Health and Community Care Committee, 05 Dec 2001

Meeting date: Wednesday, December 5, 2001

Official Report 233KB pdf

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Scottish Public Sector Ombudsman Bill: Stage 1

I say good morning to Dr Dyer and Professor Cheetham. We were just about to go into private session but, as you have arrived, we have changed our minds.

We return to taking evidence on the Scottish Public Sector Ombudsman Bill. Do you wish to provide a statement before members ask questions?

It might be helpful if I make a short statement. We have also submitted a paper to the committee.

For those who are not familiar with the Mental Welfare Commission for Scotland, it may be helpful to explain what it is and why we have an interest in the bill. The commission is an independent statutory body set up under the Mental Health (Scotland) Acts 1960 and 1984. It now has duties under the Adults with Incapacity (Scotland) Act 2000.

The commission has a wide remit to protect people who might be vulnerable through mental disorder. That remit gives us duties in relation to health and social care services. We have specific duties to investigate where there might be deficiency in care or ill treatment of people who might be vulnerable through mental disorder. That has opened us to receiving complaints.

It is important to understand that the Health Service Commissioners Act 1993 prevented the ombudsman from investigating matters that were within the remit of the commission. To date therefore, the Mental Welfare Commission for Scotland has carried out an ombudsman-like role on complaints relating to mental disorder. The exception is that the commission could extend beyond the health service—in hospital, in the community or being provided with a service for their mental health problems from health or social work departments. The commission can take an interest in such people and that gives rise to issues that are mentioned in our submission.

We are happy to support the proposal in the bill that, in future, all complaints should be dealt with in the same way and that people who have a complaint relating to a mental disorder should be in the same boat as people with a complaint relating to a physical disorder. It makes sense that there should not be discrimination against people with mental disorder.

The new public sector ombudsman will have clearer powers and protections compared to those of the commission. Removing complaints from the commission's remit will leave us free to concentrate on our protective duties and to carry out investigations into deficiency in care. We therefore support that idea.

Do you think that the Executive consulted sufficiently on the proposals in the bill?

I would say that it did. There were two phases of consultation, both of which we contributed to. We were happy to be consulted in that way and feel that we had ample opportunity to put our views.

I thought it was a model consultation and that both sets of papers that were produced were clear and helpful.

Are you satisfied that the points that you raised have been taken on board?

One or two points that we raised have not been taken on board. One of those was pointed out in our submission. That is the significant anomaly whereby complaints to do with health services that affect clinical judgment can be investigated in total by the new public sector ombudsman but, for complaints arising in other quarters—for example, concerning local authority services—the new ombudsman will be confined to considering maladministration and not the substance of the decision or action.

That is a continuation of the current position, but we have always found that to be an anomaly. In our submission, we have pointed out how the process could work in a strange way: when someone makes a complaint against an NHS-based mental health service, the judgment of the staff will be examined and investigated but, when that complaint extends into local authority services, the investigation will be narrower. That is a significant anomaly, which, as far as complainants are concerned, seems to indicate a degree of unfairness. However, in the paper setting out the responses to the consultation process, we read recently that only a few people and organisations supported the extension of the ombudsman's powers to investigate the judgment and decisions of professionals other than those in the health service.

The joint future approach is that health and social care should be integrated as far as possible. Given that approach, if someone receives a service from a community mental health team, which might be jointly funded and managed by health and social work departments, how is the ombudsman to deal with that complaint? He will be able to investigate the substance of the health aspect of the complaint, but only the administration element of the social work aspect. That seems an anomalous division.

Will that create difficulties for members of the public who wish to make complaints? Will they be unaware of such restrictions?

It will be hard for them to understand why part of their complaint can be investigated fully, as they might wish, and another part can be investigated only in terms of administration.

In the health service, a significant proportion of complaints are about mental health services. Last night, I looked at the figures for complaints that were made to the Mental Welfare Commission and those that went to the health service commissioner. In the past two years, around a third of complaints concerned mental health services—those were the complaints that came to us.

At present, most of those complaints do not affect local authority services. However, as Dr Dyer said, services will become more community based and there will be more joint working. That means that the system will confuse a fair number of people, although it could be argued that some people would be unfairly dealt with if two systems were to co-exist.

Will the ombudsman service that is proposed in the bill be open, easily accessible and accountable, as the Executive claims? You have given us one example where elements of what is proposed will act against those principles. Can you give us others?

I am sorry, but I did not catch the first bit of Mr McAllion's question.

The Executive claims that its proposed ombudsman service will be open, accountable and easily accessible. Do you agree that that will be the case or are some of the proposals flawed?

The proposals on openness are good, as are the proposals on the range of ways in which complaints can be received. For example, evidence can be received orally from people who have communication difficulties and complaints do not have to be filtered through an MSP. In my view, which is shared by the commission, the suggested arrangements will promote openness and easy access.

Making a complaint is intimidating. It is a long and weary process, as we know from talking to the people with whom we have worked. To a substantial extent, the openness and accessibility to the ombudsman will depend on the quality of information that people get at the primary complaint stage about the right that they have to take their complaint further. In our experience, the clarity and efficiency with which health authorities and local authorities impart that information is a bit variable. The information would need to contain more than a sentence saying, "You can go to the ombudsman." If the objectives of openness and ease of access are to be achieved, the process needs to be explained further.

We are attracted by the one-stop shop idea, which we think will improve accessibility to the public. We thought that, paradoxically, there might be too much accessibility in the proposal that bodies should be able to request an investigation by the public sector ombudsman. The commission was not absolutely unanimous on that, but we had doubts about whether it is wise to allow bodies, of which there may be criticism, to ask the ombudsman to investigate them. We are inclined to think that the ombudsman is there for the punter with a grievance and not for an organisation to seek some sort of rubber-stamping. If there was subsequently a complaint from a member of the public against that organisation, the ombudsman's independence might be prejudiced. We urge that some thought be given to that.

During the consultation, consideration was given to two models of one-stop shop. One was a kind of college of ombudsmen, where they share the same building and support staff but keep their own specialisms, so that there would be a health service ombudsman, for example. The other model was an all-encompassing public sector ombudsman, with deputies with specific responsibilities. Which of those models do you prefer and why?

We did not have strong views about that. We were happy to accept the model proposed in the bill, where there is an overall public sector ombudsman to cover all the functions and deputies to whom the various functions are divided out.

We have heard some concern this morning that the remit of the deputy ombudsmen has been left to the discretion of the ombudsman. Some people would like it to be set down in legislation that, for example, one of the deputy ombudsmen should be responsible for the health service and should retain that specialism. What is your view?

We assumed that one of the deputy ombudsmen would have a health function. We would be concerned if there was doubt about that, as there is clearly a substantial role for a health ombudsman.

Are you concerned that it is being left to the discretion of the ombudsman to detail what his deputy should be doing? Should that be in the bill or issued in guidance from ministers?

We are not too concerned about that. We assume that appropriate decisions will be made about the division of functions. The policy memorandum indicates that one of the deputy ombudsmen is likely to have the health function, so we are fairly confident that that would be so.

Five sections of the bill give detailed provision for investigation procedures by the ombudsman. Is that too restrictive? Should more be left to the discretion of the ombudsman about how to conduct his business or is the balance in the bill about right?

The bill is not too prescriptive. It leaves a lot of the nitty-gritty of how investigations are carried out to the ombudsman.

That is right. Our experience from our connections with the health service commissioner show that, over time, procedures are evolved to make investigations more open. Moreover—this is significant in the most recent health service commissioner reports—not all complaints are appropriately dealt with by a full investigation. In many cases, it is appropriate and sufficient to make inquiries of the relevant authorities, to suggest remedies, perhaps to meet the complainant and to write a report on that basis. Most of our detailed work on mental health complaints is not based on a full and formal investigation of everything that happened during the incident. Increasingly, the health service commissioner operates in that way and it seems to me absolutely right that the ombudsman should have discretion to make those decisions.

In your view, does the bill allow the ombudsman that discretion, or should it contain a specific additional right giving the ombudsman that discretion?

I think that the provision is sufficient as it is, but I have not spent a lot of time focusing on the precise procedures for the ombudsman.

You are saying that the bill should allow for such discretion.

The policy memorandum is clear about not being prescriptive about procedures. If an act stipulates procedures, the procedures will be out of date before the act is out of date. I would be against that.

Policy memorandums are less binding than legislation.

Yes, they are.

I want to turn to the remit of the ombudsman. To what extent should the ombudsman consult the Mental Welfare Commission on complaints about mental health services?

As members will know, the Millan committee, of which Dr Dyer was a member, made that proposal. The second consultation paper suggested in fairly prescriptive ways that the public sector ombudsman should consult the commission on mental health complaints. We responded to the consultation document by saying that we did not think that Millan intended that or that it would be appropriate for the new ombudsman to consult us on every mental health complaint. That could lead to a parallel system of investigation, which would rather defeat the objective of the one-stop shop.

We made an alternative proposal for a memorandum of agreement in which we would try to define significant complaints, such as complaints concerning detention, where the health service ombudsman should consult the commission to seek advice on specific matters. We proposed to deal with that through a panel within the commission. In other words, we were saying that we did not think that the ombudsman should consult the commission on all occasions. The bill does not oblige the public sector ombudsman to consult us.

Do you think that it should?

No. Broadly, we are content with the situation. It would be hard to frame a provision that said that in some cases the ombudsman should consult the Mental Welfare Commission. We have suggested a provision that says that the public sector ombudsman should consult bodies where there are shared interests in particular circumstances or complainants. Such a provision would allow bodies such as the Mental Welfare Commission to prepare a memorandum of agreement with the ombudsman whereby he or she could consult us in specific instances. I suspect that we could establish such an arrangement as a matter of good will, if the ombudsman thought it important. However, if the committee wanted to ensure that approach, a provision that gave the ombudsman a power to establish such arrangements might be appropriate.

Outwith our remit, another organisation with which the ombudsman might want to have such an agreement would be the Scottish Commission for the Regulation of Care, which will have a large complaints function. How that would be dealt with could be covered by a memorandum of agreement.

In both cases you would wish memorandums of agreement rather than something more solid that was enshrined in the bill. I am assuming that you are referring to issues or individual cases that raise what you consider to be national issues.

The provision could apply to issues and individual cases where the ombudsman thought that there was some matter about which we would have particular expertise, such as a complaint involving inappropriate detention.

As you know, none of the currently established public sector ombudsmen has powers to enforce their recommendations or to impose sanctions of any kind on an authority or body that fails to remedy an injustice. The Scottish Executive considered whether the ombudsman should be given enforcement powers, but the policy memorandum says that there was general agreement following consultation that

"it should be left to the Scottish Ministers to take whatever enforcement action is considered necessary in any particular case, or the Parliament where it is not satisfied with the action taken by the Ministers."

Do you agree that the powers of enforcement should be left to the discretion of the Scottish ministers or Parliament?

Yes, we are content with that. We have experience of a similar issue. Although people sometimes say that the Mental Welfare Commission should have stronger powers, so that we could enforce our recommendations and reports of inquiries, we believe that we should not. Our duty is to investigate, to reach conclusions and to make recommendations; others have executive power and responsibilities to ensure that our recommendations are carried out. That is the correct division of functions. The ombudsman will be able to make his report, but it will be up to others—including ministers and the Parliament—to ensure that the recommendations of those reports are carried out.

Is it satisfactory that the bill leaves enforcement to the discretion of Scottish ministers or Parliament?

Yes. The ombudsman's role is predominantly to investigate and make recommendations. To give the ombudsman executive power to enforce recommendations would be to alter that role.

An earlier witness rather objected to the bill's use of the word "investigation" because, as you have indicated, these matters can often be solved informally. I, too, have doubts about the use of that word; a constituent received a piece of documentation, which referred to an "investigation" that consisted only of a letter and a phone call. We may be deluding the public, who will think that there will be a thorough investigation every time.

There is also strength in allowing for an early attempt at conciliation without a full investigation. However, there must be the possibility of a full and rigorous investigation if that fails.

We found it extremely useful to meet complainants to find out their desired outcome of the complaint. By the time that they get to the ombudsman stage, their views about what would be a good outcome may be very different from what their views were at the beginning of the process. Earlier, we talked about how prescriptive we should be on the new ombudsman's function. We do not think that there should be too much prescription, but meeting complainants has proved useful for us. It takes up time but it allows for the early resolution that Dr Dyer mentioned. Perhaps the new ombudsman will consider doing that in certain circumstances. That is an example of the need for flexibility.

My final question concerns the bill's power on the option of last resort, under which it is proposed that organisations should have the power to request that an investigation be undertaken where there has been public criticism but no direct complaint to the ombudsman. Do you agree with that? Would your organisation wish to exercise such an option?

As I said, we have strong doubts about that power. It seems to us that the ombudsman will exist for the individual who has a grievance against a listed body. If, in the face of criticism, a listed body can request an investigation by the ombudsman, that might prejudice further complaints against that body, which will already have been investigated and perhaps given a clean bill of health by the ombudsman. That might put into question the independence of any further investigation into that body by the ombudsman. We believe that the ombudsman should be reserved for individuals. We have strong doubts about organisations being able to request investigations.

The policy memorandum says that the one-stop shop should help to resolve problems of co-operation between the existing ombudsman services in Scotland. Can you provide examples of problems with co-operation? What implications do those problems have for the current service?

As a quasi-ombudsman body, we have not been aware of co-operation difficulties in our relationships with the health service commissioner and the commissioner for local administration, who are the two ombudsmen with whom we have had contact. The relationships have been easy, friendly, constructive and helpful, and we have had regular meetings.

On the scope of investigatory powers of the different ombudsmen, there has been a difficulty for complainants who have made a complaint about a mental health service in a local authority. They have found that the commissioner for local administration could investigate not the substance of the complaint—the decision that had been made by a social worker or mental health officer—but only the way in which the complaint had been handled and other matters of maladministration. We, on the other hand, could investigate the whole case, which is what the complainants wanted. We were in a rather anomalous situation in which the commissioner did one thing and we did another and we had to tie that up rather closely.

That is a good example of the difficulties that we described earlier. Dr Dyer is a psychiatrist and I am a social worker. Somebody could complain about the services that we had offered jointly. Everything that Dr Dyer had done—the treatment, the decisions that he had made, the medication that he had prescribed and the regime that he had recommended—could be the subject of a complaint and an investigation. All that could be investigated in my case is whether I had followed the correct procedures in making an assessment—for example, the right processes in arranging for a service to be provided. That is unfair, as it lets me off the hook and I do not think that I should be off the hook.

Let us pursue that a bit further. The bill seeks to ensure improved consultation and co-operation between the new ombudsman and the other statutory ombudsmen and commissioners. How do you think that that will work in practice? Do you think that it will help to resolve the difficulties that you have just highlighted?

I guess that having a one-stop shop will help. If one is just down the corridor from somebody, it is a lot easier to have frequent communication. If the public sector ombudsman and related commissioners are in the same building—which would be possible—that should encourage a collaborative approach, which is desirable.

The policy memorandum states that establishing a one-stop shop should help co-operation with similar bodies in England and Wales and with the Auditor General for Scotland. To what extent, if at all, is co-operation with those organisations a problem at present?

Our former chairman, Sir William Reid, had been the ombudsman for England and Wales, so we had some useful informal contacts with the ombudsmen and associated organisations in England and Wales. However, we have not needed to have much contact with them. If we had wanted it, we would have had it. We read one another's reports. It is important that, in the evolution of the investigation of complaints—for example, whether individuals should be named, which is what the health service commissioner decided might happen if general practitioners remained obstructive and did not co-operate during investigations—we read those reports and, if necessary, talk about matters of common interest. However, we have not had to do much of that, although I do not think that it would have been a problem if we had sought such co-operation.

I found your submission thorough and helpful to our purposes. If you have a bee in your bonnet today, it is probably about the local authorities needing equal scrutiny. Given that the Millan report mentioned that there was no arrangement for complaints by mental health service users against local authorities, are you satisfied by the transfer of the responsibility of the commissioner for local administration to the new ombudsman? Are you satisfied that complaints about local authority mental health teams will be scrutinised equally?

Yes, but those complaints will be restricted. The ombudsman will be able to look only at the process, not the substance, of the complaints. In other words, the ombudsman will be able to look only at complaints of maladministration. However, if the complaint had been about the health service, he or she would have been able to deal with the whole substance of the complaint. That is the essence of our concern.

Added to that is the increasing deliberate blurring of the boundary between health and social work. Although we welcome that, it will be difficult to separate a social work complaint from a health complaint, so allowing investigation of the substance of one and just the process of another does not make a lot of sense. We understand the difficulties—local authority functions are carried out with the authority of elected representatives, so it is difficult for an appointed official to investigate those functions. However, that leads to a serious anomaly, which the public will find hard to understand.

We will continue to focus on the patient's journey, which is our main concern.

In paragraph 9 of your submission, you mention the problems that you feel will arise as a result of clinical judgments—but not professional judgments—being open to scrutiny. Will you clarify what you mean by that?

We are thinking about somebody who lives in the community and receives mental health care from a community mental health team, which might have a manager who is appointed jointly by health and social work. In the future, the team might be funded jointly via health and social work. The care plan will be multidisciplinary and agreed by social workers and health people. If the person who receives the care complains about an aspect of their treatment, is not satisfied with the local resolution and goes to the public sector ombudsman, who is to say whether their complaint is a health complaint or a local authority complaint? The service is deliberately blurred—it is provided jointly by health and social work.

As a result, the public sector ombudsman will have difficulty. They will be able to look at clinical judgment, because that is a health service thing, but not social work judgment. Teasing those apart will prove difficult, given the structure that is built into the bill. That structure is simply a bringing together of the existing arrangements for the health service ombudsman and the local government ombudsman.

So you are saying that not only will local authority input be excluded, but—taking the patient's journey as a whole—complaints into NHS decisions could be undermined.

Precisely. In our experience, the most passionate complaints of most people concern the action that was taken or the service that was given or the decision that was made. People complain about delays and the fact that they were not properly consulted and other matters that are properly investigated as maladministration. However, the issues that they really mind about are, for example: "I don't think that you should have told me to go to that day centre"; "It wasn't right for you to take my mother into care"; and "It wasn't right that you refused me that domiciliary service."

In the social work examples that I used, it would not be possible to investigate those matters of professional judgment in their entirety. It would be possible to examine whether the social worker had gone through the agreed protocols for assessment, but not why a decision was made and whether it was the right decision. Such areas are difficult—professionals like to talk about their clinical judgment and their professional discretion. As we were coming here, we talked about how interesting it was that the medical profession—as far as we could remember—went along reasonably easily with the decision that the health service ombudsman should investigate clinical judgment. Although we would have expected a lot of opposition, that state of affairs is just accepted in the health service.

We think that the fact that other matters will be excluded is an anomaly. I used the example of social work because I know about that field, but the policy memorandum also states specifically that

"matters directly relating to education"

will be excluded. You can imagine that there would be a huge hoo-hah about some aspects of education, such as teachers' discretionary decisions and the curriculum, which are difficult. Why should one be able to examine doctors' and nurses' judgments but not anyone else's judgment?

I want to draw your attention to a further anomaly that is raised in your submission. Paragraph 8, which concerns voluntary and independent providers, states:

"It is not clear why the Ombudsman can conduct such investigations while he or she is precluded from investigating the actions of independent providers who are commissioned by local authorities which at present commission by far the majority of independent services."

The voluntary, independent and private sector provides an enormous proportion of care in the community. Is it too far removed from the kind of scrutiny that we want along the patient journey?

Yes. It is far removed in two ways. I am baffled by the part of the bill that will mean that the ombudsman can investigate only independent providers that are commissioned by the health service and not those in other circumstances. I think that complaints about voluntary and independent providers will go to the Scottish commission for the regulation of care. However, it is not yet clear what form the last stage—the independent investigation—will take under the commission. Proposals are out for consultation. We do not know whether the ombudsman will be able to investigate voluntary and independent providers, but he probably will not be able to, because he can investigate only listed authorities. Even if he could investigate those providers, he would be able to investigate bodies that are commissioned by a local authority only on charges of maladministration and not for the substance of what they do. That is peculiar. Some thinking must be behind it, but I cannot elucidate it.

You made a point about local authorities that commission care. Is the situation different for someone who is self-financing?

Yes. My point was about local authorities that ask voluntary or independent providers to provide individual care for a person or, as often happens, that buy a number of beds or places in a service and refer people to it. In such cases, the local authority pays and the voluntary or independent body provides the service.

What about someone who is self-financing?

As I understand the system, people who are self-financing will have to complain to the Scottish commission for the regulation of care as part of the primary stage of a complaint. However, it is not clear from the proposals for the commission whether the ombudsman will have a function in relation to the commission's investigations. The commission is a listed body and the ombudsman can investigate its actions, but we do not know whether he can investigate a complaint that the commission is investigating. That has not been worked out yet.

Although the problems that you raised about local authorities will not be dealt with by the public sector ombudsman, will there be recourse through the Scottish social services council and the Scottish commission for the regulation of care?

It depends on the type of complaint. A complaint about the provisions in a care home will go to the commission and should do so as part of the primary stage. A complaint about a social worker who is alleged to have made a wrong decision about removing a child from home, or not placing a child in a care home, will not go to the commission, because it will regulate care services.

That is confusing.

I want to return briefly to the question whether the ombudsman should be able to investigate the professional judgments of social workers. In the real world, the professional judgments of social workers are often constrained by budgetary disciplines. They cannot give the package of care to the patient because they cannot afford it. Are you suggesting that the ombudsman should be able to investigate such a complaint, overturn the social work committee's decision that the budget does not meet the needs and force it to reprioritise its budget? Should it be the ombudsman or the elected social work committee that decides how to allocate the resources?

The ombudsman could not overturn a decision. We talked earlier about whether he would have a right to remedy something.

But the ombudsman could uphold the complaint, which would put the social work department in a serious position.

He might investigate a complaint and find that a decision was reasonable within the constraints of the available resources. He might then have to criticise the distribution of resources. One sees that happening with complaints that are investigated in the health service. There are strong criticisms of the available resources.

One of the marvels of an ombudsman is that he or she has the independence to make such criticisms. We do not argue that an ombudsman should somehow magic up resources to change everything. However, an ombudsman provides an independent shaft of light into what goes on. It would be unfair for an individual professional to be criticised for making a decision, or for failing to provide a service that was not available but which everyone thought should be. An ombudsman's report could make that situation plain.

So the ombudsman's report would highlight the system's deficiencies rather than a social worker's decision.

Indeed. That is what the health service ombudsman does.

You talked about the blurring of the edges between the health service and social work and about the complaint processes in the health service and local government. However, we are developing joined-up delivery that involves more than one employer. Surely it is anomalous that complaints procedures will be different, depending on whether an individual is employed by the health service or by the local authority. That situation is difficult to understand; it could exacerbate the conditions that a complainant with a mental health problem was trying to complain about.

That is the point that we tried to make in our submission. Services on the ground are being encouraged—rightly—to blur boundaries to offer seamless care to individuals, so that it does not matter whether the service comes from the health service or social work, or a combination of both, but that individuals get the service that they need.

Higher-level bodies such as the public sector ombudsman and those that are involved in the complaints system do not yet reflect the coming together of the on-the-ground services. That means that the ombudsman could fully investigate a health service complaint, but could consider only the administrative issues of a local authority complaint. That situation must be sorted out.

I hope that the Local Government Committee will take those points on board and that the civil servants who are present will also consider the matter.

The Adults with Incapacity (Scotland) Act 2000 gave the Mental Welfare Commission for Scotland the duty of investigating complaints that are made about welfare attorneys, guardians or other authorised persons when the commission is not satisfied with a local authority's investigation. Given the proposed new arrangements, do you believe that the commission should retain that power or should it be passed to the new ombudsman?

That is a good question; I am glad that it has been raised. It is an anomaly that a complaints function that derives from the Mental Health (Scotland) Act 1984 is to be removed from the Mental Welfare Commission for Scotland and given to the proposed public sector ombudsman, yet the Adults with Incapacity (Scotland) Act 2000 gave us a new specific function, as you said, to investigate complaints against welfare attorneys and guardians, and people with welfare powers who had made intervention orders. We exercise that function only as a back-up if the local authority has not investigated or if we are not satisfied with the local authority's investigation.

The simple solution to the anomaly might be for such matters to be the local government ombudsman's responsibility. However, difficulties might arise in that some functions would be carried out by private individuals and I do not think that the ombudsman would be able to investigate private individuals. Even if some functions were performed by local authority officers—a social worker, for example, could be a welfare guardian—there is the difficulty, which we discussed, that we could investigate the whole substance of the complaint, but the public sector ombudsman could not. We do not know the solution, but there is an anomaly—we still carry a complaints function under that act.

Would a possible solution be that you retain that function?

In the immediate future, it is difficult to see how things could be different, but I would be interested in what Juliet Cheetham thinks. Given that some functions would be performed by private individuals, an alternative solution is difficult to see.

If the one-stop shop were truly a one-stop shop and excluded us completely, the new ombudsman would be able to investigate how the local authority had conducted its investigation of a private individual, which is how the commissioner for local administration operates. However, as we said, they would not be able to investigate the substance of a local authority person's decision and would probably be excluded from considering the actions that had been taken by a private individual because of the prescription about investigating public authorities. Something is hanging in the air that we do not know how to resolve neatly.

Would there be any downside to your retaining that function?

The downside would be that things would be a bit confusing. The one-stop shop is nearly a one-stop shop, but it has a little alleyway up the side. We have no experience of investigating such complaints or of considering the local authority investigation of complaints, so we cannot speak from experience, which I like to do when I am talking to groups such as the committee.

The Executive, in its summary of response to the second consultation paper, states that the proposals on staffing were unanimously agreed to, but in written evidence to the committee, the health commissioner expressed concern about the transfer of staff. Concerns have also been expressed this morning. Notwithstanding the comments that were made about the possible benefit of having a deputy commissioner who would be responsible for health in particular, is there a danger that the specialism that has been developed by staff working in the various departments could be diluted?

We understood that the proposal was that existing staff would be able to transfer if they chose to do so, so that expertise would be retained.

If no specialist areas were designated to deputies, for example, perhaps staff from one area would work in another area. Is that a potential problem? Should areas be defined so that staff specialism is maintained?

That would be desirable. Some skills in investigation would be transferable across different subject areas, but there would be a need to build up knowledge and experience of particular specialisms such as health and to understand the structures and different bodies that are involved. Sub-divisions that would allow a build-up of particular experience would be desirable.

Are there any additional proposals that you have not mentioned that should be included in the bill?

We would like to ask a question. We talked about the Adults with Incapacity (Scotland) Act 2000, under which important public functions are carried by the public guardian and other authorities. The public guardian does not appear to be a listed authority in the Scottish Public Sector Ombudsman Bill. Is it intended that the public guardian's functions will be open to scrutiny by the public sector ombudsman? Court administration will come under the public sector ombudsman—we welcome that—but we do not know whether the public guardian is broadly included in court administration or whether there should be a specific reference to the public guardian in that role as one of the listed bodies.

Members know that the public guardian has extensive investigatory functions, which he carries out energetically. We share information and are aware of investigations in which people may have welfare issues. Some people will not be happy with what the public guardian does and I am not sure what they should do about that.

I defer to the convener for further information. I am afraid that I do not know the answer to the question.

We will seek information from the Executive on the points that have been raised.

As there are no further questions, I thank the witnesses for giving evidence. The committee will now move into private session.

Meeting continued in private until 12:01.