We live in a cover up culture. The instinct to bury bad news starts at the top and permeates down like corrosive rust. It generally takes a scandal for those in authority to face up to their responsibilities. Action will usually consist of a series of reviews resulting in the strengthening of regulation to ensure that ‘it never happens again’. But far too often it does happen again whether it be child abuse, hospital failure or flooding; the lessons never seem to be learned.
The delay between scandal and implementation is part of the problem. The endless reviews continue until the heat dies down and few remain to scrutinise the offered solution. Initial talk of doing ‘whatever it takes’ ends up as watered down regulation which is both ambiguous and impotent. Failure to clearly define terminology provides future loop-holes and reluctance to grant binding powers leave regulatory bodies with more bark than bite. Against this background we face a danger that the new legislation to create an effective Public Service Ombudsman could become classic ‘Yes Minister’ administration; a smokescreen of ineffective action which over time leads to a whole new scandal.
The original Ombudsman legislation sprang from the Crichel Down Scandal (1954). Back in 1938, 725 acres of land was acquired under compulsory purchase order in Dorset to provide bombing practice for the RAF. There was a promise to return the land to the original owners for an equivalent purchase price after the war. Unfortunately, this promise was not kept and the land was handed over to the Ministry of Agriculture. After a public inquiry in 1957 Franks Report the land was returned to the rightful owner, however, the report triggered a debate concerning the abuse of Ministerial power.
“In the history of modern parliament, the Crichel Down affair takes on momentous significance, and has been described as a ‘political bombshell’. The public inquiry into the Crichel Down events revealed a catalogue of ineptitude and maladministration and resulted directly in the resignation of the Secretary of State for Agriculture (Sir Thomas Dugdale), then a senior cabinet position, and was the first case of Ministerial resignation since 1917. Whilst the underlying case was, in the scale of things, trivial, involving the transfer of some seven hundred acres of mediocre agricultural land in Dorset, the ramifications for subsequent government procedure have been enormous, and it is regarded as one of the key events leading to the creation of the post of Ombudsman. Crichel Down was probably the first instance of close and very public scrutiny being directed at a Minister of the Crown in the execution of his duties.” Crichel Down affair
It took another ten years to deliver the legislation for a Parliamentary Commissioner, later known as the Ombudsman. A key report in this process was that of Sir J. Whyatt, ‘The Citizen and the Administration: The redress of Grievances.’ (1961) known as The Whyatt Report. The Foreword, written by Sir Oliver Franks who had previously carried out the Crichel Down public inquiry gives good background to the need for an independent body to deliver redress to the public and rebalance power between the individual and the State. This review concluded that for large parts of government there was no machinery by which the citizen could make a complaint and no consistency across departments regarding complaint handling. Importantly, both Franks and Whyatt concluded that there needed to be protection from the poor use of administrative discretion as well as specific acts of maladministration. The report stated that two different types of redress should be established; an appeal to a tribunal for use of discretion which led to injustice and the implementation of an independent Ombudsman with wide ranging powers to investigate and report on maladministration.
“We have stated that the complaints which come within our terms of reference fall into two categories, namely, complaints against discretionary decisions and complaints of maladministration, and we have pointed out that because of their different character it is necessary to provide different machinery for dealing with them.” (The Whyatt Report p79)
“…the guiding principle should be that the individual is entitled to have an impartial adjudication of his dispute with authority.” (Whyatt Report p55)
The Whyatt Report quite rightly determined that much injustice was delivered to the citizen due to the inappropriate use of administrative discretion. Failure to act in a timely manner or failure to take the most appropriate action is often described in public inquiry reports as ‘missed opportunities’. These actions undoubtedly led to the ensuing disaster, but often fail to be judged as maladministration. When policies and procedures are only guidelines, proving maladministration is extremely difficult. There is rarely a smoking gun, more often a trail of error and ineptitude. Providing the opportunity for citizens to seek redress for poor administrative decisions through independent tribunal was always more likely to provide redress than the cumbersome investigation process; yet this key aspect of the Whyatt report was never implemented.
The Parliamentary Commissioner Act was passed in 1967, since then there have been periodic administrative scandals that might have been addressed earlier, or even prevented, had there been a more proactive ombudsman scheme in place or a more powerful system of administrative justice. In 2009 a new scandal hit the headlines. The Healthcare Commission (HCC) report into care at Mid Staffordshire Hospital confirmed that appalling management and substandard care led to a significant number of avoidable deaths. Due to the successful campaign of Julie Bailey this led in turn to a Public Inquiry which was announced in 2010 and reported in 2013.
The Healthcare Commission (HCC) was unfortunately disbanded in 2009 and the responsibility for monitoring given over to the Care Quality Commission (CQC). This further reduced the opportunity for public redress as unlike HCC the new CQC body were unable to investigate individual complaints. Citizens who were dissatisfied with the internal handling of their health complaint now had only the Health Service Ombudsman to turn to. Reporting on Mid-Staffs, The Francis Report found that all the regulatory and watchdog bodies had failed to avert the unfolding scandal. The Health Service Ombudsman did not investigate a single complaint regarding Mid Staffs during the time span considered by the inquiry, including that presented by Julie Bailey herself. PHSO handling of complaints data This news may have come as no surprise to those in authority, but now that it was in the public domain action needed to be taken to restore public confidence and a flurry of investigation reports emerged.
Part of the problem was lack of information in the public domain. Many individuals are unaware of the services provided by the Ombudsman and even in the 2014/15 Annual Report PHSO stated that public awareness of the Ombudsman had risen from 19% to just 22%.
Back in 1961 The Whyatt Report found that only government departments were aware of the number of complaints made against them and the impact of those complaints as these were not reported to the public. In 2011, despite the widespread use of the internet, this was still largely the case as duly recorded in a White Paper entitled Open public services The coalition government used this White Paper to prioritise the reform of public services aiming to create a more equitable society. The promised improvements would come through increased public accountability and this would be delivered through the provision of open data, so that citizens could make informed choices over their service provider, applying the pressure of market forces.
“Throughout this paper, we will explain just how our reforms give power to those who have been overlooked and underserved. We will also demonstrate that it is only by publishing data on how public services do their jobs that we can wrest power out of the hands of highly paid officials and give it back to the people. And our reforms will mean that the poorest will be at the front of the queue.” (p5)
The provision of open data was to include all providers delivering public services and helped set the scene for privatisation of the public sector.
“So reform of public services is a key progressive cause. The better our public services, the more we are helping those most in need. That is why those who resist reform, put the producer interest before the citizens’ needs, and object to publishing information about how services perform are conspiring to keep our society less free, less fair and less united.” (p5)
These hard-hitting statements from the Coalition appear to overlook the fact that private contractors are currently under no obligation to release information under the Freedom of Information Act 2000 and there has been no move to bring them in line with public bodies in this regard. In fact, rather than facilitate the release of open data, in 2015 the now Conservative Government initiated a consultation on restricting the powers of Freedom of Information making it more difficult for citizens to gain access to data.
Releasing information regarding the performance of public bodies and in particular complaint handling data is undoubtedly a good thing, but this would not of itself improve choice. Once a private contractor is chosen to carry out a role then the public body ceases to deliver the same service. A private monopoly is created to replace the public one and citizens have no control over which private body wins the contract.
The 2011 White Paper was full of good intentions such as;
“… we are strengthening the powers of local councils in relation to the NHS, where Overview and Scrutiny Committees will have the power to scrutinise local NHS providers, public, private and voluntary. This is an example of democratic accountability and oversight in individual services.” (p24)
The question is how do these LA scrutiny committees dovetail with the work of the Health Service Ombudsman, Healthwatch, CQC or Monitor? Where is the joined up thinking and what powers do they have to enforce change?
There was also signposting to a review of the Parliamentary and Health Service Ombudsman’s (PHSO) role, again with a focus on improving choice.
“We will establish how the Ombudsmen can play a greater role in supporting the ability of individuals to exercise choice in specific services. As part of this, we will explore with the Ombudsmen and others:
- whether all services are appropriately covered by Ombudsmen;
- the requirements, process and/or thresholds under which an individual can seek redress from an Ombudsman;
- their resources and powers of enforcement, including in areas where they could play a role in supporting choice; and
- giving more profile and transparency to the work of the Ombudsmen. (p23)
In 2013/14 the Public Administration Select Committee (PASC) produced two reports following inquiries into the performance of PHSO, More Complaints Please! and Time for a People’s Ombudsman In July 2014, the Right Hon Oliver Letwin responded on behalf of the government to these reports as part of a Cabinet Office review of the Ombudsman landscape. He returned to the theme of ‘open data’ with the following statement.
“The first project will focus on constructing the online systems that are needed to enable people to make complaints in a way that is structured and precise – thereby providing the transparent data that will enable everyone (public sector staff, managers and users alike) to see and compare the patterns of complaints in the public services. The aim of this transparency is to create real pressure for a change of behaviour and ethos. Rather than regarding complaints as a ‘nuisance’ that needs to be ‘dealt with’, I want each part of the public service to see information about the pattern of complaints as an enormously useful tool for spotting exactly what needs to be improved in order to serve the users better.” (p3) Government Response to PASC
He reported that a trial was under way using the Department of Works and Pension and the Land Registry as models for an open data portal on complaint handling. Over a year later there are no obvious signs of complaint data on the Land Registry website and the DWP site merely states the total number of complaints received and reviewed. Complaints about DWP
It would indeed be a step forward if all public bodies released, in real time, the number of complaints received, the number resolved to the satisfaction of the complainant and the action taken as a result. However, the successful roll out of open data will need careful scrutiny by parliament if headlines such as the one published on 3rd December 2015 are to become a thing of the past.
£830m border watchlist system breaks down twice every week
Despite the rhetoric, governments continue to struggle with harnessing the power of I.T. although they must have access to the most advanced software and advice. In June 2015 Tim Kelsey, the National Director for Patients and Information spoke with enthusiasm to the Kings Fund about the digital revolution which would allow patients to access their health records on-line. Personal access to medical records will be a major step forward for those who make a complaint. Missing records are a key reason complaints fail to be investigated by the Health Service Ombudsman who state that they are unable to determine the evidence. Unfortunately, just a few months after this announcement and with the digital revolution about to go live, Mr. Kelsey decided to leave NHS England for an appointment with Telstra Health an Australian company. One can only speculate as to the reason why.
The other Cabinet Office project was a review of the Ombudsman Landscape and in October 2014 Robert Gordon CB delivered his report; Better to Serve the Public: Proposals to restructure, reform, renew and reinvigorate public services ombudsmen.
After many years of debate, it has finally been accepted that new legislation is required to bring the Ombudsman service into the 21st Century and accordingly time was set aside in the Queen’s speech in May 2015. It has taken 48 years to find a government willing to commit legislative time to this project and this historic review catalogues the repeated calls for action due to inadequacies with the Ombudsman service.
Finally, MPs can have an impact on legislation which goes to the heart of the democratic process.
In the spring of 2016 the Cabinet Office will release draft legislation to provide a new Public Service Ombudsman as a single portal to make complaint handling easier for the public. So what is on the table? Not nearly enough is the short answer. Given the call for open data and empowerment of the citizen the Gordon review was a very narrow affair. Annex B demonstrates that service providers and official monitors were consulted to the exclusion of members of the public and service users.
In March 2015 a public consultation opened regarding the findings of the Gordon review. Yet when the government response was published in December 2015 no individual members of the public were identified in Annex A as contributors. There is significant public interest in this subject as demonstrated by A Which? campaign to improve complaint handling across the NHS, including that of the Ombudsman service, which has received over 98,000 signatures.
So where is the public debate?
158 responses were received, but none have been published in full. Instead, a summary has been produced where responses fitted within the parameters of the original questions. There is great concern among service users that the consultation has so far failed to deliver the opportunity for a full debate and open transparency. PHSO Pressure Group response to consultation Most notably there is concern that the original recommendation of the Gordon Review to establish a steering group to deliver the new Ombudsman legislation has been dismissed by the Cabinet Office leaving the executive with sole responsibility for this process. A cross-party committee with representatives from stakeholders would be a more democratic alternative.
Behind closed doors, the draft legislation is currently being prepared to provide an effective Ombudsman service for the 21st Century. As it stands the proposals do not go nearly far enough to restore public confidence.
It will be for parliamentarians to question and refine this legislation and ensure that the public is served by it.
The Gordon review starts with the acceptance that;
- a citizen centred Ombudsman is a vital part of the redress landscape, but that the present legislation diminishes the role that the Ombudsman can play.
- the current Ombudsman landscape is complex and poorly understood.
- strong need to consider the most cost-effective means of delivery whilst maintaining public confidence.
Using reports from the PASC inquiries and others; notably that of the Law Commission (July 2011) the Gordon review put forward the following recommendations:
- That the Ombudsman be the final tier of complaint redress for citizens as it is now.
- New powers to champion and monitor complaint handling standards.
- New responsibility to be an agent for public service delivery improvements.
- Agreement to removal of the MP filter.
- Agreement to giving the Ombudsman own initiative powers of investigation.
- That legislation provides for a new single Public Service Ombudsman (PSO) encompassing UK Parliamentary Ombudsman, Health Service Ombudsman, Local Government Ombudsman and Housing Ombudsman.
- PSO jurisdiction is defined in statute to follow the ‘public pound’.
- Accountability to parliament should be divided between Public Accounts Committee (PAC) for costs, performance against targets and budget setting and Public Administration and Constitutional Affairs Committee (PACAC) for delivery and dissemination of reports to drive public sector reform.
Neither the Gordon Review nor the subsequent government response discuss the difficulties encountered by complainants due to the cumbersome investigation process which requires the Ombudsman to find maladministration when the criterion for maladministration is not defined. In each case this is a value judgement taken by a lay-investigator and one the Ombudsman is reluctant to make. (Only 10% of investigations received a full uphold in 2014/15) Without a finding of maladministration there can be no remedy and no improvement to service delivery. Most often injustice has been delivered through the inappropriate use of discretion rather than specific maladministration, as identified by Whyatt in 1961, yet there is currently no intention to rectify this oversight. Also absent is the fact that a cost effective way to improve services and provide timely remedy would be to initiate Alternative Dispute Resolution or mediation practices in line with E.U. consumer legislation. This approach would be more in line with the original tribunal recommendation and have the flexibility to review the use of discretion; protecting future citizens from the blight of unaccountable decision making.
To date the consultation process has failed to address key issues such as the Patients Association call for a specific ‘Code of Practice’ by which the Ombudsman could be held to account or the Health Select Committee call for an external audit of decisions and reports.
In fact on accountability it is pretty vague, yet lack of accountability
undoubtedly led to the Mid Staffordshire scandal.
Given that the handling of health service complaints has received the most media attention, there is limited emphasis placed on the skill base of Health Ombudsman investigators. The members of HSIB the new Healthcare Safety Investigation Branch will be highly qualified clinicians and experts in their field, but HSIB will only investigate about 30 cases a year. Thousands of others will continue to be handled by the Health Service Ombudsman, as a desk exercise, carried out by individuals with no clinical expertise. This issue is of vital importance to restoring public confidence, but has yet to be given the attention it deserves.
There are also wider issues to consider such as the demise of the second tier investigation stage with the removal of the Healthcare Commission and before them the Community Health Councils which provided local tribunals for health care complaints. Was it ever appropriate to expect the Health Service Ombudsman alone to be able to deal with an increasing number of complex health complaints?
“The Secretary of State for Health estimates there are 12,000 avoidable hospital deaths every year. More than 10,000 serious incidents are reported to NHS England, out of a total of 1.4 million mostly low-harm or no-harm incidents annually. There were 338 recorded “never events” (such as wrong site surgery) during 2013-14 and NHS England received 174,872 written complaints.” Investigating clinical incidents
Changes to legislation give the opportunity to provide a designated Health Service Ombudsman for England, in line with devolution and staffed by healthcare professionals. This has yet to be discussed.
Richard Kirkham, a recognised national and international authority on the ombudsman institution, suggests that the consultation so far looks more like a merger than radical reform. He comments that much has been sidelined by the government response such as the dilemma of devolution and the option to provide local Ombudsman offices for face to face consultation with the public. He is hopeful that improved governance structures will lead to greater accountability, but quite rightly points out that the tricky issue of who conducts the appointments and who wields the authority have yet to be decided.
As it stands this proposal is unsatisfactory and the public will be relying upon parliamentarians to speak up and make a difference in a debate which has raged on and off for the last 48 years. Unless we have active parliamentary scrutiny on this important matter there is a strong possibility that this new legislation will become just another ‘missed opportunity.’