Select Committee on Public Administration Minutes of Evidence

Examination of witnesses (Questions 1 - 19)




  1. I wonder if this would be a good moment for you to change hats now and become the Health Service Ombudsman. You have with you Hilary Bainbridge, who is the Director of Investigations. Some of the questions that you were asked as Parliamentary Ombudsman[1] will be common ones, it will help us to move seamlessly from one area to another. Perhaps you would say a few words about the Health Service Ombudsman Report and we will weigh in with some questions.
  (Mr Buckley) I will not repeat the general remarks I made. One point I should make is that previous annual reports from me as the Health Service Ombudsman covered England, Scotland and Wales. The report for 1999-2000, which the Committee is considering today, covers only England. We gave some data about Scotland and Wales for the purpose of comparison. One of the most significant features of the year was the increase in the proportion of complaints investigated. Last year clinical investigation cases made up 77 per cent of the total investigated and the figure has risen. It has become clear that in such cases complainants cannot so easily provide prima facie evidence of particular failings, as we had generally expected them to do in administrative cases before we began to investigate. We could not do that in clinical cases and that was one of the main reasons why we shifted the presumption towards investigation, if we could not feel confident that treatment was reasonable or patients had had an adequate response to their concerns. As before, a significant proportion of complaints received were outside our jurisdiction, particularly because they had not completed the NHS procedure. The proportion of the other cases which we did investigate rose during the year from 12 per cent to 19 per cent. In the first half of this year it is running at 30 per cent. Obviously that has led to a large increase in the number of investigations that we have in hand. The figure has risen from only 97 in April 1999 to over 250 now. We completed 128 investigations in 1999-2000, and we hope to complete about 210 this year. We estimate that in order to avoid an unacceptable backlog we need to complete over 300 next year. That is a doubling of output in two years. We had thought that a significant proportion of the additional investigations we took on might be rather less complex than typical cases before. That has happened, to an extent, on the Parliamentary side. We thought, for example, we might be able to conclude cases having obtained clinical advice after a detailed examination of the records but without having to go to interview. That has been true for some investigations but experience has shown that a significant proportion do require further inquiries and interviews in order to produce a full and fair report. We are also handling an increasing number of very serious and complex clinical cases, and very few of the comparatively simple administrative cases we were handling four or five years ago. That affects not only the workload but also throughput times. We have tried hard to keep investigation times under control. We very nearly hit our target in 1999-2000 with an average throughput time for investigations of 48 weeks. We reduced the target to 43 weeks for the current year. I do not think we are going to hit it. Many of the complex investigations and clinical investigations just cannot be done that quickly. The increased workload has made it hard to reduce throughput times and the average is pretty similar to that of last year, 47 to 48 weeks. We make continuing efforts to reduce times taken. We are looking at our investigation processes generally. We are particularly looking at how we can improve the ways we obtain and use clinical advice. The change in policy, as I have outlined, has coincided with a period where we have seen a significant turnover in our experienced staff. At present we are handling an increased workload with fewer staff than we had at the same time last year. I have to say I am very grateful to my staff for the positive response they have made. As I explained in the memorandum, we have a major recruitment exercise under way, both to replace staff who have left and to increase staff numbers, so that we can handle the additional work without developing a serious backlog. I hope to have the new staff in place early in the New Year but they will need to be trained and that will impose further burdens on existing staff. They will not be fully productive for some time. The year is going to be a demanding one, but I remain convinced that the change in policy is correct. Just to counterbalance some of the complaints which you receive about the office, recently a complainant wrote to us to say, "The report was both clear, precise and has grasped everything about the complainant . . . At last we feel justice has been done . . ." That is what we are trying to achieve.

  2. Can I just take up a point referred to earlier in relation to you and the courts, particularly now that the burden of your work is shifting in the clinical direction. I know that your blueprint says that you do not take things up if people are following or intending to follow a legal route. Of course, you do not know that. I just have a sense now that you are into the clinical area in a big way and because clinical negligence cases are such big business you are a rather convenient way of testing out the evidence, are you not? Would a sensible person think, I will run it around the Ombudsman first and see if this stacks up, and then go and find a decent lawyer?
  (Mr Buckley) I think that may well happen in some cases. I have no evidence at all as to how widely it is happening. I am not sure that I would say that it is particularly objectionable. What the law says is that if the complainant has an alternative remedy by way of action before a court or a tribunal I cannot look at that. If someone comes to me saying, "This is a clear-cut case of clinical negligence for which I require compensation", then I would not take that, that is a matter very obviously for the courts. Before beginning an investigation I cannot come up with a judgment that something is seriously wrong and there are plainly grounds for legal action. The view I take is essentially to leave it as a matter of choice to the complainant. If they want to use us, we will take the case on. If they wish to go to court that is for them. I can only repeat what I said, we cannot produce any evidence that could not have been discovered by other means. We do it in a reasonably cheap way and in an expeditious form. The matter is not formally binding on anyone. I accept that there is this problem, if that is the right word—it may be too strong—there is this tension, shall we say, between legislation and what may happen. I am not sure I regard this as particularly objectionable.

  3. Did I understand you to say, if you could see that a case was clearly one of clinical negligence, you would not take it up?
  (Mr Buckley) If the complainant says, "This is a case of clinical negligence for which I want compensation", that is something that plainly they should go to court for. I always avoid using the words "clinical negligence", precisely because it brings me into the legal area. What we investigate is whether the standard of treatment was reasonable and what the complainant could reasonably expect in the circumstances, which is a different proposition. There is, of course, potentially an overlap. I mentioned a case earlier where we had found serious shortcomings. It may well be that if the complainant had had that evidence right at the start they would have gone to court. In fact, what happened was that we produced our findings in draft, we got in touch with the trust and said, "This is very worrying, clearly there has been a serious shortcoming in treatment and problems in the departments concerned". What we suggested was they should get in touch with the family—the patient had died—and that worked very successfully. The upshot is that, I think, there is every chance that justice will be done in a way that is a good deal more expeditious than the courts. That said, I am not setting myself up in rivalry to the courts. There are some things that should go to court. I do not think that I am doing the public any disservice if my investigation produces material which is the foundation for court action.

  4. Let me press you a little further, I am fascinated by this, if I write to you as a citizen and in my letter to you it says, "This is a clear case of clinical negligence", I will leave out the bit about I demand compensation, you would turn me down, would you?
  (Mr Buckley) Yes. I think what the office would do about that is, if you are alleging this is a matter of clinical negligence that is a matter which should be tested by the courts and you have to go down that route.

  5.  The person may have come to you because they decided to go down your route.
  (Mr Buckley) They may then reply saying: "Well, I did not really mean it. I am just concerned with the standard of treatment that I or my mother or whoever it was received and I would like you to investigate the facts". As long as they have been through the NHS complaints procedure we will look at the case on its merits.

  6. It is an interesting area. You do think about it. I think people are not perhaps aware of the burden that their words might carry, clinical negligence referred to in a rather throwaway sense. You are now engaged in looking at the clinical area and you are now engaged in employing expertise to investigate clinical cases. So, in a sense, you are doing the same business as if someone might have gone down a different route. People may simply want to find out what happened.
  (Mr Buckley) Indeed so, Chairman. There is a spectrum of clinical mishaps from the odd failure to read a thermometer correctly to some terrible obstetric case where you have a brain damaged child who requires support for life, a cost running well into seven figures. Of course, exactly where one says the Ombudsman should stop and the courts begin must be a matter of judgment. To be clear, if we get a letter using the dangerous words "clinical negligence" we will write back to them and say "I am sorry this is for the court". If the complainant wishes to respond, because after all it is a decision that is not a final one, they can come back to us and say: "I am sorry, that was a misleading phrase to use. I just want the facts to be established. I am not looking for compensation. I am not looking for disciplinary action" we will look at the case on its merits. There is implicit in the legislation, and indeed in common sense, a sort of demarcation between us and the courts. You cannot say when you get a case just where it lies on the spectrum of seriousness, if I can put it that way, we cannot until we have investigated it. We are just trying to find a common sense solution which does not take from the courts things which should go to the courts and does not push into the courts things which we should do but there will inevitably be an area in the middle where we are not sure what is happening and we will do the best we can in the light of common sense and what we hope is the public interest.

  7. Can you just tell us a little more about how this area of work is going. This has transformed the Ombudsman's role on the health side completely. When you look at the figures you have given us here, the fact that now 83 per cent of investigations in hand are clinical and that this percentage in the year that we are looking at went up from 52 per cent to 77 per cent, this is an area in which you had no involvement at all until recently so it has transformed the work that you do. I have two questions really. One is does this mean that the other stuff that you were doing now gets pushed out of it because compared with all this very important and serious clinical stuff it looks less important or do you still take as much of that as you ever did, it is just the proportions that have changed?
  (Mr Buckley) Firstly, Chairman, if I may say so, I could not have put it better myself. The work of the Ombudsman is totally different from what it was three or four years ago. I may ask Hilary Bainbridge if she would like to say something about that because she is actually doing it. It really is a complete transformation. We do still receive complaints about complaint handling, about failure to make appointments, or to get the chief executive to sign a letter. I think with hindsight we can see that what was happening before April 1996 when the jurisdiction was extended was that people, as it were, wanted to get at the Health Service body and perhaps they would go to the CHC and be told: "Well, okay, you can go to the Ombudsman, but I am sorry, it is no good putting a clinical complaint to the Ombudsman, he cannot take it". So they wanted to get at the trust or whatever it was so they produced an administrative complaint which we could examine. It is not that we are not still doing the administrative work; but it is dwarfed by the clinical work. We are doing some of the administrative work but much less than we were before the change in jurisdiction. People are now actually going for what they are really concerned about, which is the standard of treatment which they or their family received from the NHS. I think one has to say that because of the extreme restrictions on jurisdiction before 1996, a lot of what the office was doing was peripheral to the concerns that the users of the Health Service had. We are now very much more at the centre. Hilary may want to say more on the change.
  (Ms Bainbridge) Yes. I am in quite a good position to comment because I joined the office five and a half years ago, so just before the change happened. You are right, the work is totally different from what we did then. It is not that we are turning away things that we used to do. I was saying to the Commissioner yesterday, when I think back, part of our daily bread when I first started was the classic complaint about waiting six hours in casualty. I have not seen a complaint about that for a couple of years. I suspect people still are waiting for six hours in casualty, I am not suggesting it is not happening, but I think what is happening is that some of those complaints are now perhaps being sorted out by the revised NHS complaints procedure and therefore they do not find their way to us. Also, when a lady waited for six hours in casualty probably also the family were not happy about the treatment she received and what happened when she went on to the ward and were not happy with the doctor's treatment. But we could not look at any of that, so all they were left with which we could do anything about amongst this mass of dissatisfaction, was the little bit about the waiting time. Now, what happened in the ward, and how she was treated whilst she was perhaps maybe dying in the ward, is far more significant than the six hours in casualty and they do not even bother to mention that. Their focus is on the things that matter most to them about their relative's treatment.

  8. The more you say the more interested I get. You used the word "peripheral" to describe some of this. I just would say to you quite gently that I hope that is not the consequence of your change in emphasis, that many things people do want to complain about are to do with how they were treated but not in a clinical sense.
  (Mr Buckley) Yes.

  9. I hope the overwhelming emphasis on clinical area you have now got does not mean that somehow you think other kinds of treatment or mistreatment somehow recede in importance?
  (Mr Buckley) That is not at all what I was trying to say, Chairman. Associated with complaints about clinical judgment will very often be how I was treated, the staff were rude to me or dismissive or would not listen to me or my mum, and that will be part of it. I do repeat that I think in the past we used to get complaints, which as Hilary said were just carving out from what was really concerning people, the thing that we could look at.

  10. Stuff you could look at.
  (Mr Buckley) They are not bothering to do that any more. We still are concerned if, for example, a complaint is badly handled. We do not say "That is nothing to complain about, we are not going to look at it". We do look at it, particularly, of course, if there is something seriously wrong or perhaps the trust or the health authority concerned seem to have been handling complaints badly elsewhere. We are not just dismissing non clinical complaints as unimportant or things we do not want to deal with. The work we are doing reflects the complaints that are coming to us.

  11. Can I just ask one final question on this area. When you began to do your work in this area, and now it dominates the office, there were many questions about how you were going to be able to do it, and how credible you were going to be in being able to make judgments on the clinical side. If this did go to court, of course, you would have a distinguished clinician saying "this happened" and you would have an equally distinguished clinician saying "this did not happen". You are an investigatory model. How have you been able to crack this? How have you been able to ensure that the clinical input that you buy in for these investigations does have that credibility?
  (Mr Buckley) If we investigate and there is a significant clinical issue then we will usually engage two external professional assessors in the discipline or the specialty concerned. Sometimes they will ask us in effect "Am I appearing for the claimant or the defendant" to which the answer is "Neither, you are appearing for the Ombudsman". What they are doing, as I said earlier, is to offer advice on whether the standard of treatment, whatever it may be, was a reasonable response in the circumstances. It is a matter of peer review. If it is a complaint against a GP's diagnosis then we are not applying the standards that would be appropriate to a consultant in the specialty that turned out to be right for the particular disease. We are asking other GPs with knowledge and experience of a particular type of practice: Did the GP put himself or herself in a position to make the right diagnosis? Was it sensible? Were they prepared to revise the diagnosis when fresh evidence came along? We try hard to get an agreed report, that is also a report which is subject to quality control by my internal professional advisers. There is another thing that we do in order to maintain credibility, publish a high proportion of cases, because that puts the material into the public domain. The Royal Colleges and others can see the clinical advice we are getting. They could say—happily they have not—"I am sorry, we do not think that the standards you are applying are right. I do not think you are getting up-to-date advice". We are trying very hard to make sure that the advice we are getting is accepted by the profession and is sound and credible. We also want to make it clear to those who might fear that the office is being taken over by a great medical conspiracy that we are applying sensible, reasonable judgments. Ultimately the decisions are taken by lay staff. We are trying to approach this in a number of ways, one is to make sure that we are getting peer review from people who are still active in the field. It is subject to quality control by my own internal professional advisers. We are publishing a high proportion of material in order to subject the report, the sort of judgments we are making on the report, to scrutiny.

Mr Trend

  12. Can I ask a broader set of questions, what interest do you take after you make judgments? The one in particular I am thinking of is the case of the dental practitioner who you named. Have you any indication of whether this was effective or have you re-visited it? What has happened since?
  (Mr Buckley) Not of that particular case. When we do make recommendations for improvements in procedures, particularly within a trust or a GP practice, we do ask for a report, sometimes three, but usually six months later saying, "Has it really happened?" I have to emphasise the office is not and cannot be, as it were, auditors or an inspectorate and we cannot just revisit practices or hospitals against which we have received complaints. Two matters, one is that all of our reports go to the Secretary of State for Health and very often they go the employing authority. I hope, increasingly, we shall make available the results of not only investigations but also information we get from complainants. What we are trying to do is to make sure that the information we have in the office, whether it is from investigation or otherwise, is put into the NHS system so those who are better placed can follow that information up.

  13. I may be wrong, you can suggest to the Committee it follows up a particular case?
  (Mr Buckley) Indeed so.

  14. You clearly felt very strongly about this particular case.
  (Mr Buckley) We named the dentist not because the case is an awful one in itself. I have taken the view, and said publicly, it is important to maintain the integrity of the complaints procedures. We had a situation in which the complainant had been through the NHS complaints procedure, then come to my office for an investigation, we upheld the complaint and the clinician shrugs their shoulders and walks away. There is no legal sanction, but that seems to me to be thoroughly unsatisfactory and, at the very least, it seems to me right that the person concerned should be named so they can be asked to justify themselves publicly. In some circumstances that may happen through a suggestion to the Committee that they should take evidence from that person. We tend to do that in cases that merit the Committee's weight, obviously, particularly if they raised general issues the Committee might wish to take up with the Government.

  15. Another thing you did last year was look at Healthcall and three complaints against them. They gave you assurances, in a sense they put the ball into your court.
  (Mr Buckley) We did meet. Some of our staff have met Healthcall's medical director and they have discussed the problems and they helped to plan for changes in some detail. We know that the medical director subsequently reported on a range of remedial action agreed at board level. There has been a decision that calls should be assessed by a clinician in 30 minutes. One of things that concerned us in previous investigations was they were not assessed in a reasonable time by a clinician. For what it is worth, last year I received six complaints about Healthcall, so far this year we have received five. In some of those the events concerned pre-dated my criticism of Healthcall. So far we have not yet seen evidence of the same organisational problems that we saw in previous cases. I have to stress that we are not there to act as inspectors or auditors. One of the good things, which I hope our report contributed to, was the review by the Department of Health of out of hours services, and I hope that has tackled the problem in a fundamental way.

  16. You can also flag up themes you think are beginning to become more common, refusal by a doctor to treat a particular patient for personal reasons, a disagreement of a personal nature. Is there any advice you can give or could give on these cases?
  (Mr Buckley) If we see themes emerging, yes, then we flag them up in the annual report, otherwise to the department. One always has to bear in mind that we are looking at small numbers. The total number of complaints in England that we receive is about 2,500 and the total number of investigations, even with the increase in the numbers that I mentioned, is only going to be about one tenth of that number. That is very small if you put that in the context of what is going on in the NHS as a whole. If we do see emerging themes we would pick them up.

  17. I think that a lot of people are reluctant to pursue cases, particularly if somebody has died. I have a couple of constituency cases which belong to that category, that theme, which the press took up some months ago about elderly people not being well looked after. In one case the deceased was robbed of their possessions. I mentioned there were certain things which could be done, certain complaints that could be made, but the relatives of the deceased were not in a state to make the decision, and they wanted to get on with things. I suspect there are complaints that just never come your way. You mentioned the CHCs earlier, have you taken a view in this thorny debate?
  (Mr Buckley) No.

  18. That must be one route that people get to you through?
  (Mr Buckley) Certainly. What I would say on that general issue is I think that anything that may replace the CHCs needs to be accepted as independent of the body being complained against. Certainly we do find the involvement of CHCs helpful in assisting complainants, who are often emotionally distressed or inarticulate. I hope whoever replaces them will provide that sort of service too. It is not for me to say what is the right way of doing it and whether the CHCs continue. That is a political issue for ministers and Parliament. What I would say is, as I say, that complainants do need help in making their way through the system. It is a complicated system which requires a great deal of stamina. I do think it is very important that whatever methods there are for dealing with complaints in the NHS should be accepted as independent.

  19. Have you been asked for your opinion on the reformation of CHCs, or whatever it is to be?
  (Mr Buckley) No.

1   Evidence published as HC 62-i. Back

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2001
Prepared 5 March 2001