Examination of Witnesses (Questions 20-39)|
THURSDAY 7 FEBRUARY 2002
20. Given the increase in complaints and worriesand
that is probably going to continue, I suspect, and you would agree
with thatis 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.
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
(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 thinkbecause I know
that these matters are discussed at very senior level, and therefore
they show what the attitudes are at senior levelis 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.
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?
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 resolvethe
modern wordthe 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.
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 haveas 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 againand
we mentioned one earlierwhy 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 Ombudsmanany Ombudsman
organisationwill 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.
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.
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
(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
(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.