PHSO Annual Scrutiny 2016–17 Contents

Conclusions and recommendations

Future strategy

1.We welcome the Ombudsman’s commitment to consulting widely on his new strategic plan, and the recognition of the need for it to focus on improving its core functions and reconnecting with its stakeholders. The Committee recognises the challenges the new Ombudsman faces in making the reforms he has identified and delivering the savings he is required to make. We note that even the “modest” draft objectives were described as “very ambitious” to deliver by his Chief Executive; and welcome her honesty that delivering long-term improvements may require some short-term increase in the time PHSO takes to complete cases. (Paragraph 18)

2.We will hold the Ombudsman to account for delivering the objectives he is setting and that he has assured us will be deliverable given the resources he has. We also expect the PHSO to continue to be transparent and candid about the impact the change programme is having on its performance, and willing to adjust its strategy if necessary. We will judge the PHSO on the impact it has on public services, the value for money it provides, and the confidence it inspires in complainants, other stakeholders and the public. (Paragraph 19)

3.The Committee is in no doubt about the financial challenge that the PHSO faces. However, we also agree with the Ombudsman that before the PHSO can make the case for more funding, it will need to demonstrate that it is spending its current funding well. Given its past problems an external audit mechanism is required that will provide robust assurance of the value for money of the PHSO’s operations to its Board, the Committee and the public. We recommend that the Ombudsman asks his non-executive directors to commission this, and report back to us. (Paragraph 20)

4.The new draft Public Service Ombudsman Bill is awaiting pre-legislative scrutiny. We are clear that it is a vehicle for implementing several of our predecessor Committee’s recommendations that are needed to bring the governance and operations of the Ombudsman into the twenty-first century. We have no doubts about the quality of the individuals who act as non-executive directors of the PHSO, but the Corporation Sole model is no longer fit for purpose. Notwithstanding the Bill’s content, the continuing uncertainty has an adverse impact on the PHSO, and the Local Government and Social Care Ombudsman (LGO). Together, their ability to plan is being impeded and this risks wasting public money. We, therefore, expect the Government to provide clarity about its intentions for pre-legislative scrutiny of the Bill, and about the timetable to implement this new legislation to allow the PHSO and LGO to plan with some confidence. (Paragraph 23)

5.We recommend that the Government should invite the House of Lords to join the House of Commons in setting up a joint committee to conduct the pre-legislative scrutiny of the draft Public Service Ombudsman Bill as soon as possible. In its response to this report, the Government should provide the PHSO and LGO a date by which it intends to have the new legislation in place to allow them to plan with some confidence. (Paragraph 24)

6.We recognise that the staff of the PHSO are central to its success. They are asked to do a difficult job, and the last few years has been a period of significant and ongoing uncertainty owing both to the organisations restructuring and the unexpected turnover in senior leadership. We welcome the improvement in staff engagement, but we agree with Amanda Campbell that more needs to be done. (Paragraph 28)

7.We also welcome the enhanced support to PHSO staff to manage “vicarious trauma”. The wellbeing of PHSO staff is important in and of itself. However, given the nature of their work it is also vital for their ability to deal supportively and empathetically with complainants. We also strongly support the PHSO’s wider plans, set out in their new strategic plan, to invest in training their staff and to developing professional accreditation for case handlers. (Paragraph 29)

PHSO’s performance in handling complaints

8.We remain concerned at the length of time that PHSO investigations take to complete, not least because of the added distress this can cause to complainants. We are also clear that increasing the speed of investigations should not come at the cost of compromising their quality, and we therefore accept that delivering significant improvements may take some time. We note that, although the PHSO has said an average of 200 days is unacceptable, it has not defined what it thinks would be an acceptable benchmark. (Paragraph 34)

9.The Committee recommends that the PHSO publishes what average length of investigation it is aiming for and by when it intends to achieve it. The Committee will investigate the specific issues raised by the report into Ms Hart’s death and the lessons to be learned, including from the failings in the investigation, at a later date. (Paragraph 35)

10.Given the nature of the PHSO’s work, and the number of complaints that it handles, it is inevitable that mistakes will be made, or the service provided to some complainants will slip below the standards the PHSO sets itself. However, these should be minimised, and the need to pay compensation rare. Complainants to the PHSO are already, by definition, dissatisfied with their treatment by the public sector so it is imperative the PHSO seeks to avoid causing further distress and further undermining public confidence in public services. We therefore welcome the approach to learning and feedback that is being implemented. We expect the PHSO to be able to provide evidence in the future of the improvements that have resulted. We also recommend that in future the PHSO publishes in its annual report how many times it has offered compensation as part of its wider commitment to transparency. (Paragraph 37)

11.We welcome the Ombudsman’s change in policy, and the clear statement that, in exceptional circumstances, the Ombudsman will quash an inaccurate or incorrect report. It is clearly reasonable that, where the Ombudsman accepts a decision is flawed and there is risk that if it is not withdrawn prior to a new investigation being completed it will do harm, he should be able to withdraw it. However, we recognise that the law is not certain on this point. (Paragraph 41)

12.We therefore recommend that the Government include unambiguous powers in the Public Services Ombudsman legislation to allow the Ombudsman to withdraw his reports in exceptional circumstances. This continuing legal uncertainty is another reason why the legislation should be brought forward at an early opportunity. If the Government intends not to legislate to create the Public Services Ombudsman in the foreseeable future it should identify an alternative legislative vehicle to amend the existing legislation. (Paragraph 42)

13.We welcome the innovation of the Service Charter, and the commitment to learning and improving the PHSO’s service to the complainants it represents. It will be an important tool for the PHSO, Parliament and the public to track and understand the PHSO’s performance over time. For that reason, we expect that the PHSO will continue to collect and publish this data in comparable form for the foreseeable future. (Paragraph 45)

14.We accept that it is inevitable that the outcome of their case will colour the views of complainants regarding the overall service provided by the PHSO. However, we expect the PHSO to keep those commitments where there is a large gap between complaints perceptions and the casework process assurance scores under review. It should also provide assurance that the gap is not a result of failings in their processes. (Paragraph 46)

15.We agree that impartiality and independence is central to the effectiveness of the Ombudsman. His decisions must belong to him. However, the public and Parliament must also have confidence that the PHSO is impartial. A core role of the Ombudsman is providing assurance to the public that if they suffer injustice at the hands of public services there is an impartial person they can turn to, whether they ever need to or not. This is important for maintaining public confidence in public services and public servants. (Paragraph 50)

16.We have no doubt that the PHSO is committed to taking its decisions impartially. However, as it recognises through the need for unconscious bias training, there is always a risk that investigators will display unconscious bias towards complainants or bodies in jurisdiction. Given the centrality of impartiality to PHSO’s culture and self-image, it is also possible that the PHSO staff carrying out quality assurance of the handling of PHSO investigations will display unconscious bias towards their colleagues. We recognise that external perceptions of independence and impartiality will be in themselves only a partial view, but they are a potentially important additional reference point for both the PHSO and Parliament to use in monitoring the PHSO’s performance. (Paragraph 51)

17.We therefore recommend that the PHSO does ask complainants if they perceive it as making decisions impartially as part of the Service Charter, and systematically seek and publish the view of bodies in jurisdiction. We support the commitment to equal access to draft reports and other information between all parties to a complaint. (Paragraph 52)

18.Given the very sensitive nature of the personal data relating to complainants that the PHSO routinely handles, any serious loss must be a concern. We recognise, that, given the thousands of cases that PHSO handles annually, it would be unreasonable to expect it to never have an issue. However, the number of losses last year compared to similar organisations and the repeated losses of data by couriers is very concerning. We will monitor these issues closely in future years, and expect the leadership of the PHSO to take swift action if a trend of serious losses develops. (Paragraph 55)

Historic complaints

19.We agree that the PHSO is not the correct body to carry out inquiries into historic cases However, there remains a need for them to be addressed, both in the interests of the families involved and in ensuring that any safety lessons that can still be learnt are. We therefore endorse and repeat our predecessor Committee’s recommendation; that the Department of Health and Social Care should develop a proportionate, time limited, mechanism to independently investigate and address those cases were legitimate questions or grievances remain. There is also a need to address local complaint handling and investigations in the NHS to ensure that there are fewer failed investigations in the future, we address this in the next chapter. (Paragraph 59)

Improving public services

20.We welcome the Ombudsman’s commitment to providing further information on whether his recommendations are implemented in the future. It will also be important for the PHSO be able to provide evidence on whether the implementation of its recommendations have the positive effect on services it expects; both for its own learning and in any assessment of the PHSO’s value for money. (Paragraph 62)

21.We therefore recommend that the Ombudsman publishes in his annual report how many of his recommendations are implemented as well as how many are accepted. In the longer term, we also recommend PHSO seeks to evaluate the impact of its recommendations. (Paragraph 63)

22.We welcome the recent announcement of a joint committee of both House of Parliament to carry out pre-legislative scrutiny on the draft Health Service Safety Investigations (HSSI) Bill. However, the permanent establishment of an independent Health Service Safety Investigation Branch with a remit to improve local investigations is a necessary but not sufficient step to improve local complaints handling. We commend the focus in the PHSO’s draft strategic plan to using its own learning to help improve complaints handling in bodies in jurisdiction, especially within the NHS. However, improving complaints handling is the responsibility of the leadership of the NHS, and ultimately Ministers. This includes ensuring that local NHS leaders prioritise and properly resource complaints handling. (Paragraph 67)

23.The Department of Health and Social Care should provide the Committee with an update on its progress on dealing with the “unfinished business” of local complaints handling the then Minister Ben Gummer MP identified in 2016, and the improvements that it has made. The Government should also ensure that once the Joint Committee scrutinising the HSSI Bill has reported that the revised Bill is introduced to Parliament as quickly as possible. (Paragraph 68)

24 April 2018