Complaints System (Public Sector Ombudsmen)
The next item on the agenda is consideration of the Scottish Parliament information centre report about modernising the complaints system. We decided earlier to have the discussion in public and then to make decisions about the report in private session. As we have discussed this item before, I will try to speed through it a little.
We need to reach a view on certain key questions. I have read the evidence that Angus MacKay gave to the Local Government Committee in December. There is obviously a need for a post-devolution Scottish parliamentary ombudsman, and the Executive has taken advantage of that to consider the whole question of public sector ombudsmen.
The committee needs to discuss a number of questions. Should there be a one-stop shop and, if so, how should that be put together? Should there be an MSP filter or should people have a direct line to a Scottish parliamentary ombudsman? What is the role of new technology? Should we allow people to make oral submissions and use the internet?
At the moment, there is no enforcement. An interesting example was given at the Local Government Committee by the local government ombudsman. He said that no local council had gone against an ombudsman's decision in the past six years. I am not clear about the situation in the health sector, but I know that there is an element of naming and shaming when councils get taken to task.
Should ombudsmen be able to initiate investigations or should they only react to people's complaints? Is a year a reasonable time within which people must take a complaint to the ombudsman, given that the ombudsman is the last resort after people have been through the NHS complaints system or the local government complaints system? Should we have a definition of maladministration? Should we call the officials commissioners, ombudsmen or something else, such as that rather nice Spanish suggestion, the defenders of the people? Those are some of the issues that have cropped up in the papers that have been submitted to us and in the evidence that was given to the Local Government Committee.
I think that the MSP filter would be useful. A number of individuals have become professional complainers and do not go through the internal processes of local government or the NHS. A lot of time has been allocated, particularly in the NHS, to ensure that the complaints procedures are robust. We must ensure that those procedures have been the first port of call for someone with a complaint. If the individual goes through what we are calling the MSP filter, most MSPs will indicate what the complaints procedures are and strongly recommend that the individual takes that route in the first instance. That role is of benefit to the complaints system and should be retained. It is not necessary for MSPs to sign off someone's complaint or decide whether that person's case should be advanced. We do not have the right to decide that, as the person has the right to have their complaint heard.
On the time scale, a constituent of mine has a complaint with the parliamentary ombudsman that has been on-going for more than 18 months. That is unacceptable and we need to ensure that there is a speedy resolution to complaints. I think that the matter should be dealt with by the ombudsman within one year. I stress that that length of time should be the maximum, not the norm.
Another issue is that the complaint must be taken to the ombudsman no more than one year after the incident that instigated the complaint took place. If a person is unable to contact the ombudsman within a year because they are caught up in the internal complaints system of the local council or the NHS, they should not be penalised for that.
I am saying that once the matter has been sent to the ombudsman, it must be resolved or reported on within one year. I do not think that it should just be left on a shelf somewhere. We need to tie it down.
I have a few points to make. The reason that I did not raise them at the previous meeting is that we received the paper from Customer Management Consultancy very late. I have now had an opportunity to read that paper, which raises some relevant points. I put on record my call for a full and frank debate of the whole Parliament, because the issue involves housing, local government and other matters. In the interests of openness and honesty, we should have a full debate to ensure that we understand the procedure.
At the Local Government Committee, Angus MacKay said that the consultation responses would be taken on board and that detailed proposals would then be drawn up in the spring before being subjected to further consultation. At that point, further work will be done with a view to introducing legislation in the autumn. There will therefore be other opportunities to debate the issues.
I am pleased about that, as I had understood that the time scale was a bit tighter than that. There seems to be some confusion about the health commissioner and the Mental Welfare Commission for Scotland. The timetable that you have outlined would give us the opportunity to examine the Millan recommendations before proceeding.
The idea of a one-stop shop is misleading. Some sectors, such as the water commissioner, the Scottish Prison Service and schools, are not included. Many people will go along thinking that the office really is a one-stop shop, but it certainly is not.
I am also seriously concerned about the rather narrow definition of maladministration that is mentioned on page 8 of the SPICe note. There is a table showing how many cases go to the ombudsman and how many end up being investigated. If I am reading that table correctly, 257 cases went to the ombudsman in 1998-99 and 248 in 1999-2000, but only 11 investigations were carried out in 1998-99 and 12 in 1999-2000. We must examine whether maladministration is too narrowly defined. Many of the representations that we received said that we should be considering service. I realise that that extends enormously the scope of the ombudsman's role, but I think that it is something that we should debate.
I would like to know why the private health sector is not included. We need an answer to that question. We also need to know why the water commissioner is not included and why we cannot include service as well as maladministration. Paragraph 50 of the main committee paper suggests that there should be an amendment to the Scotland Act 1998. It states:
"We are not aware of any legislative provision which has substituted ‘Scottish Ministers' for ‘the Treasury', although that would be the normal approach under the Scotland Act 1998."
We need time to consider the matter in much more detail and to ask questions. I do not think that the water commissioner is as accountable as he should be. As water is still in the public sector, his is one of the sectors in which I would like much more accountability and the ability to refer complaints to the ombudsman.
The CMC paper contains too many criticisms for me to mention today. I hope that the many points of clarification that are needed will be unravelled over the next few weeks and months.
I can give a partial answer to the point that you raised about the difference between the number of complaints put to the ombudsman and the actual number of cases where a formal investigation was conducted. The local government ombudsman was questioned on that point by members of the Local Government Committee, who quoted the figures that you mentioned.
Quite a lot of mediation and conciliation goes on, and many cases were resolved to the satisfaction of the complainant, the ombudsman and the council. However, they did not go to formal full investigations although, behind those figures, work was being done by the ombudsman's office to deal with the issues. There was no clarification of the numbers, and the figures in the paper are rather misleading. It looks as though the vast majority of the complaints have been thrown out and that only 11 of them were investigated. Having heard the evidence, I do not believe that that is a fair reflection of how matters are being dealt with. That is not to say that there is no issue, but it is perhaps more complex than it seems.
It is good that John McAllion is here, because he has relevant experience. Many people seem to think that the answer to all their problems is a public inquiry. I like the suggestion about the wider role of ombudsmen as public inquiry handlers or promoters of good practice. We have an opportunity to have a more open, wide-ranging discussion, so that people are not throwing everything at the Public Petitions Committee and feeling dissatisfied if they do not get a full public inquiry—which is very expensive.
Several people have raised that point. If the ombudsman is contacted by someone with a problem and, in investigating that problem, the ombudsman finds other types of maladministration, the ombudsman cannot decide to go back and investigate those. There are different ways in which the scope of the ombudsman can be widened. That is a simple example. If, during an investigation, the ombudsmen find maladministration of other kinds, they should be able to investigate them, because their role is to promote good practice at all levels of government.
Mary Scanlon's point about the situation regarding the Millan commission is important. One of the key issues is the relationship between the health service commissioner, the NHS complaints system and people who suffer from mental health problems. Until the Millan commission reports on that, we cannot take it further. There is a wider issue. If we progress with the idea of a one-stop shop, in which one public sector ombudsman heads an office with several deputes who deal with particular fields, thus keeping the teams of experts, what do we do about mental health? It could remain a distinct operation or it could be absorbed into the remit of one of the deputes as part of a health ombudsman team. One of the submissions suggested that the Mental Welfare Commission officials should be used by the health ombudsman to work on such investigations. However, until we see the Millan commission's recommendations, we will have to reserve judgment on that. When the issue returns as legislation, that is one of the key areas to which the committee will want to contribute.
I believe that the Millan commission is reporting in March or April. Would that give us time to study the commission's findings and include them in our consideration of the matter?
The commission might be reporting a little earlier than that. We will ask for clarification from the Executive.
Are there any views on enforcement? Individuals often tell us that the public expectation of the ombudsman's role is rather woolly. The public think that an ombudsman can overturn a bad decision, whereas an ombudsman can only point out that a decision has been reached badly, and sometimes they cannot do even that. When we examined international comparisons, we saw that there was a mixture of systems. In some countries ombudsmen have enforcement powers and in others ombudsmen have no such powers. The evidence seems to suggest that enforcement powers are a double-edged sword. While they may allay some of the public's fears, by giving the ombudsman a little more clout, in Scotland the ombudsmen's achievements happen in a more behind-the-scenes, conciliatory, naming-and-shaming way without enforcement powers.
The ombudsmen should have enforcement powers. As a journalist, and at my surgeries, I have dealt with quite a number of cases over the years where people have been considerably disappointed about their experiences with ombudsmen.
The system, which was Scandinavian originally, was introduced to these islands with a great fanfare. People's disappointment hinges on the lack of enforcement powers and on the back-up arrangements—the number of staff employed by ombudsmen. The ombudsmen in each discipline address only a small number of cases. One wonders how many cases fall by the wayside because of a lack of back-up or because of difficulties with the time scale. We do not know whether people are properly satisfied with all the conciliatory moves that the ombudsmen make behind the scenes. In other words, the public do not have a happy perception of the system.
I missed a couple of minutes at the beginning of our discussion, but I hope that we are to have a full debate in Parliament on this subject. There is a problem with the time scale, because we do not want to jump the gun in relation to the Millan commission, but I would push for such a debate.
When Angus MacKay gave evidence to the Local Government Committee, he said that, as well as consulting the Health and Community Care Committee and other organisations, the Executive has been proactive by writing to 650 individuals who made complaints about services in the past year, in order to obtain their views on ombudsmen. That is a good approach; it is better than just waiting for people to come to the Executive because, as Margaret Jamieson suggested, that would have led to responses from serial complainers. We want to know how the ombudsman system deals with the average member of the public.
The nub of the issue is whether people are getting satisfaction from the existing complaints system. Anecdotal evidence suggests to me that they are not. We must establish a system that enables people to feel that their voices have been heard and that their complaints have been dealt with effectively. I assume that everyone is happy and relaxed with the term "ombudsmen".
Are members happy at the prospect of ombudsmen being able to initiate investigations? There are two schools of thought on that matter. Earlier, I raised the point that ombudsmen might pick up on examples of maladministration but would not be able to deal with them. On the other hand, the public sector ombudsmen's response was that they did not want to get sucked into what might be seen as the politically—with a small p—motivated role of instigating investigations. Do colleagues have comments on that point?
We should explore whether the ombudsmen could use other public organisations. For example, if the complaint is about financial management or the best value regime, it could be referred to Audit Scotland. We should make use of the appropriate specialist organisations.
The papers that we received on the NHS commissioner indicated that the ombudsmen cannot investigate services that are not purchased or paid for by the NHS, but we are about to commence discussion of the Regulation of Care (Scotland) Bill, which does not distinguish between those who pay the bill. It is only right and proper to refer to what we are going to discuss, as that discussion will be much wider. The bill clarifies—for me and for members of the public—what we mean when we talk about care services. It mentions independent schools and independent provision and talks about traditional NHS services and local government services—education and social work. Our response to the consultation must take account of those services. I am concerned that the consultation might preclude changes that will come about through other legislation. We must draw the Executive's attention to that issue.
The submission from the Scottish health board chief executives group, which has been mentioned several times, says at paragraph 4.7 that there is no clear boundary of responsibility. Where do the Scottish Health Advisory Service, the Mental Welfare Commission for Scotland and the Clinical Standards Board for Scotland fit into the system? We have been told by the organisations that they all talk to one another, but the situation is becoming bureaucratic, with organisations falling over one another and without any clear lines of responsibility. We are not such a wealthy nation that we can afford to pay for four different sets of bureaucrats to do the same work.
We should be looking for clear lines of responsibility. We want to make the system simpler, but it appears that more organisations are being proposed, which will make the system more confusing. As has been highlighted, in mental health alone the system will involve Audit Scotland, the Mental Welfare Commission, the Clinical Standards Board and SHAS reports, as well as an ombudsman. That will be too confusing.
I come to the discussion late on, but I am a little worried by the talk of giving new enforcement powers and powers to initiate investigations to an office that is not elected but appointed by the Executive, especially as it will enforce decisions on elected bodies, such as councils and the Parliament. The legitimacy of the ombudsmen must become part of the debate. They should not be appointed by the Executive—they should be appointed by a committee of the Parliament and accountable directly to the Parliament. That would give them legitimacy and then we could talk about enforcement powers. I am nervous about unelected people telling elected bodies what to do—that would be a bad precedent.
Historically, ombudsmen have rarely been given enforcement powers. One suggestion was that the ombudsmen could make a recommendation to Parliament on an issue. Rather than having the power of enforcement, they could have an extra power to suggest that Parliament could examine a particular issue.
It would also be possible to use the Public Petitions Committee as an ombudsman service.
Yes, but are you looking for more work?
That would beef up the work of the Public Petitions Committee considerably.
I have some sympathy with your view about the fact that ombudsmen are not elected, while other bodies are.
Are there any other comments?
What will happen next?
At the beginning of the meeting, we agreed that we would hold this discussion in public and that we would move into private session to pull together our report.