Examination of Witnesses (Questions 1-19)|
THURSDAY 7 FEBRUARY 2002
1. Can I call the Committee to order and welcome
our witnesses this morning. We are delighted to have you both
with us for one of our regular sessions looking at the work of
the Ombudsman. It may be helpful if you said a few words, and
then we will ask you some questions.
(Sir Michael Buckley) Thank you, Chairman.
I will be brief because not only is the Annual Report for last
year on the table but also the memorandum that I sent to you.
I should like to begin by saying that I welcome the opportunity
to present my report as Health Service Commissioner for England
for the year 2000-01 to you today. In the memorandum I have submitted
to the Committee I have highlighted themes that arose from the
investigations which my Office conducted in 2000-01. Although,
of course, those investigations were concluded some time ago,
the themes continue to be of relevance to my current work. The
need to ensure that communications between NHS bodies and staff
and patients are effective; that supervision of, and support for,
junior medical staff is of a good standard; and that essential
nursing care is conducted according to benchmarks of clinical
practice remain common elements of my findings. In addition, there
are a number of other factors, both in terms of my Office's workload
and performance and in developments in the wider political and
NHS environments, which present challenges and opportunities for
the work of the Health Service Commissioner for England. Some
of these the Committee recognised in its session with the Minister
last week. First, my Office's workload continues to rise. I have
taken steps to ensure that in this context the backlog of older
investigations is cleared while at the same time new staff are
inducted and trained. Secondly, there has, of course, been little
progress to date on the implementation of the reforms necessary
to enable the public sector Ombudsmen to operate in the most effective
manner. Finally, work continues, though I have to say rather slowly,
on the reform of the NHS complaints procedure and on the handling
of clinical negligence claims. The relationship between the Committee
and my Office remains of central importance to the effectiveness
of our work, and I am sure that my successoror successors,
as the case may bewill value this relationship equally.
2. Thank you very much indeed. Could I start
by asking you a question which I must have asked you umpteen times
over the years? Whenever I look at your reports, I always want
to know several things, one of which is how on earth you decide
which complaints you take on and which you do not? I understand
the point that you know if they are outside your jurisdiction
or if they have not been through the internal stuff, then you
put them to one side. The figures show that in 2000-01, the year
that we are looking at, you received 2,595 complaints against
NHS bodies, and of those, you accepted 241 for investigation.
Then you say at some point in your Annual Report, "The decision
was taken" talking about in a previous period, "to investigate
a higher proportion of complaints." So you have taken a decision
to investigate a higher proportion of complaints, but this suggests
it is a bit hit and miss whether you get your complaint investigated
or not, dependent on how many you are going to investigate. What
is the answer to this?
(Sir Michael Buckley) One point to make at the outset
is that what we call investigable complaints are a good deal smaller
than the headline number. In other words, far too many complaints
come to the Office without any sign that they have been put to
the NHS body or the NHS practitioner concerned. We cannot investigate
those under the law, and we do not. Something of the order of
two-thirds of the complaints reaching the Office are not investigable,
and I think that raises questions which we address about our own
publicity. But even within that investigable number, I quite take
the point that we investigate only between one-quarter and one-
third, and you wonder what criteria we apply.
3. You say you investigate 28 per cent. How
do you find that 28 per cent?
(Sir Michael Buckley) Essentially, what we are looking
for is whether the Office will add value. Usually a complaint
will have been not only through local resolution in the NHS complaints
procedure, but also through an independent review panel. If when
we look at the case, and perhaps look at the clinical records,
it seems to us that the panel have done a sensible job, that they
have taken proper clinical advice, that their conclusions are
clearly expressed and address the issues in the complaint, there
is really very little point in our spending taxpayers' money and
imposing burdens on the NHS to go over the same ground. Even if
we reached a slightly different conclusion, it would not necessarily
follow that any conclusion could be drawn from that. If two sets
of clinicians say on the one hand this was a reasonable approach
and another two sets say it was not, where do you go? What we
try to do is to investigate those complaints where we see grounds
for concern, whether there seem to be flaws in the treatment,
flaws in the way the IRP has conducted its business, or flaws
in the explanation, because that is quite an important part of
our work. Very often we find in our investigations that in substance
the diagnosis, the care and the treatment were all right, but
the patient or the patient's relatives have not received a clear,
comprehensible and up-front explanation of what has gone on. Often
what my Office can contribute is that explanation, and the reassurance
that we have looked at things and really, it was all right. That
is the sort of approach.
(Ms Scott) I do not have a lot to add; just two things.
Firstly, there is a small number of cases where a matter has been
complained about which we can help the complainant clear up in
correspondence with the NHS organisation concerned. There are
not a vast number of those, but nevertheless, we do try to do
that. Overwhelmingly, the decision about whether or not to investigate
is whether we think a reasonable person would be satisfied with
the explanation they have had and understand it, and if not, we
try to find a way of making sure they do get that explanation.
Secondly, it is whether we think there is any cause for concern,
taking our own internal advice on that matter, that needs further
investigation. It is that index of suspicion that there might
be a problem that would be worth looking at in more detail that
has led to an increase in the number of complaints that we see
and an increase in the workload.
4. When you decide not to investigate three-quarters
of the ones that you could investigate, do you tell people what
the criteria are that you have applied in deciding?
(Sir Michael Buckley) Indeed so. We never just send
a two-liner saying, "Sorry, your case does not qualify."
We send them a letter, frequently quoting from our own internal
medical advice, saying that we do not think this is a case that
is appropriate for investigation because of this, this and this.
There is a sense in which, again, we would be knocking up against
the problems of the statute. The structure of the statute is that
we either investigate or we say, "No, we can't touch it."
In fact, very often what we are doing is quite a lot of work.
We may, for example, ask to see copies of the clinical records,
and take internal advice. It is simply that we do not go on to
the further elaborations of asking formally for comments from
the chief executive of a trust or taking witness evidence or asking
for external professional advice. We do not just brush these cases
aside. We do our best, as indeed, we must under the statute, to
give an explanation why we do not think it necessary to proceed
to a statutory investigation.
5. Then when people write back to you, as they
often do, or they write to people like us, and say, "Come
on, this is not right. What he's told me is not true; there are
all these other factors," do you look at it again then?
(Sir Michael Buckley) We always look at the case again,
and the practice of the Office is that if there is a comeback,
and certainly if there is any suggestion of a complaint about
the way in which the Office has handled the matter, then it would
be referred to the next level up, and indeed, sometimes comes
all the way to Hilary or to me to look at. If, for example, it
appears on the comeback that there is a genuine clash of evidence,
we might well investigate, but very often, for example, there
is a comeback saying, "I am still not happy," or "I
have other medical advice which takes a different view,"
and if we check with our own medical advisers, who say, "No,
we are satisfied," there is not much to be gained from continuing
a rather technical discussion. Again, there is often misunderstanding,
and people will go and get advice from, say, a specialist, whereas
what we are looking at is what a GP or an ordinary hospital doctor
decided. Our process is one of peer review, not on the assumption
that if this case had gone to the leading specialist in the country,
that specialist might have said something different.
6. Can I ask you another question which I know
I have asked you many times before? We always talk about our old
friend the backlog, and our old friend is still with us. Obviously,
it is profoundly unsatisfactory to have these so-called old cases
lurking around for ages. It is unsatisfactory for you in the Office
because it clogs you up, and it is unsatisfactory for complainants.
Why can we not sort it out?
(Sir Michael Buckley) If only it were that simple,
Chairman. Perhaps I can just say one word about why it arose and
then what we are trying to do about it. As you alluded to in your
earlier question, we decided at the end of 1999 that our criteria
for accepting cases for statutory investigation were too restrictive
and we would take more cases on. What we thought was that quite
a substantial proportion of the additional cases would prove to
be fairly straightforward and we could dispose of them quite quickly.
That proved not to be so, and I have to admit that that implies
that some of the criticisms about our previous policy were justified.
We were turning cases away that we should have taken on, and we
take them on now. It is very hard to know just what the consequences
are going to be in the medium term when one has additional cases.
You cannot recruit extra staff just because there is an increase
in the number of cases you are taking on over a period of, say,
three or four months. It has turned out that we had shifted probably
to a significantly higher level of complaints in the medium term.
Perhaps we were a little bit slow in reacting to that. Maybe we
should have reacted a few months earlier than we did. We did respond.
We undertook a substantial recruitment campaign to get people
in to deal with these cases, but of course, it takes time to get
people up to speed. We have suffered from staff turnover for a
variety of reasons, and other problems too, connected I think
in many ways with the growth of new investigatory, regulatory
and monitoring bodies in the Health Service. We were losing staff
there. We are also finding some difficulty in, for example, securing
external professional advice. There is a limited pool of people
who can provide this sort of professional advice, obviously, and
more people are dipping into it. For example, I have had some
discussions with my GP colleagues who advise on GP cases, and
they say that they are often approaching potential external assessors
who say, "I would love to help you but, I am sorry, I am
so busy establishing a new primary care trust"or work
on clinical governance or whatever it may be"that
I can't help you." It is not so much that we are taking 12
months just looking at the case in a desultory sort of way every
day; there are long lead times where we are trying to get advice,
where we have to wait months before we can arrange a case conference
of consultants and so on. We have addressed this. The backlog
of old cases is coming down, but always, I am afraid, backlogs
come quite quickly and it does take months to get rid of them.
I am hoping that by the end of this year we will be down to quite
a small number of cases over 12 months, and we shall continue
to work on that. However, in essence I cannot but agree with you.
We hate these backlogs. It is particularly bad when, as so often
happens, they come at the end of the NHS complaints procedure,
and it has already taken a long time. I would dearly like to reduce
the time we are taking, but there are problems.
(Ms Scott) The only thing I would add to that is that
there are features of cases which mean we know they are going
to take some time to investigate properly and to clear: where
there is more than one agency involved in a case, where there
is more than one discipline involved in a case, or where the matter
complained about is of particular clinical complexity. There will
always be cases that take us a longer rather than a shorter time
to dispose of properly, and I think that where we are clear with
complainants and respondents about the work that goes into investigating
a complaint, they are actually very reasonable and understand
that it is important that we do take the time. But the fact is
that an increase in our workload coincided with a reduction in
the capacity the staff had. There is a very close correlation
between the length of service a member of staff has and the speed
at which they dispose of a case. It is common sense. So when one
goes up and one goes down, it gets them into line again. I believe
that we will be reasonably well back into line. We predicted it
would take 15 months and in fact it could take 16 or 17 months
from when we were going to have this problem. I am looking forward
7. Does the current industrial problem that
you have bear on this? I am aware that you have a problem with
the staff at the moment. Indeed, some of them have written to
the Committee and have made the point that it is the pay structure
problems which have led to a large exit of staff, which in turn
possibly feeds into the problem that you are describing now. Is
this the case?
(Sir Michael Buckley) I do not want to discuss our
negotiations with the union in any detail. Obviously, it is an
unhelpful development from management's point of view. What I
would say is that a key part of the problem, and one which the
staff themselves were very strong on 12 months ago, was partly
problems with starting pay, and partly, one of the things that
we are suffering from is people leaving us in their first two
years of service. We are putting a lot of effort into induction
and training, and I think in fact we are the only body that is
training people in this area, and naturally enough, we want to
get some payback from that. So our pay offer this year was directed
very much to that aim. It is concentrated heavily on bringing
people up the pay scale when they gain experience. That is where
we have concentrated our pay offer in response to what we perceive
as the essential management need, which is precisely to retain
staff in those early years when they are coming up quite quickly
to speed, and as I say, putting it bluntly, we want a payback
on the investment we put into their training.
8. Is this in sight of resolution?
(Sir Michael Buckley) We have made various attempts,
including going to ACAS recently. Those attempts have not been
successful and in the last couple of days management has decided
that it would implement the pay offer. As far as we are concerned,
that draws a line under last year's pay negotiations.
9. I ask not because we have any role; we do
not. Our role is in the knock-on effect in the kind of areas we
are talking about, your ability to handle backlogs, turn cases
over reasonably and so on, and to have the volume of staff that
can do it.
(Sir Michael Buckley) Absolutely, Chairman, and again,
more widely, we thought very hard about staffing policy within
the Office and what we should like to do in the short and medium
term is to move towards a structure which has fewer levels, in
which our main case worker grade will be a senior investigating
officer. We can justify that because we would obviously expect
higher performance in terms of more output of cases, less managerial
supervision, and on that basis we can justify higher pay, which
will, we hope, help with our problems of recruitment and retention.
But as you will understand, we have a show that we have to keep
on the road, and we cannot move to where we would like to be in
10. When the review of the Ombudsmen happened,
you were described as providing a Rolls Royce service for very
few cases, but very thoroughly investigated, and you wanted to
move to a more family saloon type of approach where you had a
large number of cases very quickly. How near are we to the family
(Sir Michael Buckley) I think we are nearer to having
a family saloon production line on the parliamentary side of the
Office. One has to remember that the sort of cases with which
the two sides of the Office, and indeed, the Local Government
Ombudsmen, deal are rather different. Many of the cases that are
dealt with on the parliamentary side of the Office are where someone
has a problem, someone is not getting their retirement pension
or a single mother is failing to get child support maintenance,
and what that person is keen to do is to get the pension or the
child support maintenance, as the case may be, and they are not
really interested in an elaborate investigation as to just what
goes on in the benefit agency. The health cases are different.
There is not a problem that one can just sort out, so to speak.
We do not get the cases of, "I want an appointment next week
with my GP and I can't get one." It is much more that there
has been an operation that has gone wrong, and someone is suffering
from serious side effects or consequences. "My mother went
into hospital and she died. I want to know why." In that
sort of case what is necessary is an authoritative and impartial
investigation of the facts. What people are looking for is an
investigation of what happened. Something went wrong, and they
want an apology, and they want a reassurance that it will not
happen again. So there is, I think, quite an important difference
between the two sides of the Office. We still want, of course,
on the health side of the Office only to go as far as we need
for a just conclusion. Of course, we want to get cases through
in a reasonable time, but inevitably, for these sorts of investigations,
the fact-finding issues, the need to take proper clinical advice,
take time, and I do not think people would be satisfied if it
looked as though we had done a rather cursory investigation.
11. Looking at the figures, you have an increase
of 70 people overall in the number of complaints. If you look
at the south-east and London, there is a massive 5-6 per cent
increase in the number of complaints. Why is there that geographical
(Sir Michael Buckley) This is an issue that we have
debated several times. The structure of things in London and the
south-east is different. For example, traditionally London and
the south-east has relied more heavily on the hospital secondary
service rather than primary care, GPs, and people are as a matter
of experience more ready to complain about hospitals than they
are about their GPs. Again, quite a few people who are treated
in hospitals or receive medical attention and have a complaint
against a body in the south-east may not actually be resident
there. So it is not a matter of simply looking at the population;
it is also looking at people who come in from outside. Some say
there is greater readiness to complain in London, but that is
not universally accepted. I think too there has to be some element
of greater problems in London and the south-east. Many trusts
in the south-east, for example, find difficulty in recruiting
nursing staff, and that is bound to have a feed-through. So there
are a number of factors at work here, and it is very difficult
to isolate them.
(Ms Scott) Trying to draw conclusions from the geographical
spread is actually very difficult. One of the things I think is
quite important in looking to parts of the country where there
seem to be fewer complaints coming through within the NHS complaints
procedure is how people get access to the service and who is not
making the right connections or is not able to make a connection.
It is not a recent phenomenon that there is such a skew in geographical
distribution of complaints coming to us, and although we have
tried to dig down to see if it is anything we are doing, we do
not think it is.
12. There seems to be greater scepticism of
official advice these days, whether it is as a result of BSE or
whatever. MMR at the moment is a classic example where there is
very clear official advice, but people just do not believe it
because it is official advice. Has that permeated into your complaints
(Sir Michael Buckley) I think there is some mistrust.
One of the strengths of my Office is that it is generally accepted
as being genuinely impartial and reasonably authoritative, I hope.
We have always made it very clear that our job is to do justice
in the individual complaint. We are neither the complainant's
advocate, and that is important to retain the confidence of the
profession, nor are we the profession's defenders. We do an impartial
job. One of the reasons why I have adopted a policy of publishing
a high proportion of our investigation reports is to put things
into the public domain. There it is. There is the medical advice
we have received. Of course, we anonymise it for reasons of patient
confidentiality. It is there for the professions to assess as
being of a good professional standard, and of course, for people
like the Patients' Association to check that we are not just accepting
the say-so, that we are not part of that perhaps mythical medical
professional conspiracy against lay people. Of course, our conclusions
are sometimes disputed. There are times when people say, "Oh,
well, you are just in thrall to the NHS," but they are relatively
rare; they are what any complaints body has to reckon with, and
I do believe quite genuinely that we are accepted as being impartial
in trying to do the best and most honest job that we can.
13. What input are you making into the new complaints
and patient forums and things like that in the NHS?
(Sir Michael Buckley) We did contribute thoughts to
the Department of Health's listening exercise, as I think they
called it, on the changes in the NHS complaints procedure, and
we have made the memorandum that we put to that exercise available.
One has to be clear on two things. First, it is not our procedure;
it is the Government's, and also we see relatively little of what
is, after all, the main complaints handling part, which is local
resolution, and that deals with something like 97 per cent of
complaints, and obviously they tend not to come on to us. But
yes, we do contribute, we have contributed, and we continue to
contribute to discussion of changes in the NHS complaints procedure,
and we certainly intend to do that.
14. Sir Michael, how many people work for you?
(Sir Michael Buckley) The total number fluctuates.
We have 80-85 staff operating on the health side of the Office.
15. Do you feel that is adequate to do the job
you are doing?
(Sir Michael Buckley) I think it is enough in numbers.
The real problem, as we have been trying to bring out, is inexperience.
There are diseconomies in having too many people. They get in
the way and they make work for each other. So it is not that we
need a lot more staff, but that we need to capitalise more on
the training we are giving them. I would like, as I said, also
to move towards a situation in which our main case worker grade
is a person who can produce more and work with less supervision.
So it is not a matter of numbers.
16. You have answered the question I was going
to come on to, the skill level. You are dealing with more and
more technical situations within this as the Ombudsman, and you
are looking to expand the role, but it is the ability to perhaps
encourage retired GPs or clinicians or whatever to join. Is that
an area you are looking at?
(Sir Michael Buckley) We do not have a problem with
recruiting and maintaining an adequate number of what we call
our internal professional advisers. Of course, people leave from
time to time and we have gaps that we have to fill, but we have
not had any serious problem of recruiting people in that capacity.
The problem that I was alluding to earlier about our staff is
as regards lay investigators, and what is important there is that
we are a lay investigating body. We are not like the Royal Colleges
or the GMC. Of course we are looking at clinical issues and clinical
cases, but we are trying to do that from the lay person's perspective,
to explain what happened in terms that the lay person can understand.
It is very important that we have that mediation between the technical
clinical advice and what we actually say in the report. That is
where we do need people with experience, because there are not
large numbers of people who have investigating skills and can
understand the clinical approach.
17. Looking ahead a little bit, you actually
say that one of the things the Ombudsman believes is that the
need for change is urgent. What is your utopia for change? Where
would you like to see yourself in, say, three or four years' time?
(Sir Michael Buckley) As a general proposition, I
would like to see a new single Ombudsman institution, the sort
we described before. Where I would like to see us, particularly
on the health side, is that I would like to see complaints which
are suitable for my Office coming through more quickly. That is
one of the problems with the NHS complaints procedure. It is one
of the reasons why we are criticised, perfectly understandably,
for delay. It is one thing that we have to take nine months to
conduct an investigation and do a thorough job if the complaint
is relatively fresh. If it comes at the end of a long process
which has already taken two or three years, it is very unsatisfactory
for the complainant. It also means it is very unsatisfactory for
us. It is hard to do an investigation. Any recommendations we
make are rather out of time. I get very depressed when, as happens,
I see cases crossing my desk in which the originating events are
four or five years old. I would like to see cases coming through
more quickly. We need to be able to deal with them efficiently
to maintain our professional standards. I think the new Ombudsman
institution will have an effect on working methods. It will not,
for example, force us quite so much into this mould of everything
being an investigation, either yes, we investigate or no, we turn
you away. It will have less effect, I think, on the working methods
of the Health side. I think it is more important to look at the
work of the Office in the context of dealing with NHS complaints
as a whole.
18. Last week Christopher Leslie was before
the Committee, and he was setting up timetables for looking at
the way the Ombudsmen should be reviewed, etc. Do you feel that,
from what you have heard so far, we are doing it the right way?
Are you happy with what you hear?
(Sir Michael Buckley) I am happy with the substance.
I very much supported, for example, the conclusions of the Collcutt
Review. From the exchanges I have had with the Cabinet Office,
I think they are addressing the right issues. My concern is the
amount of time that it is taking, and I really do not understand
why. Mr Leslie said, "Oh, well, it took a long time from
the Whyatt Report through to having the Ombudsman institution,
but with respect, that is a truncated view of history". The
Whyatt Report was published in October 1961, and the Conservative
administration of the day dealt with it with commendable speed
and despatch, even if one might not agree with their stance that,
"We do not need an Ombudsman institution and we are not going
to do anything." One knew where one was. The idea resurfaced
in a speech by Mr Harold Wilson, who was then Leader of the Opposition,
in July 1964. It was in the party's election manifesto in October
1964, and they presented legislation to parliament in February
1966. That is pretty good. It is possible to do these things even
now, with more elaborate consultation procedures. In Scotland
the Scottish Executive produced a consultation document in October
2000, a further consultation document in July 2001 and legislation
is now going through the Scottish parliament. So these things
can be done. I really do not understand why it is taking the Government
and Whitehall so long to get on with these things.
19. If you were looking at the theory of this,
if you were a Le Carré writer, why do you think it is the
case? I agree with you. I cannot see the problem. I asked Mr Leslie
last week what the problem was and did not get a very satisfactory
answer. What is your view?
(Sir Michael Buckley) I am not a believer in conspiracy
theories. I think it is partly that Ombudsmen perhaps are regarded
by the Government as rather a nuisance and rather-old-fashioned.
There is no problem about new institutions while you wait, but
we are an old-fashioned institution, perceived as 1967 creatures.
I do not think that is true. I think that we are capable, with
good legislation, of being a fairly modern and satisfactory institution,
but I think it is lack of priority rather than some deep laid
plot to put things off and avoid creating a new institution.