Fatal extraction: New Health Service Watchdog has all teeth removed.

After a prolonged wait, the draft legislation for the new Public Service Ombudsman has been released by the Cabinet Office.

They have taken their time to slowly extract any teeth the already deficient Ombudsman had and present a proposal for a combined Health, Parliamentary and Local Government Ombudsman that will have fewer powers than any other UK Ombudsman Service.  Most significant is the fact that public bodies will only be required to ‘take account’ of investigation findings and have no obligation to take any action.   All the old loopholes have been retained such as finding harm caused by maladministration, total discretion of the Ombudsman to act as she sees fit and no external audit of the investigation process.  An Ombudsman better to serve the public?  See the facts for yourself.

Review of the draft legislation for the proposed

Public Service Ombudsman 

By Della Reynolds – phsothefacts

January 2017

 

draft_public_service_ombudsman_bill_Dec_2016

(page numbers are those given at the bottom of each page) 

The establishment of a new Public Service Ombudsman (PSO) fifty years after the original legislation provides government with a rare opportunity to ‘better serve the public’ as heralded by the preliminary Robert Gordon review.  Unfortunately, after the long wait for this proposal it is seriously deficient in terms of reform and appears to be no more than a money saving merger between PHSO and LGO which will result in a single ombudsman appointment and a reduction in staff.

Members of PACAC will be only too aware of the anguish caused to members of the public from poor investigation processes and the frustration of trying to hold the current ombudsman to account.  All the deficiencies of the previous legislation, which have facilitated this state of affairs, have been transferred into the draft legislation for PSO.  On this basis, the current proposal will do nothing to improve service delivery or public satisfaction and requires significant amendment.

Chris Skidmore, Minister for the Constitution suggests in the foreword that the proposals will deliver an, “independent and strong ombudsman who can launch an impartial investigation.”  However, an analysis of the draft legislation does not support this statement.

Harm caused by maladministration:

 

1 Overview of Act

1. The purpose of an investigation by the Ombudsman is to establish—
   1. whether the matter complained of involved maladministration or a failure on the part of the authority to which the complaint relates, and

1. if it did, whether the person by or on behalf of whom the complaint was made suffered injustice or hardship as a result of the maladministration or failure. (p7)

 

An investigation based on harm caused by maladministration is a flawed model and should not have been transferred wholesale without consideration of how this requirement has consistently failed the public.

 

• There is no definition of maladministration so the public are unable to assess the validity of their case against given examples.
• Although ‘maladministration’ cannot be defined this woolly concept is used to determine uphold. Without uphold no learning takes place.
• There is no consistency as ‘maladministration’ is decided on a case by case basis.
• Breaches in statutory and non-statutory policies are not considered to be automatic maladministration. These policies should be mandatory as they exist to ensure safety and good service delivery to the public.
• The connection between maladministration and harm is a subjective one and it is possible for the ombudsman to determine, with an insight beyond human powers, that the harm would have been the same in any event.
• Finding maladministration does nothing to check systems and processes, which may be flawed and dangerous.

 

Discretion:

 

The Board of the Public Service Ombudsman

 

4. The functions referred to in subsection (3) include, in particular—
   1. those involving the exercise by the Ombudsman of a discretion relating

to any of the following— 30

1. whether to investigate a complaint;
2. how to carry out an investigation;

• how and when to conclude an investigation;

1. what action to take following an investigation, and (p8)

 

• The discretion of the ombudsman has not been balanced with a requirement to apply the most appropriate statutory or non-statutory regulations to an investigation. The ombudsman can apply whichever regulations she sees fit.
• There is no obligation to ensure that the key concerns of the complainant are addressed in the report and not scoped out. The ombudsman has total discretion on which aspects to investigate. In 2015/16 only 38% of complainants felt that the ombudsman had dealt with the most important aspects of their complaint. (p42) 2015-16-Annual-Complainant-Feedback-Report

 

• There is no obligation to ensure that ombudsman decisions are evidenced based and that public body assurances are substantiated or rejected. In 2015/16 only 34% of complainants reported that the final report provided evidence to support the decisions made. (p42) 2015-16-Annual-Complainant-Feedback-Report
• Total discretion means that the ombudsman cannot be held to account under judicial review as she has been given the legal right to ‘act as she sees fit’. Unaccountable bodies are able to act with impunity.

The investigation process: 

4       Power to investigate complaints

(2.c) it is made to the Ombudsman before the end of the 12-month period beginning with the day on which the affected person first became aware of the matter alleged in the complaint. (p9)

·      This is a serious loophole which needs to be closed.  People are often not aware of ‘the day’ on which they first became aware.  Sometimes it can come after a period of reflection or as further information comes to light.  This clause has been used to the detriment of the public when the ombudsman refuses to accept the time of first knowledge given by the complainant.  For clarity it should be within 12 months of receiving the final closure letter from the public body as this does have a specific date.

·      In relation to time it should also be the case that the public can approach the Ombudsman earlier in the process to request intervention and Alternative Dispute Resolution (ADR) options.  The learning is more effective if it occurs closer to the time of the incident.  In Scotland it is possible to approach the Ombudsman after 20 days.

• (5) The Ombudsman may begin or continue an investigation into a complaint even if the complaint is withdrawn. (p9)

 

• It should be for the complainant to decide if they wish the investigation to continue. When people lose confidence in the Ombudsman service and wish to take court action they should not also have to dispute a flawed ombudsman report where they have not agreed the findings.

 

7 (4)     The Ombudsman may investigate a complaint only if satisfied that—

(4.a) the complaint has been brought to the attention of the designated authority to which it relates by or on behalf of the affected person, and

(4.b)the designated authority has been given a reasonable opportunity to investigate and respond to it. (p11)

 

• ‘Reasonable opportunity’ should be time bound to prevent authorities from delaying the process past the 12 month time limit or beyond opportunity for court action.

 

9 (1) The Ombudsman may not question the merits of a decision taken without maladministration by a designated authority in the exercise of a discretion. (p12)

 

• Many discretionary decisions lead to action or inaction which causes untold harm. What mechanism is there to evaluate discretionary decisions?  When first established, private ombudsman services such as the Pensions Ombudsman and Insurance Ombudsman had powers to examine discretionary decisions which made these bodies powerful champions for the consumer.

 

10 (4) The investigation must be carried out in private. (p12)

 

Evidence in proceedings  –   Schedule 5

 

7 A person may not be required to give evidence in any proceedings (other than proceedings mentioned in paragraph 3(1)(h) or proceedings under section 12) of relevant information obtained by that person as mentioned in paragraph 1(a) or (b).  (p46)

• The ‘privacy’ rule has been used to deny the complainant access to information during the investigation process before a decision is made.  The public have been unable to put the record straight until it is too late.

 

• The privacy rule, coupled with the evidence in proceedings rule has been used by the Metropolitan Police to deny investigation into Misconduct in Public Office offences referred to them by members of the public, effectively putting ombudsman staff, who are Crown Servants, above the law. This is in direction opposition to the rule of law which states that no-one is above the law.

 

11 (7)  person may not be required or authorised by virtue of this section to provide information or to answer any question relating to proceedings of the Cabinet or of any Cabinet committee. (p13)

 

• The Cabinet Office provide themselves with immunity to investigation by the supposedly independent Ombudsman!

 

• (8) designated authority must have regard to any recommendations contained in a statement under subsection (1)(c) in respect of the authority (but is not required by virtue of anything in this Act to give effect to any such recommendations). (p16)

 

• To ‘have regard’ is permission to ignore and the whole investigation process will have been a futile waste of money. There must be some compulsion on public bodies to comply with the findings or to put in writing to the select committee the reasons for decline. This clause makes the ombudsman totally powerless if faced with non-compliance.  The Welsh Ombudsman by contrast can issue a certificate to the High Court for wilful disregard of his report without lawful excuse.  (p11)  Public Services Ombudsman (Wales) 2005

 

Persons within scope of Ombudsman’s jurisdiction

 

• (1.c) person (other than a local authority) who exercises public functions, or provides services in the exercise of such functions, in relation to a particular local area; (p20)

 

• This is ambiguous and it needs to be made clear that all those delivering public services using taxpayer funds are within the jurisdiction of the ombudsman. Currently, it has been determined by PHSO that NHS staff, working within an NHS facility and being paid for by the state are working in a ‘private’ capacity and therefore cannot be investigated.  This loophole must be closed, particularly in view of the increasing privatisation of public services.

The Ombudsman as complaint Champion:

• (1) The Ombudsman must provide information, advice and training to designated authorities with a view to promoting best practice in the handling by such authorities of relevant complaints. (p23)
• Due to its own inadequate investigation procedures the Ombudsman is currently not in any position to give advice on promoting best practice complaint handling and this may be better delivered by the new Healthcare Safety Investigation Branch (HSIB) when it becomes active later this year.
• The Scottish Ombudsman has been given powers to enforce good complaint handling and operate as a Complaint Standard Authority in their 2010 legislation. Acting as a ‘Champion’ will not give PSO any powers of enforcement.
• Government needs to unify the Health Service so that good practice is automatically shared and not allow each area to apply its own complaint handling procedures, which is currently the case.
• Data is needed in a standardised and accessible format so that the authorities and the public have access to real time information on complaint handling. A data revolution was promised by Oliver Letwin whereby all authorities would be required to put complaint handling data into the public domain.  This important aspect seems to be missing from the new proposals.  On the subject of data, the current policy of the ombudsman is to destroy evidence 12 months after closure of the case.  This short retention span makes it impossible to spot recurring patterns or failure hot spots.  In order to gain an overview this policy should at least be brought in line with statutory archive procedures which are six years retention.  This important issue must be addressed in the legislation which has so far remained silent on the matter.

 

Accountability of the ombudsman:

 

The ombudsman is required to lay an annual report before the House and essentially a review of this report is both the start and end of scrutiny by parliament.  The proposal states the following;

Schedule 1

6  (3) The information referred to in sub-paragraph (2)(a) may in particular include information about—

1. how many complaints were received by the Ombudsman during the financial year,
2. how many of those complaints were properly made or referred to the Ombudsman (see sections 4 and 18),
3. how many of the complaints mentioned in paragraph (b) were investigated by the Ombudsman during the financial year,
4. how designated authorities have responded to reports made under section 14(1)(c) in respect of them, and 20
5. any other matters the Ombudsman considers appropriate. (p30)

 

• Absent from this list is a record of the total number of complaints made about the Ombudsman herself. The total number of review requests, how many were provided with review and how many were upheld.  The number of complaints fully upheld as a separate distinction to those partly upheld. Also clear guidance as to the difference between ‘enquiries’ received and ‘complaints’ received.  The continual blurring of these distinctions makes it difficult to determine the percentage of actual complaints investigated.

 

• All complaints about the Ombudsman and reviews are handled internally and there is no provision within these proposals to provide proper independent scrutiny of the investigation process. This again is a significant oversight, if indeed the intention is to ‘better serve the public’.

 

There is a proposal to set up a ‘modern governance structure’ to give greater accountability to the ombudsman service.  The key element in creating a board to hold the ombudsman to account is the selection of the chair and board members.

Membership –   Schedule 2

1. (1) The Board is to consist of—
   1. persons who are not employees of the Board (“non-executive members”) (see Part 2),
   2. the Ombudsman (see paragraph 10), and
   3. persons who are employees of the Board (“employee members”) (see paragraphs 11 to 13).

1. The number of members of the Board is to be determined by the person appointed under paragraph 2(2) to chair the Board (“the chair”) with the agreement of the Public Accounts Commission.
2. The majority of members of the Board must be non-executive members.
3. The following are executive members of the Board—
   1. the Ombudsman;
   2. the chief executive (if different from the Ombudsman);
   3. the employee members. (p31)

 

Her Majesty via the Public Accounts Commission determines the selection of the non-executive chair.  The chair then ‘recommends’ individuals to the Commission for places on the board.  The CEO of the board is automatically the Ombudsman who is also the Accounting Officer.

 

• This looks very much like a closed shop. One safe pair of hands recommending another.  Boards such as this have consistently failed to hold bodies to account and instead become the first line of defence, using their position to limit reputational damage.

 

• There can be no public confidence that such a board would make any significant difference to the accountability of the ombudsman, despite the following statement regarding monitoring.

 

Monitoring service provided by Ombudsman Schedule 2  (23)

(1) The Board must monitor the carrying out of the Ombudsman’s functions under this Act, with particular reference to the quality and efficiency of the service provided by the Ombudsman and the desirability of securing improvements in that service.

• The Board must perform the duty under sub-paragraph (1) in accordance with a scheme prepared by the Board.
• The Board—

1. must submit a scheme under sub-paragraph (2) to the Public Accounts Commission, and
2. must revise the scheme in accordance with any representations made by the Commission.

(4)The Board must inform the Commission about any findings the Board makes in performing its duty under sub-paragraph (1).

(5)Nothing in this paragraph entitles the Commission to question the merits of action taken by the Ombudsman in a particular case. (p37)

 

The board is required to monitor the quality and efficiency of the service provided, but it is unclear whether they will have the collective expertise to do so.  The board will have power over staff and resources but what power does the board have over poor quality of service, if they can only report their findings to a Committee who are legislatively unable to take any action?    If there is serious intent to use the board to hold the Ombudsman to account then this proposal falls short of the mark.  The public would have more confidence in a board which consisted of front-line staff, union representatives, interested charities such as AvMA and the Patients Association and service users.  This would be more in line with the, “vibrant democratic society where public services work for everyone” promise made by Chris Skidmore in the opening to the draft legislation. The board will be unable to hold anyone to account for poor service delivery without the parliamentary committee having the power to take action following receipt of unfavourable reports.

 

Disclosure of information:  (aka The Secrecy Schedule)

 

Schedule 5 allows the Ombudsman and Ministers to make decisions concerning the release of information.  It is difficult to see how any learning could be the result of processes which so completely lack transparency or any reference to duty of candour, as those outlined here.  The ability to maintain secrecy where information is regarded as ‘privileged’ will make it impossible to hold individuals to account, or deliver remedy, which is counter to the core ethos of the ombudsman service.

Privileged information – Schedule 5

 

1. Where the Ombudsman obtains relevant information from a designated

authority or other person by virtue of section 11(6) (which prevents a designated authority from relying on privilege in relation to the production of documents or the giving of evidence), the Ombudsman must not disclose—

1. the fact that the Ombudsman has obtained such information, or
2. the information itself,

unless the designated authority consents to the disclosure.

 

Disclosures contrary to public interest

 

1. (1) A Minister of the Crown may give notice to the Ombudsman that, in the Minister’s opinion, the disclosure of information specified in the notice would be contrary to the public interest.

(2) Where a notice is given under sub-paragraph (1), nothing in this Act is to be read as authorising or requiring the Ombudsman or any other person to disclose the information—

1. to any person, or
2. for any purpose.

• The Ombudsman may apply to the High Court (or, in Scotland, the Court of Session) for permission to ignore a notice given under sub-paragraph (1).

Evidence in proceedings

 

7. A person may not be required to give evidence in any proceedings (other than proceedings mentioned in paragraph 3(1)(h) or proceedings under

section 12) of relevant information obtained by that person as mentioned in paragraph 1(a) or (b).

Restriction on further disclosure

8. A person to whom relevant information is disclosed by virtue of paragraph 3(2)

1. must not use the information except for the purpose for which it was disclosed, and
2. must not disclose the information to any other person unless the designated authority to which the information relates consents to the disclosure.  (p46)

 

Absent from the proposals:

 

• Any reference to staff training needs and levels of expertise required to manage rising numbers of complex medical complaints.

 

• Any suggestion that Health Service Complaints should be allocated their own service within the umbrella of PSO with a designated lead Ombudsman equipped with suitable expertise.

 

• Mention of Alternative Dispute Resolution (ADR) models and how to incorporate these into the new PSO service.  Need for standardisation of ADR providers. Specific training required for Ombudsman staff in selecting or delivering mediation.

 

• Increasing privatisation of public services and the issue of access to information from bodies not covered by the Data Protection Act.

 

• A proposal to make it a requirement for public bodies to disprove allegations rather than place the burden of proof on the individual citizen with limited access to the evidence. (Presumption of honesty)

• Any duty to identify and notify patterns of failure (presently hampered by shortage of data and short Ombudsman retention policy).

• Power/duty to initiate or direct others such as CQC to investigate systemic failures.

Currently, this proposed legislation will deliver an ombudsman who has such limited powers and resources that it would be better to scrap the service altogether than give false hope to the public that they will be able to depend on a strong, independent ombudsman able to deliver an impartial investigation.  The ombudsman service will be restricted in what it can investigate, how it can investigate, who it can report to and most importantly will have no power to deliver change.  It will have to negotiate and compromise with public bodies in order to claim any justification for its existence.  A far cry from the recent promise of Theresa May to tackle the burning injustices that undermine the solidarity of our society. the-shared-society-article-by-theresa-may

 

This review of the draft legislation for the new Public Service Ombudsman has been undertaken by members of the public; previous service users who have all been failed by ombudsman service.  We are not legally trained and may well have further comment to make once the full legal implications become apparent at scrutiny.  We are able to offer unique insight into the failures of the previous legislation and consequently wish to take an active part in the scrutiny process to ensure that the new Public Service Ombudsman really does ‘better serve the public’.