House of Commons - Public Administration

Select Committee on Public Administration First Report

FIRST REPORT

The Select Committee on Public Administration has agreed to the following Report:—

ANNUAL REPORT OF THE HEALTH SERVICE OMBUDSMAN FOR 1998-99

1. The Health Service Commissioner (HSC), usually known as the Health Service Ombudsman, investigates complaints about the National Health Service. He is completely independent of the NHS and offers a service which is free of charge, confidential and open to all, provided only that complainants have first taken up problems at a local level. He investigates complaints about failures in service, including clinical failures, and maladministration - whether by local hospitals, clinics, surgeries (including dentists) or Health Authorities - and has complete discretion over whether, and how, to investigate.

2. This is the second Report of this Committee on the Annual Report of the Health Service Ombudsman since 1997, when it absorbed the role of oversight of the Ombudsman's Office as part of the functions of the former Select Committee on the Parliamentary Commissioner for Administration. As always, we are grateful to Mr Michael Buckley, the Health Service Ombudsman, and his Deputy, Ms Hilary Scott, for their evidence to the Committee and their guidance during other evidence sessions, and to the staff in the Ombudsman's Office for their assistance, both formal and informal, throughout the year.

3. It is the usual practice of the Committee, having heard evidence from the Ombudsman himself, to pursue a number of cases suggested by his Annual Report which illustrate particular themes or raise important issues. We would particularly like to record our gratitude to the complainants (whose names of course may not be released) in both the cases on which we took further evidence, who have greatly assisted us throughout our inquiry.

4. We are grateful also to our witnesses from the three Authorities (two Health and one Local Government) complained against. We recognise that it is difficult to come before a Committee of the House and give evidence on matters for which the individuals concerned are often not directly or personally responsible. Nevertheless, it is crucial that, where some aspect of public service has gone awry, someone is in a position to account for it, frankly and publicly. We were therefore particularly concerned to receive evidence subsequent to our session with witnesses from Herefordshire Health Authority suggesting that a gloss had been put on responses to us which the facts do not substantiate. We discuss this in greater detail in paragraph 12 below.

THE WORK OF THE OFFICE OF THE HEALTH SERVICE COMMISSIONER

5. The work of the Health Service Ombudsman, like that of the Parliamentary Ombudsman, continues to increase year by year. Mr Buckley told us: "My Office is accepting an increasing percentage of complaints for investigation ... The take-up rate has increased from 4 per cent to 7 per cent ... If non-investigable complaints are excluded from the data ... the take-up rate is 20 per cent."[11] There are perhaps three main causes for the increased activity:

the number of complaints received by the Office has risen[12] (partly as a result of the extension of jurisdiction in April 1996 to include family health service practitioners and matters of clinical judgement);

there is an expectation that an increasing proportion of complaints should be accepted for full, formal investigation (though such investigation remains the outcome only in a very small proportion of complaints received);[13] and

the Ombudsman is adopting a more flexible approach where the case seems to warrant it, and making inquiries on behalf of the complainant which stop short of full investigation[14] but which nonetheless have implications for staff time.

6. This is the first reporting year when investigations of complaints involving clinical judgements form the majority.[15] This relatively new focus on clinical complaints, which Mr Buckley told us would now form the core business of his Office,[16] will also mean a new emphasis and different priorities for the work of the Ombudsman. It is still too early to tell what the effect will be, but it is likely that an increased workload, with a greater proportion of clinical cases, will lead to a reappraisal of working methods and a departure from the old, rigid division between investigation and rejection. Mr Buckley told us:

Although neither of the complaints we looked at in detail were clinical, both (and particularly that brought against Greenwich and Bexley Health Authority) raise clinical issues.

INVESTIGATION TIME

7. Investigation time, which we discussed during an informal meeting with the Ombudsman, continues to be an issue of concern and a cause of dissatisfaction for his clients.[18] In his Annual Report for 1999-2000 he makes this comment on it:

Notwithstanding this comment, one of the cases we have reviewed in detail for this inquiry demonstrates that it is not always the case that the Health Service Ombudsman investigates only past incidents rather than continuing problems. We therefore recommend that efforts be made to reduce the average time to complete investigations still further, particularly where this involves complainants (or those on whose behalf complaints have been made) who continue to be in need of care.

RECOMMENDATIONS AND REDRESS

8. We were pleased to be told "There are very few examples of an NHS body not agreeing to or implementing my recommendations".[20] These few nevertheless remain a source of concern to the Ombudsman, as does the worry that many other cases exist where the recommendations, though apparently accepted, are not fully implemented, or where the case investigated is merely the tip of an iceberg. In addition we share his disappointment that, despite his declared intention to name NHS practitioners who refused to make apologies, redress or improvements as recommended by his investigators, he has found it necessary to do so (albeit in only one case) in his volume of completed investigations.[21]

9. Policy on compensation for 'botheration' differs between the Health and Parliamentary Ombudsman. While Mr Buckley as the Parliamentary Ombudsman not infrequently recommends some compensation for 'botheration' as well as redress aimed at putting the complainant, so far as is possible, back in the position that he or she would have been in had the maladministration not occurred, Mr Buckley as the Health Service Ombudsman is less likely to recommend such compensation. He told us he favours a code within the NHS:

The current Department of Health (DoH) review of NHS complaints procedures is likely to report early in 2001 and we understand that the Department has already made a commitment that any new systems will be implemented by early summer 2002. We hope that the presence of the Ombudsman's deputy on the review's advisory group will ensure that these issues are given full consideration.

CASE AGAINST HEREFORDSHIRE HA[23]

BACKGROUND

10. The complainant against Herefordshire HA had requested that a Continuing Care Review Panel (CCRP) be convened in respect of the care of her mother, responsibility for whom had been transferred from the NHS to Social Services. The convenor refused this request on the grounds that the correct assessment procedures had already been followed by the Health Authority. The Ombudsman considered that the NHS guidance intended CCRPs to be an additional safeguard where there were concerns that the eligibility criteria for continuing NHS care were not being correctly applied. Although health authorities were permitted under the guidance to refuse a CCRP request where the patient fell well outside the eligibility criteria, it was quite plain in this case that the results of the original assessment were borderline.

11. Neither the Health Authority manager nor the independent lay person who had taken the decision to reject the request appeared to understand what the right to request such a panel is meant to safeguard. The Ombudsman found that, although their consideration of the case had been detailed, this did not in itself constitute an acceptable substitute for a CCRP:

"however thoroughly the manager and the prospective Review Panel chair had considered the case, the complainant was entitled to have it reviewed by a fully-empowered Continuing Care Review Panel ... it was precisely for cases such as hers that the CCRP had been intended".[

12. We explored with the health authority witnesses whether the policy for handling requests for CCRPs had been reviewed, and were pleased to be told that "the policy is, in effect, now, absolutely clear, that there is a presumption that the Continuing Care Review Panel will be called when requested, unless there are exceptional reasons for it not to be."[25] We were also told that such requests were not commonplace and that only in the complainant's case had a request been made.[26] We were therefore particularly concerned to learn, in subsequent written evidence from Herefordshire Community Health Council, that they had assisted a patient's relative in another case involving a request for just such a review.[27] In subsequent correspondence and conversations with Mr Ellis, Chief Executive of Herefordshire Health Authority, he said that he had felt that neither of the letters in the other case constituted a request for a CCRP,[28] but it is difficult to see how they could have been regarded as anything other than that. A system in which members of the public wishing to pursue a complaint are required to frame it in such precisely correct terminology (in this case a request for a review of the method used in reaching the decision, rather than a request for a review of the decision) before it is considered is not in practice a system that is open to all. We are most disturbed to receive evidence, however isolated the case might be, that such barriers remain, demonstrating at best a lack of understanding amongst staff charged with handling complaints, and at worst a lack of willingness to offer real assistance.

NHS COMPLAINTS PROCEDURES AND THE ROLE OF THE CONVENOR

13. Our Report for 1998-99[29] considered in some detail the operation of the NHS complaints procedure. It was not our intention to revisit this at length, but much of the evidence we received makes it clear that the process of local resolution remains unsatisfactory in too many cases, whether because of systemic flaws or inadequacies in implementation. There is also still the question of how the complaints procedure is viewed, and it is clear that the second route open to the dissatisfied patient or their relative - that of independent review - is not always perceived to be sufficiently independent. In the course of our separate inquiry into the current Cabinet Office Review of Public Sector Ombudsmen, we were told by a representative of the Association of Community Health Councils for England and Wales that the Ombudsman is the only part of the process regarded as truly independent.[30] This Committee necessarily tends to hear more of bad practice than good, and so we were pleased to be told by the Ombudsman that:

But we continue to receive evidence that in some cases the procedures for handling complaints before the Ombudsman becomes involved still operate in a way that is far from satisfactory. Mr Buckley told us that he continues to receive cases where poor handling has meant that a complaint which could have been resolved locally comes to him,[32] and the case against Herefordshire Health Authority comes at least in part into this category.

14. Previous reports of the Ombudsman and of this Committee have also commented on the poor performance of some convenors and the conduct of independent review panels (IRPs).[33] The convenor's role in the NHS complaints procedure is a central and by no means easy one. Their role, and the weaknesses in the guidance provided for them, were discussed at length in our Report of April 1998.[34] The majority of failings found by the Ombudsman in the operation of the complaints procedure related to decisions taken by convenors on whether to establish independent review panels.[35]

15. The widespread lack of confidence in these stages of the complaints procedure, of which we found evidence in our inquiry last session, are obviously still an issue. Although we take some comfort from the Ombudsman's comment that: "To give the NHS Executive a pat on the back for once in a while, they have done a lot ... and convenors are learning"[36], we were disturbed to be told also of "wilful misbehaviour by chairmen of independent review panels".[37] It is difficult not to agree with the forthright comments of Mrs Rodin, the Chair of Bexley and Greenwich Health Authority, that:

THE COMMITTEE'S ROLE

16. This Committee's role is primarily one of "after the fact" monitoring, assisting the Ombudsman to publicise certain issues and encouraging better practice in future. We strongly resist pressure, from any side, to act as a court of final appeal in specific cases. Nor should our involvement alone provide a spur to bodies complained against to review dusty files and put in train actions that should already have been taken. By the time the Ombudsman has completed and published his investigation, and we have decided to follow it up with formal evidence, the matters under discussion are usually quite far in the past. It was disconcerting, therefore, to discover that the Committee's intervention seemed to have had an effect in the case involving Herefordshire Health Authority. Just a few days before our evidence session, funding responsibility was resolved in what seemed an extraordinary coincidence. As the complainant who wrote to us said: "it seems a great pity that the full complaints procedures have to be exercised before justice can be obtained".[39]

CASE AGAINST BEXLEY AND GREENWICH HA [40]

BACKGROUND

17. This complaint, essentially about grossly inadequate care provided in a private registered nursing home to the complainant's grandmother, and the failure of the inspection mechanism to pick up on these shortcomings, led to two discrete investigations, one by the Health Service Ombudsman and one by the Local Government Ombudsman. This was a particularly bad case, involving the death, in most distressing circumstances, of an elderly lady, who was failed by those professionals whose job it was to protect her.

OVERLAP BETWEEN OMBUDSMEN

18. We were pleased to be told of efforts being made by the HSC and the Local Government Ombudsmen to improve their collaborative processes.[41] The issue of overlap between the roles of the Local Government Ombudsmen and the Health Service Ombudsman has been at the forefront this year, with the Review of Public Sector Ombudsmen, on which we have reported separately.[42] In the words of Mr Buckley, this case "illustrates very well the difficulty of having separate Ombudsmen covering NHS matters and local authority social service matters".[43] Mr Burgess, from the local authority, told us that he agreed "that the system failed the complainant in not dealing with it in a seamless way ... there is a gap in the regulatory framework, and ... unfortunately he has fallen into that gap".[44]

19. We concur with Mr Buckley's assessment that this gap means "complainants face serious difficulties".[45] He says:

This was echoed in Bexley and Greenwich HA's evidence, which told us how the funding status of the patient determines how a complaint is dealt with beyond the local resolution stage, the possible outcomes being recourse to one or other or both ombudsmen, or legal redress, and agreed with the Ombudsman that there is a need to move away from organisation-centred to patient-centred approaches to nursing home complaints.[47] Mr Kerin, Chief Executive of Bexley and Greenwich, felt that this case exemplified "the range of different organisations and complaints that got caught up with each other ... only at a fairly late stage ... [could we] see the full picture".[48] Mr Burgess agreed that:

INSPECTION AND PROFESSIONALISM

20. We were disturbed to be told, again and again, that the culture that "professionals do tend to trust other professionals"[50] had been central to the failure of mechanisms in the case involving Bexley and Greenwich HA. Mr Buckley told us that "The inspection team's investigation seemed to have been superficial, accepting statements made by the matron"[51] and Mr Kerin said "one of the lessons I have learnt from this, personally, is not merely to take the word of, ostensibly, dedicated NHS staff ... but to seek ... outside support".[52] We share the shock expressed by health authority witnesses at the discoveries they made as a result of this case being brought before the Ombudsman and draw attention to the need for inspection mechanisms to be strengthened to ensure that such a situation is not happening now, elsewhere.

EMERGING ISSUES

21. As with our parallel inquiry into the Annual Report of the Parliamentary Ombudsman, much of our work this year has been overshadowed by the long-awaited Cabinet Office review of public sector ombudsmen and the consultation document arising out of it. We expect that our scrutiny of the work of the Health Service Ombudsman in the next session may be similarly affected by the current DoH review of NHS complaints procedures. The case against Bexley and Greenwich gave us an opportunity to look at the operation of the NHS complaints procedure as it related to the inspection of a registered nursing home and co-ordination between health and social services. This interface is also the subject of discussion among those responsible for the National Plan and Modernisation agenda for the NHS, and for the creation of the National Care Standards Commission. We commend this report, and the material published by the Ombudsman, to those departments and individuals. This Committee has long maintained that the internal complaints procedures in place in much of the NHS can be unnecessarily slow and complicated. We hope that the review will lead to 'fewer but better' procedures. We will doubtless return to this subject in the near future.

11 Ev p1 para 7 Back

12 Annual Report of the Health Service Commissioner for England, Scotland and Wales 1998-99, 6^th Report, HC (1998-99) 498, p31, Figure 1 Back

13 Op Cit Back

14 Q1 Back

15 Op cit para 1.2 Back

16 Ev p1 para 4 Back

17 Q1 Back

18 Ev p2, para 10 Back

19 Annual Report of the Health Service Commissioner for England, Scotland and Wales 1999-00, 3^rd Report, HC (1998-99) 542, para 1.6 Back

20 Ev p2, para 13 Back