Introduction
In January 2016 a pressure group called "phso the facts" was setup to address the shortcomings of the PHSO [Parliamentary and Health Service Ombudsman] [Updated Novermeber 2022]
The banner for PHSO Pressure Group and its concerns about new legislation for Public Service Ombudsman was "PHSO - The Facts"
This has now apparently morphed into two organisations:
- Patients First - https://patientsfirst.org.uk/
- PHSO The True Story [PHSO the FACTS] - https://phsothetruestory.com/home/
Commentary made in 2016
Primary concern is lack of public consultation surrounding new Ombudsman legislation. Over 98,000 people have signed a Which? campaign petition to improve complaint handling for public service and this includes the Ombudsman service. There is public interest, but no public engagement. (158 responses to consultation and no members of the public listed).
Second significant concern is lack of parliamentary consultation and the need to raise awareness of MPs and members of the House of Lords. The consultation as it stands (Gordon review and government response) does not go nearly far enough to restore public confidence. It provides only for a restructuring of service delivery with the merger of PHSO and LGO, but says nothing about improving poor service standards and investigation techniques.
Health Service complaints are of particular public interest due to media attention (Mid Staffs, Morecambe Bay, Sam Morrish case). The new IPSIS body will be staffed by clinical experts and has a wide-ranging Expert Advisory Group (EAG) to guide its development. https://www.gov.uk/government/groups/independent-patient-safety-investigation-service-ipsis-expert-advisory-group#membership The new legislation for the Health Service Ombudsman, which will deal with thousands of NHS complaints, has no steering group despite a recommendation for such a group in the original Gordon review. Decisions are being made entirely by the Cabinet Office.
Finding maladministration through investigation is a flawed model and has been from the outset. Identifying maladministration is exceptionally difficult particularly where there is no clear definition or body of case studies to guide investigators. Without maladministration there is no uphold, no remedy and no improvement to services. We need a more flexible approach where discretion can be taken into account. In Scotland the Scottish Public Service Ombudsman (SPSO) can take discretionary decisions into account when considering health complaints.
“They [SPSO] can investigate allegations of maladministration and/or service failure but are normally excluded from considering the merits of decisions on the basis of their legislation which says they cannot question the merits of a discretionary decision made without maladministration (section 7 (1)). This is different for health complaints where they have been given the ability to consider clinical decisions (section 7 (2)). This means they can investigate complaints about clinical judgment and assess whether decisions were reasonable.” https://webarchive.nrscotland.gov.uk/3000/https://www.gov.scot/Publications/2015/09/4656/4
There has been no real discussion on Ombudsman efficiency, effectiveness and economy – a key area. PHSO cost £37 million in 2014/15, and reported on 4,159 investigations from a total of 6,815 complaints made that year. Only 30% of the complainants received any type of positive uphold and only 10% of investigations received full uphold. Partial uphold may well have been for minor issues and leave the complainant dissatisfied. Cost per investigation averages at £8,896. Investigations are costly, time consuming and in two thirds of cases fail to deliver remedy to the complainant or improvement to service delivery. Alternative processes should be part of this discussion such as ADR and mediation in line with the EU directive on ADR for consumer issues. http://ec.europa.eu/consumers/solving_consumer_disputes/non-judicial_redress/adr-odr/index_en.htm [20th March 2023 - link fails, but web site available]
When Scotland responded to the same crisis in complaint handling they set up a ‘Fit-for-purpose Complaints System Action Group’ (FCSAG) to ensure that all stakeholder needs were considered. Where is the equivalent group for England?
“Following the Crerar Review, the Scottish Government established a Fit-for-Purpose Complaints System Action Group. This group (FCSAG) was asked to develop proposals for simplifying public service complaints handling processes and streamlining the complaints handling landscape. Membership was drawn from consumer representatives, service providers and complaints handling organisations, and policy makers. The group was led by Douglas Sinclair from the Scottish Consumer Council.” https://www.valuingcomplaints.org.uk/review-of-complaints-handling-in-scotland/
Under the Public Service Reform Act (Scotland) 2010, the SPSO has the power to publish standardised complaint handling procedures for listed authorities and can compel implementation. SPSO also has a duty to monitor and promote best practice.
“As stated above, as well as complaint handling, the SPSO has a related role in setting complaint standards and has established complaint handling procedures which are now in use across Scotland. They can issue a declaration of non-compliance if an organisation fails to comply with a model process they have issued and also have a duty to promote best practice in complaint handling. (sections 16A-G)” https://webarchive.nrscotland.gov.uk/3000/https://www.gov.scot/Publications/2015/09/4656/4
Response from UK government to the same issue here denies equivalent power to the Ombudsman. Quote from Oliver Letwin’s response to the consultation.
“We want PSO to use its expertise and insight to monitor and champion improvements in complaints handling. It will be given express powers to publish guidance, reports and training materials promoting best practice in complaints handling including principles, processes and analysis. This supports the creation of a ‘complaints culture’ in which the learning from complaints is disseminated widely and built upon while allowing those delivering public services to remain in control of, and accountable for, the design of their own complaints systems.” https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/486797/PSO_-_Consultation_Response_-_Final.pdf
Without full parliamentary or public discussion the Cabinet Office has already decided that the new Ombudsman will not be given any binding powers nor will it be granted own initiative powers of investigation. Is it appropriate for the Cabinet Office to make such important decisions before the matter has been discussed in the house?
“We will not make the findings of PSO binding. Whilst we understand the attraction of ‘own initiative’ investigations, there is a risk that the introduction of such powers could detract from PSO’s role in putting things right for the individual citizen. Consequently we do not propose to create these powers for the PSO.” https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/486797/PSO_-_Consultation_Response_-_Final.pdf
This decision is in sharp contrast to other Ombudsman schemes across the UK and internationally as outlined by Richard Kirkham, academic and international authority on Ombudsman services.
“The second radical option was for the ombudsman to be encouraged to become more of a preventive mechanism than a reactive complaint-handler. But the Response firmly rules out providing the PSO with an own-initiative power of investigation because ‘there is a risk that the introduction of such powers could detract from PSO’s role in putting things right for the individual citizen’ and create ‘further confusion in an already complex landscape’ of regulators. Such risks do not seem to have prevented the Northern Ireland and Welsh Assemblies from pushing ahead with the proposal to give devolved ombudsman schemes enhanced powers, or led to equivalent powers being removed from ombudsman schemes in much of the rest of the world. It is also out of line with the Home Office’s moves to expand the investigatory capacity of the IPCC.” http://www.ombudsmanassociation.org/ma/blog/?p=506
Summary of Concerns
- Our concern is that there has been insufficient discussion both in parliament and in the public domain.
- The legislation has already become watered-down and will therefore not be effective in delivering remedy and improvement to service delivery.
- The Cabinet Office are maintaining a control which should be shared by a cross-party committee and interested stakeholders.
- The opportunity for radial reform of a key democratic process will be lost unless we alert parliamentarians, the public and the media to the importance of this new legislation.