Select Committee on Public Administration Minutes of Evidence

Examination of Witnesses (Questions 1-19)




  1. Can I call the Committee to order and welcome our witnesses this morning. We are delighted to have you both with us for one of our regular sessions looking at the work of the Ombudsman. It may be helpful if you said a few words, and then we will ask you some questions.

  (Sir Michael Buckley) Thank you, Chairman. I will be brief because not only is the Annual Report for last year on the table but also the memorandum that I sent to you. I should like to begin by saying that I welcome the opportunity to present my report as Health Service Commissioner for England for the year 2000-01 to you today. In the memorandum I have submitted to the Committee I have highlighted themes that arose from the investigations which my Office conducted in 2000-01. Although, of course, those investigations were concluded some time ago, the themes continue to be of relevance to my current work. The need to ensure that communications between NHS bodies and staff and patients are effective; that supervision of, and support for, junior medical staff is of a good standard; and that essential nursing care is conducted according to benchmarks of clinical practice remain common elements of my findings. In addition, there are a number of other factors, both in terms of my Office's workload and performance and in developments in the wider political and NHS environments, which present challenges and opportunities for the work of the Health Service Commissioner for England. Some of these the Committee recognised in its session with the Minister last week. First, my Office's workload continues to rise. I have taken steps to ensure that in this context the backlog of older investigations is cleared while at the same time new staff are inducted and trained. Secondly, there has, of course, been little progress to date on the implementation of the reforms necessary to enable the public sector Ombudsmen to operate in the most effective manner. Finally, work continues, though I have to say rather slowly, on the reform of the NHS complaints procedure and on the handling of clinical negligence claims. The relationship between the Committee and my Office remains of central importance to the effectiveness of our work, and I am sure that my successor—or successors, as the case may be—will value this relationship equally.

  2. Thank you very much indeed. Could I start by asking you a question which I must have asked you umpteen times over the years? Whenever I look at your reports, I always want to know several things, one of which is how on earth you decide which complaints you take on and which you do not? I understand the point that you know if they are outside your jurisdiction or if they have not been through the internal stuff, then you put them to one side. The figures show that in 2000-01, the year that we are looking at, you received 2,595 complaints against NHS bodies, and of those, you accepted 241 for investigation. Then you say at some point in your Annual Report, "The decision was taken" talking about in a previous period, "to investigate a higher proportion of complaints." So you have taken a decision to investigate a higher proportion of complaints, but this suggests it is a bit hit and miss whether you get your complaint investigated or not, dependent on how many you are going to investigate. What is the answer to this?
  (Sir Michael Buckley) One point to make at the outset is that what we call investigable complaints are a good deal smaller than the headline number. In other words, far too many complaints come to the Office without any sign that they have been put to the NHS body or the NHS practitioner concerned. We cannot investigate those under the law, and we do not. Something of the order of two-thirds of the complaints reaching the Office are not investigable, and I think that raises questions which we address about our own publicity. But even within that investigable number, I quite take the point that we investigate only between one-quarter and one- third, and you wonder what criteria we apply.

  3. You say you investigate 28 per cent. How do you find that 28 per cent?
  (Sir Michael Buckley) Essentially, what we are looking for is whether the Office will add value. Usually a complaint will have been not only through local resolution in the NHS complaints procedure, but also through an independent review panel. If when we look at the case, and perhaps look at the clinical records, it seems to us that the panel have done a sensible job, that they have taken proper clinical advice, that their conclusions are clearly expressed and address the issues in the complaint, there is really very little point in our spending taxpayers' money and imposing burdens on the NHS to go over the same ground. Even if we reached a slightly different conclusion, it would not necessarily follow that any conclusion could be drawn from that. If two sets of clinicians say on the one hand this was a reasonable approach and another two sets say it was not, where do you go? What we try to do is to investigate those complaints where we see grounds for concern, whether there seem to be flaws in the treatment, flaws in the way the IRP has conducted its business, or flaws in the explanation, because that is quite an important part of our work. Very often we find in our investigations that in substance the diagnosis, the care and the treatment were all right, but the patient or the patient's relatives have not received a clear, comprehensible and up-front explanation of what has gone on. Often what my Office can contribute is that explanation, and the reassurance that we have looked at things and really, it was all right. That is the sort of approach.
  (Ms Scott) I do not have a lot to add; just two things. Firstly, there is a small number of cases where a matter has been complained about which we can help the complainant clear up in correspondence with the NHS organisation concerned. There are not a vast number of those, but nevertheless, we do try to do that. Overwhelmingly, the decision about whether or not to investigate is whether we think a reasonable person would be satisfied with the explanation they have had and understand it, and if not, we try to find a way of making sure they do get that explanation. Secondly, it is whether we think there is any cause for concern, taking our own internal advice on that matter, that needs further investigation. It is that index of suspicion that there might be a problem that would be worth looking at in more detail that has led to an increase in the number of complaints that we see and an increase in the workload.

  4. When you decide not to investigate three-quarters of the ones that you could investigate, do you tell people what the criteria are that you have applied in deciding?
  (Sir Michael Buckley) Indeed so. We never just send a two-liner saying, "Sorry, your case does not qualify." We send them a letter, frequently quoting from our own internal medical advice, saying that we do not think this is a case that is appropriate for investigation because of this, this and this. There is a sense in which, again, we would be knocking up against the problems of the statute. The structure of the statute is that we either investigate or we say, "No, we can't touch it." In fact, very often what we are doing is quite a lot of work. We may, for example, ask to see copies of the clinical records, and take internal advice. It is simply that we do not go on to the further elaborations of asking formally for comments from the chief executive of a trust or taking witness evidence or asking for external professional advice. We do not just brush these cases aside. We do our best, as indeed, we must under the statute, to give an explanation why we do not think it necessary to proceed to a statutory investigation.

  5. Then when people write back to you, as they often do, or they write to people like us, and say, "Come on, this is not right. What he's told me is not true; there are all these other factors," do you look at it again then?
  (Sir Michael Buckley) We always look at the case again, and the practice of the Office is that if there is a comeback, and certainly if there is any suggestion of a complaint about the way in which the Office has handled the matter, then it would be referred to the next level up, and indeed, sometimes comes all the way to Hilary or to me to look at. If, for example, it appears on the comeback that there is a genuine clash of evidence, we might well investigate, but very often, for example, there is a comeback saying, "I am still not happy," or "I have other medical advice which takes a different view," and if we check with our own medical advisers, who say, "No, we are satisfied," there is not much to be gained from continuing a rather technical discussion. Again, there is often misunderstanding, and people will go and get advice from, say, a specialist, whereas what we are looking at is what a GP or an ordinary hospital doctor decided. Our process is one of peer review, not on the assumption that if this case had gone to the leading specialist in the country, that specialist might have said something different.

  6. Can I ask you another question which I know I have asked you many times before? We always talk about our old friend the backlog, and our old friend is still with us. Obviously, it is profoundly unsatisfactory to have these so-called old cases lurking around for ages. It is unsatisfactory for you in the Office because it clogs you up, and it is unsatisfactory for complainants. Why can we not sort it out?
  (Sir Michael Buckley) If only it were that simple, Chairman. Perhaps I can just say one word about why it arose and then what we are trying to do about it. As you alluded to in your earlier question, we decided at the end of 1999 that our criteria for accepting cases for statutory investigation were too restrictive and we would take more cases on. What we thought was that quite a substantial proportion of the additional cases would prove to be fairly straightforward and we could dispose of them quite quickly. That proved not to be so, and I have to admit that that implies that some of the criticisms about our previous policy were justified. We were turning cases away that we should have taken on, and we take them on now. It is very hard to know just what the consequences are going to be in the medium term when one has additional cases. You cannot recruit extra staff just because there is an increase in the number of cases you are taking on over a period of, say, three or four months. It has turned out that we had shifted probably to a significantly higher level of complaints in the medium term. Perhaps we were a little bit slow in reacting to that. Maybe we should have reacted a few months earlier than we did. We did respond. We undertook a substantial recruitment campaign to get people in to deal with these cases, but of course, it takes time to get people up to speed. We have suffered from staff turnover for a variety of reasons, and other problems too, connected I think in many ways with the growth of new investigatory, regulatory and monitoring bodies in the Health Service. We were losing staff there. We are also finding some difficulty in, for example, securing external professional advice. There is a limited pool of people who can provide this sort of professional advice, obviously, and more people are dipping into it. For example, I have had some discussions with my GP colleagues who advise on GP cases, and they say that they are often approaching potential external assessors who say, "I would love to help you but, I am sorry, I am so busy establishing a new primary care trust"—or work on clinical governance or whatever it may be—"that I can't help you." It is not so much that we are taking 12 months just looking at the case in a desultory sort of way every day; there are long lead times where we are trying to get advice, where we have to wait months before we can arrange a case conference of consultants and so on. We have addressed this. The backlog of old cases is coming down, but always, I am afraid, backlogs come quite quickly and it does take months to get rid of them. I am hoping that by the end of this year we will be down to quite a small number of cases over 12 months, and we shall continue to work on that. However, in essence I cannot but agree with you. We hate these backlogs. It is particularly bad when, as so often happens, they come at the end of the NHS complaints procedure, and it has already taken a long time. I would dearly like to reduce the time we are taking, but there are problems.
  (Ms Scott) The only thing I would add to that is that there are features of cases which mean we know they are going to take some time to investigate properly and to clear: where there is more than one agency involved in a case, where there is more than one discipline involved in a case, or where the matter complained about is of particular clinical complexity. There will always be cases that take us a longer rather than a shorter time to dispose of properly, and I think that where we are clear with complainants and respondents about the work that goes into investigating a complaint, they are actually very reasonable and understand that it is important that we do take the time. But the fact is that an increase in our workload coincided with a reduction in the capacity the staff had. There is a very close correlation between the length of service a member of staff has and the speed at which they dispose of a case. It is common sense. So when one goes up and one goes down, it gets them into line again. I believe that we will be reasonably well back into line. We predicted it would take 15 months and in fact it could take 16 or 17 months from when we were going to have this problem. I am looking forward to that.

  7. Does the current industrial problem that you have bear on this? I am aware that you have a problem with the staff at the moment. Indeed, some of them have written to the Committee and have made the point that it is the pay structure problems which have led to a large exit of staff, which in turn possibly feeds into the problem that you are describing now. Is this the case?
  (Sir Michael Buckley) I do not want to discuss our negotiations with the union in any detail. Obviously, it is an unhelpful development from management's point of view. What I would say is that a key part of the problem, and one which the staff themselves were very strong on 12 months ago, was partly problems with starting pay, and partly, one of the things that we are suffering from is people leaving us in their first two years of service. We are putting a lot of effort into induction and training, and I think in fact we are the only body that is training people in this area, and naturally enough, we want to get some payback from that. So our pay offer this year was directed very much to that aim. It is concentrated heavily on bringing people up the pay scale when they gain experience. That is where we have concentrated our pay offer in response to what we perceive as the essential management need, which is precisely to retain staff in those early years when they are coming up quite quickly to speed, and as I say, putting it bluntly, we want a payback on the investment we put into their training.

  8. Is this in sight of resolution?
  (Sir Michael Buckley) We have made various attempts, including going to ACAS recently. Those attempts have not been successful and in the last couple of days management has decided that it would implement the pay offer. As far as we are concerned, that draws a line under last year's pay negotiations.

  9. I ask not because we have any role; we do not. Our role is in the knock-on effect in the kind of areas we are talking about, your ability to handle backlogs, turn cases over reasonably and so on, and to have the volume of staff that can do it.
  (Sir Michael Buckley) Absolutely, Chairman, and again, more widely, we thought very hard about staffing policy within the Office and what we should like to do in the short and medium term is to move towards a structure which has fewer levels, in which our main case worker grade will be a senior investigating officer. We can justify that because we would obviously expect higher performance in terms of more output of cases, less managerial supervision, and on that basis we can justify higher pay, which will, we hope, help with our problems of recruitment and retention. But as you will understand, we have a show that we have to keep on the road, and we cannot move to where we would like to be in one bound.

Brian White

  10. When the review of the Ombudsmen happened, you were described as providing a Rolls Royce service for very few cases, but very thoroughly investigated, and you wanted to move to a more family saloon type of approach where you had a large number of cases very quickly. How near are we to the family saloon?
  (Sir Michael Buckley) I think we are nearer to having a family saloon production line on the parliamentary side of the Office. One has to remember that the sort of cases with which the two sides of the Office, and indeed, the Local Government Ombudsmen, deal are rather different. Many of the cases that are dealt with on the parliamentary side of the Office are where someone has a problem, someone is not getting their retirement pension or a single mother is failing to get child support maintenance, and what that person is keen to do is to get the pension or the child support maintenance, as the case may be, and they are not really interested in an elaborate investigation as to just what goes on in the benefit agency. The health cases are different. There is not a problem that one can just sort out, so to speak. We do not get the cases of, "I want an appointment next week with my GP and I can't get one." It is much more that there has been an operation that has gone wrong, and someone is suffering from serious side effects or consequences. "My mother went into hospital and she died. I want to know why." In that sort of case what is necessary is an authoritative and impartial investigation of the facts. What people are looking for is an investigation of what happened. Something went wrong, and they want an apology, and they want a reassurance that it will not happen again. So there is, I think, quite an important difference between the two sides of the Office. We still want, of course, on the health side of the Office only to go as far as we need for a just conclusion. Of course, we want to get cases through in a reasonable time, but inevitably, for these sorts of investigations, the fact-finding issues, the need to take proper clinical advice, take time, and I do not think people would be satisfied if it looked as though we had done a rather cursory investigation.

  11. Looking at the figures, you have an increase of 70 people overall in the number of complaints. If you look at the south-east and London, there is a massive 5-6 per cent increase in the number of complaints. Why is there that geographical discrepancy?
  (Sir Michael Buckley) This is an issue that we have debated several times. The structure of things in London and the south-east is different. For example, traditionally London and the south-east has relied more heavily on the hospital secondary service rather than primary care, GPs, and people are as a matter of experience more ready to complain about hospitals than they are about their GPs. Again, quite a few people who are treated in hospitals or receive medical attention and have a complaint against a body in the south-east may not actually be resident there. So it is not a matter of simply looking at the population; it is also looking at people who come in from outside. Some say there is greater readiness to complain in London, but that is not universally accepted. I think too there has to be some element of greater problems in London and the south-east. Many trusts in the south-east, for example, find difficulty in recruiting nursing staff, and that is bound to have a feed-through. So there are a number of factors at work here, and it is very difficult to isolate them.
  (Ms Scott) Trying to draw conclusions from the geographical spread is actually very difficult. One of the things I think is quite important in looking to parts of the country where there seem to be fewer complaints coming through within the NHS complaints procedure is how people get access to the service and who is not making the right connections or is not able to make a connection. It is not a recent phenomenon that there is such a skew in geographical distribution of complaints coming to us, and although we have tried to dig down to see if it is anything we are doing, we do not think it is.

  12. There seems to be greater scepticism of official advice these days, whether it is as a result of BSE or whatever. MMR at the moment is a classic example where there is very clear official advice, but people just do not believe it because it is official advice. Has that permeated into your complaints procedure?
  (Sir Michael Buckley) I think there is some mistrust. One of the strengths of my Office is that it is generally accepted as being genuinely impartial and reasonably authoritative, I hope. We have always made it very clear that our job is to do justice in the individual complaint. We are neither the complainant's advocate, and that is important to retain the confidence of the profession, nor are we the profession's defenders. We do an impartial job. One of the reasons why I have adopted a policy of publishing a high proportion of our investigation reports is to put things into the public domain. There it is. There is the medical advice we have received. Of course, we anonymise it for reasons of patient confidentiality. It is there for the professions to assess as being of a good professional standard, and of course, for people like the Patients' Association to check that we are not just accepting the say-so, that we are not part of that perhaps mythical medical professional conspiracy against lay people. Of course, our conclusions are sometimes disputed. There are times when people say, "Oh, well, you are just in thrall to the NHS," but they are relatively rare; they are what any complaints body has to reckon with, and I do believe quite genuinely that we are accepted as being impartial in trying to do the best and most honest job that we can.

  13. What input are you making into the new complaints and patient forums and things like that in the NHS?
  (Sir Michael Buckley) We did contribute thoughts to the Department of Health's listening exercise, as I think they called it, on the changes in the NHS complaints procedure, and we have made the memorandum that we put to that exercise available. One has to be clear on two things. First, it is not our procedure; it is the Government's, and also we see relatively little of what is, after all, the main complaints handling part, which is local resolution, and that deals with something like 97 per cent of complaints, and obviously they tend not to come on to us. But yes, we do contribute, we have contributed, and we continue to contribute to discussion of changes in the NHS complaints procedure, and we certainly intend to do that.

Mr Liddell-Grainger

  14. Sir Michael, how many people work for you?
  (Sir Michael Buckley) The total number fluctuates. We have 80-85 staff operating on the health side of the Office.

  15. Do you feel that is adequate to do the job you are doing?
  (Sir Michael Buckley) I think it is enough in numbers. The real problem, as we have been trying to bring out, is inexperience. There are diseconomies in having too many people. They get in the way and they make work for each other. So it is not that we need a lot more staff, but that we need to capitalise more on the training we are giving them. I would like, as I said, also to move towards a situation in which our main case worker grade is a person who can produce more and work with less supervision. So it is not a matter of numbers.

  16. You have answered the question I was going to come on to, the skill level. You are dealing with more and more technical situations within this as the Ombudsman, and you are looking to expand the role, but it is the ability to perhaps encourage retired GPs or clinicians or whatever to join. Is that an area you are looking at?
  (Sir Michael Buckley) We do not have a problem with recruiting and maintaining an adequate number of what we call our internal professional advisers. Of course, people leave from time to time and we have gaps that we have to fill, but we have not had any serious problem of recruiting people in that capacity. The problem that I was alluding to earlier about our staff is as regards lay investigators, and what is important there is that we are a lay investigating body. We are not like the Royal Colleges or the GMC. Of course we are looking at clinical issues and clinical cases, but we are trying to do that from the lay person's perspective, to explain what happened in terms that the lay person can understand. It is very important that we have that mediation between the technical clinical advice and what we actually say in the report. That is where we do need people with experience, because there are not large numbers of people who have investigating skills and can understand the clinical approach.

  17. Looking ahead a little bit, you actually say that one of the things the Ombudsman believes is that the need for change is urgent. What is your utopia for change? Where would you like to see yourself in, say, three or four years' time?
  (Sir Michael Buckley) As a general proposition, I would like to see a new single Ombudsman institution, the sort we described before. Where I would like to see us, particularly on the health side, is that I would like to see complaints which are suitable for my Office coming through more quickly. That is one of the problems with the NHS complaints procedure. It is one of the reasons why we are criticised, perfectly understandably, for delay. It is one thing that we have to take nine months to conduct an investigation and do a thorough job if the complaint is relatively fresh. If it comes at the end of a long process which has already taken two or three years, it is very unsatisfactory for the complainant. It also means it is very unsatisfactory for us. It is hard to do an investigation. Any recommendations we make are rather out of time. I get very depressed when, as happens, I see cases crossing my desk in which the originating events are four or five years old. I would like to see cases coming through more quickly. We need to be able to deal with them efficiently to maintain our professional standards. I think the new Ombudsman institution will have an effect on working methods. It will not, for example, force us quite so much into this mould of everything being an investigation, either yes, we investigate or no, we turn you away. It will have less effect, I think, on the working methods of the Health side. I think it is more important to look at the work of the Office in the context of dealing with NHS complaints as a whole.

  18. Last week Christopher Leslie was before the Committee, and he was setting up timetables for looking at the way the Ombudsmen should be reviewed, etc. Do you feel that, from what you have heard so far, we are doing it the right way? Are you happy with what you hear?
  (Sir Michael Buckley) I am happy with the substance. I very much supported, for example, the conclusions of the Collcutt Review. From the exchanges I have had with the Cabinet Office, I think they are addressing the right issues. My concern is the amount of time that it is taking, and I really do not understand why. Mr Leslie said, "Oh, well, it took a long time from the Whyatt Report through to having the Ombudsman institution, but with respect, that is a truncated view of history". The Whyatt Report was published in October 1961, and the Conservative administration of the day dealt with it with commendable speed and despatch, even if one might not agree with their stance that, "We do not need an Ombudsman institution and we are not going to do anything." One knew where one was. The idea resurfaced in a speech by Mr Harold Wilson, who was then Leader of the Opposition, in July 1964. It was in the party's election manifesto in October 1964, and they presented legislation to parliament in February 1966. That is pretty good. It is possible to do these things even now, with more elaborate consultation procedures. In Scotland the Scottish Executive produced a consultation document in October 2000, a further consultation document in July 2001 and legislation is now going through the Scottish parliament. So these things can be done. I really do not understand why it is taking the Government and Whitehall so long to get on with these things.

  19. If you were looking at the theory of this, if you were a Le Carré writer, why do you think it is the case? I agree with you. I cannot see the problem. I asked Mr Leslie last week what the problem was and did not get a very satisfactory answer. What is your view?
  (Sir Michael Buckley) I am not a believer in conspiracy theories. I think it is partly that Ombudsmen perhaps are regarded by the Government as rather a nuisance and rather-old-fashioned. There is no problem about new institutions while you wait, but we are an old-fashioned institution, perceived as 1967 creatures. I do not think that is true. I think that we are capable, with good legislation, of being a fairly modern and satisfactory institution, but I think it is lack of priority rather than some deep laid plot to put things off and avoid creating a new institution.

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