Examination of witnesses (Questions 20
- 42)
WEDNESDAY 13 DECEMBER 2000
MR MICHAEL
BUCKLEY and MS
HILARY BAINBRIDGE
Chairman
20. Can I just pick up one theme that Michael
has raised with you and go back to what Andrew Tyrie was asking
you earlier on about the extent to which your remit is to improve
administrative systems inside bits of Government, or whether you
stop short before that. If you take the area that you referred
to in your report here, this question of GPs removing patients
from their list, this is something that you have reported on before
and this Committee, or its predecessor, discussed with you before.
You say although there is new guidance from GMC and elsewhere,
there are GPs happily disregarding this and just getting rid of
patients in the same old way. Does your remit not go so far as
to say that in terms of administrative practice it is unacceptable
for an organisation to behave in such a way without giving good
reason or without, for example, providing an appeal mechanism?
I wonder how far down the line you think you can go to clean up
people's acts?
(Mr Buckley) It is a fair question. I would have to
begin by saying that the essence of what we are for is to deal
with individual complaints. I say that very strongly because we
are the only people who can do it. There is an overlap with the
courts which we were discussing earlier. There are many organisations
which are concerned with inspecting and auditing the Health Service,
the NAO, the Commission for Health Improvement, the Regional Offices
of the NHSE and so on, but we are the only people who are actually
independent of the NHS and dealing with individual complaints
and that has to remain the heart of what we do. Of course we always
try to maximise the value of what we are doing. If we do see things
where we think we can make general recommendations to whoever
then we do so. To take the particular case of removal from a GP's
list, it seemed to me clear that some of what was going on was
actually contrary to the guidance issued by the GMC, well, that
is a matter for the GMC. I have said that it is not acceptable,
as far as I am concerned, for GPs simply to remove patients from
the list without really trying in any way to sort things out,
to give an explanation and to give a patient a chance to put their
view. Indeed, I have said, also, that if a GP were to have a patient
removed from his or her list for no other reason than complaining,
leaving aside vexatious complaints and so on, but simply, as has
happened, "You made a complaint, therefore I am going to
remove you" or, even worse, "I am going to remove your
family" then I would publicly name that GP. Ultimately the
GPs are operating within the terms of service laid down in statutory
regulations and it seems to me that is the point at which it becomes
a matter for the political process. It seems to me the sort of
thing the Committee should take up with the Department of Health.
I think that is the proper place for debating this sort of issue,
not for me as an unelected office holder to start saying "I
am going to modify or insist on there being modifications in GPs'
terms of service".
21. I understand. The problem is that you keep
coming back to us with the same kind of cases and we have the
same kind of conversations. Whereas perhaps if you had gone a
bit further and had pronounced upon what you regarded as, I think,
administrative malpractice that ought to be stopped, not to set
up an alternative but to lay down some basic procedural principles,
because you are the expert on maladministration and you know what
is not right and, therefore, by extension you know what is right,
but not to do that means that we go round the circuit yet again.
(Mr Buckley) With respect, Chairman, I think I would
disagree with you. I think I have made my position perfectly clear.
I cannot force people to accept it. Similarly, if we are looking
at maladministration, time after time we suggest to a Department
that it would be a good thing to answer correspondence in good
time, it is not a very good idea to lose the file, and so on and
so forth. I cannot actually wave a magic wand and turn this world
into a world in which files are never lost and in which correspondence
is always answered on time. As long as there is no legally enforceable
obligation then one has to say that it is just a matter of people
sometimes, I am afraid, going their own way and there being ultimately
no sanction other than public discussion.
Mr Turner
22. I want to come back, if I may, to the CHCs
and the broader issue of the complaints procedure because you
are, if you like, at the apex of that. I was a little bit surprised
you had not been asked about your views on the reorganisation.
Would you be prepared to give your views were they to be asked
for?
(Mr Buckley) Certainly. I would say what I have said
to the Committee, it is not for me to say whether the CHCs are
a good or bad thing but what I can do is to draw attention to
the lessons of the experience of my office which is that people
who want to make a complaint do need help. The NHS complaints
procedure requires people to be articulate, a lot of it is in
writing, formal procedures, they need help there, and it is a
procedure which requires a good deal of stamina. One of the main
criticisms that is often made about the way in which the NHS handles
complaints is that people do not accept that, for example, convenors
are independent of the bodies that are being complained against.
These are issues which need to be addressed. They come out clearly
in the work of my office and that is the sort of thing I would
say.
23. One of the indications I am getting from
my constituency is that people are a lot more willing to complain
and take those complaints further than they have done in the past,
which is putting a lot of pressure on the NHS trusts and the health
authority to satisfy that and bring things to a conclusion. Is
that your general view or do you think that is specific to my
constituency? I think it may be.
(Mr Buckley) Interestingly enough, the NHS Executive
does every year publish statistics for the number of complaints.
The number of complaints against NHS trusts in England has fallen
for two successive years, which is interesting.
24. Has it really.
(Mr Buckley) They have gone up against the Family
Health Service but they have fallen, complaints against the NHS
trusts. Of course one then says, well, that is counting, what
about weighing, maybe the complaints are more serious or more
difficult? I just have no means of assessing that. We do only
see a very small proportion of cases.
25. Can I just go on to one other area which
you touched on in relation to Healthcall. It is becoming more
prevalent that the private sector is a provider of health care,
even though it is the Health Service which is the payer of that.
That must cause difficulties for you because whilst you can have
some greater influence over a public body and how that responds
to complaints, it must be more difficult with a private sector
body even though that private sector body is being paid for by
public sector funds. Do you find that is the case or do you see
it will be a difficulty in future?
(Mr Buckley) I will ask Hilary to say something on
this. We have not found that as a difficulty so far at all. In
all fairness to Healthcall, they co-operated fully with our investigation
and they made no difficulties at all. They were very ready to
put things right. I would say also independent providers under
arrangements with NHS bodies will have to operate in accordance
with the terms of whatever contract they have. If we find shortcomings
in the arrangements then we can perfectly well say to the NHS
body concerned "Look, you need to tighten up the contract
in this, that or the other area". I have to say so far we
have not found any obstructiveness from independent providers.
(Ms Bainbridge) In fact, several of the original Healthcall
cases which we investigated were actually ones I dealt with. I
can still remember sending off the first letter to Healthcall
saying we were going to investigate a complaint against them—it
was the first one we had sent off to an independent provider—and
thinking that what I was going to get back was a lawyer's letter
saying "Nothing to do with us". It did not happen. As
the Commissioner said, we got co-operation, they provided documents
when they were asked, they arranged interviews when we asked,
they were very receptive to suggestions we made in the report
we produced, and that has been my experience with the one or two
other cases I have had since. I have had one recently which is
still under way of a private ambulance service providing a service
to the NHS and, again, so far we have had excellent co-operation
from them. Having seen the opposite side I did see a case recently
where an NHS trust had commissioned services from a private sector
body and, because of the way things were set up, they should have
been taking responsibility for dealing with complaints about them
and, in fact, they had not been, and we had to go back to them
and say, "We think you should be". I had expected resistance
in the private sector, but I have not seen any evidence of it.
Chairman
26. Had you had a lawyer's letter back what
would have happened then?
(Ms Bainbridge) I would have checked out things with
our lawyer. I was pretty sure we were on safe ground before we
started. I would have double checked it with our lawyers, and
unless our lawyers said, "You have it completely wrong",
we would have carried on.
Chairman: Good.
Mr Tyrie
27. I would like to ask this on behalf of people
in the United Kingdom who use the NHS and are happy with it, indeed
the taxpayer generally. There is an interesting little paragraph
where you said, "I also bear in mind that investigations
by myself are expensive. They impose a considerable burden on
the NHS body concerned and its staff". Every hour you spend
burning up staff time is an hour people have to come off patient
care. Health care is rationed in this country, nobody likes saying
it, but it is, therefore you reduce the available supply. Have
you made any estimate of the cost of your investigation in money
terms on the NHS?
(Mr Buckley) We have some rather rudimentary figures
at the moment of the cost of investigations, which we are hoping
to improve. I think that we would not, even with a more accurate
figure, approach this in cost benefit terms, the opportunity costs
of clinicians' time, and so on and so forth. If there was a genuine
complaint we thought needed to be investigated, we would do so.
That is what the statute implies.
28. I was asking you to estimate the costs.
(Mr Buckley) There is a benefit to the complainant
in terms of having their complaint resolved, we hope, satisfactorily.
29. There is also, of course, the prospect of
improvements in shortcomings, which we have been discussing earlier,
in the management of a particular NHS body or, perhaps, more widely.
It is really something that we need to be aware of in deciding
marginal cases. If it looks like a relatively minor complaint
which will probably not come to anything in the end, we must be
mindful there are costs attached to it. If you think it is a soundly
based complaint, could you put those in the public domain?
(Mr Buckley) Certainly. We put a memorandum of evidence
to the Committee last year on our costs.
30. Not your costs, on the cost burden imposed
on the people you are investigating?
(Mr Buckley) We have not made a estimate of the costs
to the NHS, these are something that we are aware of in general
terms.
31. Do you not think it might be worth a look
at that? I am not suggesting that you should not do the studies,
I am suggesting you should be aware of what we are forgoing in
terms of what is taken out of the NHS in order to conduct the
study. This is a reasonable matter of public interest.
(Mr Buckley) We will take that away and look at it.
Mr Trend
32. Can I ask a question about your own staff?
Sir Humphrey called it very brave to admit you are handling an
increased work load with fewer staff. Do you say you have suffered
from a considerable turnover of experienced staff? Is that related
to your increased workload or are there other factors? You said
you are getting on with doing something about it.
(Mr Buckley) It is always very hard to know what the
reasons are for staff turnover. I think also one has to remember
that we are a small office, so what looks like a large change
in the percentage turnover rate may represent small numbers. I
think one of the factors that is coming into play is that some
three years ago we changed our policy regarding the employment
of staff. Previously they had been on loan or short-term contracts.
We changed that in 1997 and we have a significantly higher proportion
of staff on indefinite term contracts. We have a significant number
of people who have been with us for some years and feel it is
time to move on. I would have some misgivings about people that
want to be in an Ombudsman's Office for 30 or 40 years. We do
try quite hard to assess these things. We have exit interviews.
I make a point of seeing every member of staff who leaves, because
that is probably one of the occasions when they might be willing
to give me a frank account of what they think of me and the way
I am running the office. I cannot say there any very strong feelings
coming through. We are concerned about pay. We are operating in
the London market, it is not an easy employment market. People
feel they want to move on. It is not the sort of office where
you can offer much of a career structure, there are caseworkers
and some management, not much further. What we are doing is partly,
of course, recruiting more staff, that will not only bring in
more staff but help relieve the burden on existing staff. We are
also reviewing carefully what we are asking of caseworkers, whether
we have the job description right and whether we should, perhaps,
be asking a little more of them in return for more pay. We are
looking at this in a fairly fundamental way. I cannot say that
the problem is this, and that is the way we are going to solve
it.
33. Is it not that there has been an increased
workload?
(Mr Buckley) I do not think so. Staff are not saying,
"This is an intolerable place to work, the workload is too
high". My staff are highly motivated people. They feel they
are doing a good and important job. They found it more frustrating
when we over-recruited, and they were sitting around without enough
to do. That was much more demoralising than having a full workload.
There comes a point at which people say, "I cannot take any
more".
34. I do not know how you disseminate more resources.
Who do you go to and say, "We are stretched, we need three
more caseworkers"? How much will it cost?
(Mr Buckley) If we needed to it would be a matter
of going to the Treasury. We are funded in the same way as a Government
department. At the moment I think I have adequate resources. That
is something, of course, we can look at.
35. Have you been to the Treasury in the last
year to ask for further resource of any sort?
(Mr Buckley) We have managed to live quite well within
our budget in recent years.
Mr Tyrie
36. The Treasury will note that.
(Mr Buckley) Mercifully we now have a better system
than in the past, we can carry forward underspends, so we are
able to do that. It will be tight next year, but we think it will
be all right. That is something which we will need to look at
in the light of each period.
Chairman
37. Before we finish, you made a throwaway remark
about competing with the London market, there is no reason why
the Ombudsman has to be in London, he could equally be in Cannock
or Wigan, both are convenient for the M6. Why do you have to sit
in London and have competition for staff here?
(Mr Buckley) That is an excellent question and that
is why we are reviewing our accommodation. It is a perfectly valid
question. It is a question that we know perfectly well we have
to address. Not only is the London market difficult but London
accommodation is extremely expensive. We need to look very hard
at the trade-offs, what we will save, what the extra expense will
be that we may have to incur. It a valid question which we are
addressing. I would say that even if we were not thinking that
we might merge with the Local Government Ombudsmen, who do have
a regional organisation. That strengthens the case, it is not
the only reason for doing the review we have in hand.
38. Finally, you do mention in your report a
spat you are having with the Department of Health about the costs
involved with the NHS part of your work. Part of the answer to
that would be that the effect of investigations is to produce
a tension that ought to be put right. It only works if the improvements
get disseminated or your findings get disseminated. You did refer
to the fact that there has been the change in practice by the
Department. They used to circulate under a circular the notes
of your investigation and that then changed, did you resolve that
or is this problem still there?
(Mr Buckley) Not wholly, I have to say. I must say
in fairness to the Department, there is a good deal of co-operation.
What we do is to e-mail the chief executives of trusts, health
authorities and Community Health Councils to draw attention to
our publications and tell them how to access the publications,
particularly we put them on our website. Also, I understand the
department is now mentioning the cases in their weekly bulletins
to chief executives and they refer to the publications in their
own website where there is a link to mine. I cannot say I am entirely
satisfied with it, for precisely the reason you give. It is rather
paradoxical that the Chief Medical Officer produced a report in
June, one of the findings of which was that the NHS was not very
good at using the information that it has within the system from
complaints and litigation. That is a wider problem. My investigations
are only a small number of the investigations and resolutions
of complaints which go on the NHS and the NHS has its own problems
to solve in disseminating information that it gets from its own
procedures. It does seem to me extraordinary that the Chief Medical
Officer is saying "We need to make better use of information
from complaints" when the one high grade, readily accessible
material which my office produces the Secretary of State then
says "Well, sorry, I am not going to circulate it".
I can only report that as the situation. We are doing our best
by our own publicity methods but I would prefer that there was
more done within the Health Service to draw attention to this.
39. If the Committee was to drop a little line
to the Secretary of State saying that we are not too thrilled
about what is happening, that might not be unhelpful?
(Mr Buckley) I would not disagree for one moment,
Chairman, or seek to dissuade you.
Mr Tyrie
40. Can I ask something very, very quickly.
You kindly agreed to take a look at this question of the cost
burden imposed on those investigated, particularly in the health
field, perhaps it might apply more generally as well. When you
have had time to examine and think about it and how you might
go about that, would you be prepared to drop the Committee a line?
(Mr Buckley) Certainly. I cannot promise more than
a very broad brush exercise because investigations obviously vary
so much.
41. Stage one would be to think about how one
might go about doing it.
(Mr Buckley) There is an opportunity cost but you
do know what is happening. We all know perfectly well that clinicians
do things over and above their hours and so on. There is an argument
for saying it is all a free good, I would not go that far but
you can see the complications.
Chairman
42. I think we should end there. Thank you very
much indeed for coming along and giving us evidence, as ever instructive,
and we go away with further ideas about aspects of your work.
I think we would like also to take this opportunity to thank you
for all the work that you do in the office on behalf of the people
you represent and Parliament too.
(Mr Buckley) Thank you, Chairman. May I say in turn
how much we value the support and the ability to discuss these
things with the Committee.
Chairman: Thank you.
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