Examination of witnesses (Questions 1
WEDNESDAY 13 DECEMBER 2000
BUCKLEY and MS
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
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 wordit may
be too strongthere is this tension, shall we say, between
legislation and what may happen. I am not sure I regard this as
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 familythe patient
had diedand 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
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
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
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 sayhappily 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.
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
(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
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
(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