As we have said, we are making our appropriate relationships with the Commission for Health Improvement and the National Patient Safety Agency, for example, another newer organisation, but something that does concern us is that information from complaints is not necessarily part of the local clinical governance arrangements in organisations, so when people in an NHS organisation themselves come together round the table to assess the quality of the work they are doing, the complaints manager is not necessarily there. For example, the key organisations have recently formed, I understand, a NHS reviews group to make sure that there is some coordination between the Commission for Health Improvement, the National Patient Safety Agency and the Audit Commission. Information on complaints is not there either, and I do feel sometimes that the valuable information that can be drawn from the complaints people make about their experiences is not actually being fed into the system yet, and it needs to get a boost in profile inside NHS organisations and the Department of Health to give it exactly that sort of profile. There were 145,000 complaints about the Health Service last year. A proportion of them, just under half, came from family health services. In fact, almost no information is collected about the subject of complaints in family health services at the moment. It is one of the issues we hope will be addressed, and we have commented upon in our response to the Department of Health's document on complaints. It is one of the things we picked up. So I think you are quite right to be concerned that that block of information may not be available.

  32. I was wondering more generally whether the Ombudsman Department, which it might become, would it not have some responsibility for actually making sure that information was pulled together in the areas that you are likely to want it. It is a classic communication problem, and they can result in wars, let alone terrible disasters.
  (Sir Michael Buckley) Indeed. Ultimately, the way in which information is used within the NHS is a matter for the NHS. We can only do our best, but one of the reasons again—and we mentioned one earlier—why we do publish a substantial proportion of our work is precisely to enable lessons to be drawn from the NHS. Secondly, I would hope that an explicit part of the remit of any new body would be to issue guidance on best practice, perhaps to conduct systemic investigations and so on. But I think one has to stress that it is a matter of using all the information, everyone taking their part. The Ombudsman—any Ombudsman organisation—will have one stream of information from complaints and one way of dealing with them, but there are other bodies as well. There is the Commission, and other inspection and advisory bodies. It is really a matter of trying to coordinate the activities of those bodies to make sure they all get that information. I am sure that as a system, there is a way of using all the information that is available from all sources.

  Annette Brooke: It would be quite interesting to know who is going to do it.

Mr Trend

  33. In your Annual Report you suggest I think critically that because the reports are no longer circulated to the NHS, clearly there is a problem there. Why do you think that has happened? Is it part of the relentless march of government?
  (Sir Michael Buckley) I understand that Mr Milburn took the decision because he wished to cut down the amount of paper being showered on senior managers in the NHS. We have done our best to counter that. Our own publication policy has been reviewed several times. We are doing our best to make sure that information about our publications is available within the NHS and to make sure that they are as accessible as they possibly can be. We can only do our bit, of course.

  34. But you would have preferred bits of paper to arrive on all those desks?
  (Sir Michael Buckley) Yes, I would. It is all very well, for example, saying, "It is available on the Web," and that is useful and helpful, but not everyone finds it easy to use electronic methods. Many people prefer hard copy.

Mr Prentice

  35. Annette mentioned Harold Shipman, and you said earlier that people are more ready to complain about hospitals than about their GP. Do you get more complaints about single-handed practices like Shipman's than about group practices?
  (Sir Michael Buckley) I do not think we have any statistics on that.
  (Ms Scott) No. My impression is actually that there is a fairly even spread of complaints about different sorts of general practice, both single-handed practices and multi-partner practices. I do not detect any difference.

  36. Why is it that people are reluctant to complain about GPs? Is it because GPs do a fantastic job compared with hospital doctors?
  (Sir Michael Buckley) I think there are a number of reasons. One is that it is a much more personal relationship, and my own belief is that is the main reason. It is easier to feel you are complaining against an institution than if you are complaining against a person. That is part of it. There is the folklore out there, which I think has some force to it but I would not want to exaggerate its importance, that you do not complain against your GP or you and your family will be removed from the list. That is something which the family health service, which has jurisdiction, has taken a strong line against. It is wholly unreasonable. We get relatively few cases of that, but we see some, and we read cases where it is alleged to have happened. My belief is that the primary reason, as I say, is that GPs are still regarded as a friend, rather than a consultant whom one sees and one hopes to see once in a lifetime.

  37. A lot of these friends in my area come from Spain now, and the Government is actively recruiting Spanish hospital doctors and GPs. I wonder how many complaints you are getting from people who say a GP simply cannot understand them or even misdiagnose because of any problems.
  (Sir Michael Buckley) I can think of one or two cases we have had, though I do not think in fact it was doctors from countries in the European Union. Again, we have had a few cases, but I cannot say that it is a recurrent theme.
  (Ms Scott) I would agree with that. There are failures in communication between practitioners and patients, and I think the other element to the relationship between the general practitioner and the patient is that it is a continuing one. You hope to never see the consultant again, but you have a continuing relationship with the general practitioner. None of them have been to do specifically with language difficulties. There may be differences of expression and emphasis that have been misunderstood.

  38. You do not have any responsibility for dentists working in the private sector who may do some NHS work?
  (Ms Scott) No.

  39. Where do people go? I find the new system has become immensely complex, and I am sure patients do as well. Where there has been negligence on the part of dentists or perhaps they have done treatment that was unwarranted just to get extra money, where do people go who have complaints?
  (Sir Michael Buckley) The British Dental Association has been establishing an independent complaints procedure. I am not sure where they have got to. What Mr Prentice says is quite right. Purely private medicine is outside the jurisdiction.


 
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