Friday 28 October 2016
The Ombudsman concept is one of Sweden’s most successful exports. It is almost as ubiquitous as IKEA, and thankfully, comes fully assembled with no flat pack version available. The IOI which is the global public service Ombudsman organisation has more than 170 independent Ombudsman institutions in membership from more than 90 countries worldwide. The concept has proven itself to be adaptable and aspirational, with new practice being developed and shared through experience and through adaptation to the changing environments within which Ombudsman institutions operate. The vast majority of Ombudsman Offices can either investigate complaints made by public service users or conduct investigations on their own initiative. This has been the case since the creation of the first Ombudsman Office in Sweden more than 200 years ago.
There are many different models of Ombudsman office in existence across the world as the institution has evolved from its original roots in Scandinavia and the public service. Ombudsman institutions now operate at national and regional level in many countries and, as is well known in the UK, the concept has also taken root in the private sector, offering independent redress to consumers.
The role of the Ombudsman has been recognised by international organisations including the United Nations, who have passed a resolution on the role of the Ombudsman in protecting human rights and the Council of Europe who called for the strengthening of the role of the Ombudsman in Europe. Ombudsman offices also take on a wide variety of other roles, such as responsibility for local government Code of Conduct issues here in Wales. I am also the Information Commissioner in Ireland. Even with the evolution and diversification which has taken place, the original vision of a Parliamentary Ombudsman with oversight of all public services continues to be a key component of good governance and excellence in public services.
The IOI has recently been consulting on a best practice paper which is particularly apposite in a Welsh context. It’s called Developing and reforming Ombudsman institutions - An IOI guide for those undertaking these tasks. It is due to be formally adopted by the IOI at its General Assembly next month.
In most regards, the PSOW is entirely compliant with the best practice guidance. It meets the requirements for independence, for powers, for appointment, removal, term of office and so on. However, there are some aspects where there is scope to further align the PSOW with international standards. One of these is access, and others have spoken of this today. The other is in the context of own initiative investigation.
The paper says that “The Ombudsman should be able to undertake investigations on his or her own initiative. On occasions, the Ombudsman will be made or become aware of possible maladministration where no complaint has been made. The reasons for this can include a reluctance on the part of complainants to come forward for fear of negative consequences or because the people concerned do not have ready access to the Ombudsman. Such investigations often consider systemic issues and ensure that the Ombudsman can be effective in tackling poor administration and improving public services.”
My own Office in Ireland has had own initiative powers since its inception more than 30 years ago. In practice, they are used very sparingly, and I will return to this point as I proceed.
The use of own initiative powers varies considerably between Ombudsman schemes. Within some jurisdictions it is used quite frequently, while in others (including Ireland) it is used far less often and considered a power required only for special situations.
A recent survey of Ombudsman schemes across Europe conducted by my Office (on behalf of IOI Europe) found that, while not all institutions keep separate statistics in relation to “own initiative” investigations, of those that did, the numbers of investigations conducted in a year varied significantly from 0 to 551. One institution estimated that “own initiative” investigations comprise at least 10% of its annual work.
While “own initiative” powers may be used sparingly they can nevertheless be indispensable. It can enable problematic issues across a particular sector to be addressed in a single investigation. Own initiative investigations can also allow the Ombudsman to bring to public attention matters of significant public interest. According to the IOI survey, immigrant rights was the most common example given of an “own initiative” investigation undertaken in the previous three years (for example, two institutions had undertaken investigations into conditions at immigrant detention centres). Other examples include possible complicity in rendition flights, excessive use of force by the police, the status of homeless persons, disability rights, language rights and how the health services examines and learns from complaints.
As a result of these investigations, systemic remedies can be recommended. This can, in turn, both facilitate improvements in the overall standard of public administration and enhance public perception of the effectiveness of the Ombudsman.
As “own initiative” powers do not rely on getting specific complaints on an issue but instead draw on other perhaps less traditional sources, these powers can also enable access to the Ombudsman from those least likely to complain or from “seldom heard” groups. The IOI survey found that the most common source when deciding on a topic for an “own initiative” investigation was press releases / information contained in the media. The next popular source / reason for beginning an investigation was if the topic was in the public interest. Other sources included information from the public and NGOs, information collected during inspections, information from parliamentary committees, anonymous complaints and, in one case, referral from the Prime Minister.
A key difference between an “own initiative” investigation and a more conventional investigation is the ability of the Ombudsman to conduct the investigation in a more targeted and proactive manner separate from any individual complaints. To facilitate this, Ombudsman Offices sometimes establish dedicated investigative teams within the offices to focus on these “own initiative” investigations. For example, the Ombudsman of Ontario has established a Special Ombudsman Response Team (SORT) to conduct “own initiative” investigations.
Regardless of whether there is a dedicated team assigned or not, “own initiative” investigations can be resource and time intensive. According to the IOI survey, the average length of time it takes to complete an “own initiative” investigation varies considerably between institutions. However, in the majority of cases it takes an average of six months to complete an “own initiative” investigation. This would appear to be longer than other investigations. One institution advised that “own initiative” investigations are prioritised ahead of other investigations; however, another institution advised that “own initiative” investigations have lower priority than investigations arising from complaints.
One institution also reported that the Ombudsman tries to complete “own initiative” investigations within a timescale that keeps the topic relevant – for example, one recent investigation was completed within three weeks. I want now to consider a short case study looking at how an “own initiative” investigations can work in practice.
On taking up my post in Ireland, I was conscious that the level of complaints about health matters was considerably lower than in other jurisdictions. I was concerned that valuable learning opportunities were being lost and that systemic failings would not be identified and addressed. In a health context, this could mean that lives were being lost or damaged unnecessarily. This has a cost for the State, given the levels of litigation involved, but this is as nothing compared to the human cost of avoidable failures in the health service.
In light of these concerns, my Office completed an “own initiative” investigation into how public hospitals handle complaints in 2014-2015. It involved four strands –
(i) inviting the public to make submissions both by completing a specially designed form to be sent back via a Freepost address or a designated email address;
(ii) organising professionally facilitated focus groups including some individuals who had complained but also some who were unhappy but had chosen not to complain;
(iii) surveying all public hospitals on their complaints process and visiting 8 hospitals for a more in-depth look at their processes (including selecting hospital complaint files for examination), as well as auditing all websites to see how easy it was to find out about the complaints mechanism and whether it was possible to make a complaint on-line, and
(iv) engaging with a wide-range of stakeholders including advocacy groups, representative organisations and sector and professional regulators using an online survey and interviews, as appropriate.
As there is no dedicated “own initiative” investigation team within my Office, the investigation team comprised three people including a retired staff member. The lead investigator spent up to 75% of her time working on the investigation over a 10 month period. The other two members of the team spent up to 40% of their time on the investigation. The work of the team had to be balanced with casework and other tasks. The financial costs of the investigation were also significantly higher when compared with other investigations, including as it did costs such as maintaining a Freepost address and, perhaps more significantly, running focus groups.
However, despite the resources required, this investigation allowed my Office to conduct a detailed and wide-ranging consideration of how the hospital complaints system was operating across Ireland. The investigation report was published in May 2015 as Learning to Get Better. It was launched at a seminar addressed by Sir Robert Francis, who produced the report on the Mid Staffs health failures. The launch included a video in which real complainants describe their frustration in trying to make their voices heard. This gave a human dimension and authority to the report which it would otherwise have lacked. Very significantly, the Chief Executive of the Health service in Ireland also spoke at the launch. The report and the video are available on our website at www.ombudsman.ie.
The recommendations were very extensive but fully accepted by the health authorities and work on implementation is ongoing. The implementation includes a completely revised complaints process, greater standardisation across the health service, reorganised complaint handling arrangements including designated individuals with responsibility at hospital group level, new arrangements for making learning available and training for staff in how to recognise and deal with complaints.
It’s worth reflecting that the role of the Ombudsman is twofold, putting things right for individuals when they go wrong, and improving public services using the learning from complaints. If we’re serious about delivering excellent public services, then we need to make it as easy as possible to identify when things have gone wrong, and to ensure that we learn quickly and effectively. An Ombudsman’s Office plays a key part in this learning. Ideally, it should be embedded in the practices of public service providers. Public service leaders should embrace complaints and see them as a valuable source of learning. In practice, this does not always happen. The Ombudsman can ensure that where failings have not been accepted and addressed locally, that there is a failsafe mechanism to prevent the needless repetition of error.
In our current financially constrained environment, public servants are working under great pressure. It is inevitable that from time to time mistakes occur. An Ombudsman’s role is not to attribute blame, but to put things right for individuals and secure the necessary change. This role can be equally effective whether the investigation is driven by a complaint, or is on the Ombudsman’s own initiative.
I want to make a number of general points about own initiative investigations. Firstly, there is often confusion between systemic investigations and own initiative investigations. Any Ombudsman investigation can become systemic, if in the course of considering a complaint, or indeed, a number of related complaints, it becomes evident that the cause of any failure lies within the system, whether through problems with processes, skill availability, poor management or even legislation. The key characteristic is that the shortcoming is unlikely to be confined to a single case, but by its nature, is likely to affect others. These investigations usually lead to recommendations designed to improve services so that the problem does not recur. By their nature, they can and do save money for public services by meeting that core characteristic of efficiency espoused by the late and lamented UK Administrative Justice and Tribunals Council, getting it right first time. In a health context, for example, these can save lives, avoid costly litigation and also ensure that people do not require ongoing support because of disabilities acquired through medical errors. While in Ireland, it is evident that litigation in health matters is very high, and is costing the State a considerable sum of money, there is a strong suspicion that the lack of a well-functioning complaints system is driving some of this legal activity. Many people complain because they want an explanation, an apology if something has gone wrong, and the reassurance that their experience will not be suffered by others. If this is not available, then some, if not most, will instead turn to litigation, and inevitably will seek financial compensation and costs.
Own initiative investigation powers can allow investigations to be extended beyond the body complained about where it seems likely that the concerns revealed by an investigation are likely to arise from a systemic failure which is occurring in more than one organisation. One example is the failure of a health board to notify patients of the need to attend follow up appointments in cancer care. The software being used to manage appointments was also being used by other health boards, and thus there was a risk that the failures were affecting patients elsewhere. Without own initiative powers the investigation could not have been widened beyond the complaint originally made.
On the other hand, own initiative investigations can ensure that the voices of those who are hard to reach are heard. Learning to Get Better identified a fear of victimisation as a reason why individuals won’t complain. They may fear that their family member will be further mistreated in a nursing home in response to a complaint. They may not want to complain about their GP in a rural area because of the risk of being removed from the list, and not having a convenient local alternative. Sometimes a complaint is received from someone without the authority to complain to the Ombudsman, a staff member or concerned friend for example. In these cases, an Ombudsman can launch an own initiative investigation to ensure that any maladministration is tackled without needing to reveal the identity of the complainant or the person on whose behalf the complaint has been made.
Finally, I wanted to focus on people in minority and vulnerable groups. Typically, homeless people, people from ethnic minority communities, refugees and asylum seekers, especially where their first language is not English (or indeed Welsh), people with intellectual disabilities and other groups at risk of exclusion are poorly represented among complainants to Ombudsman offices. It’s no surprise that the research on own initiative investigations revealed that conditions in asylum seeker accommodation have been chosen for consideration. Where people have real difficulties in complaining, where they believe that they will suffer discrimination or persecution for doing so, where they have no faith in the apparatus of the State, then the Ombudsman must seek them out. The PSOW has an excellent equality monitoring system. Own initiative investigation will allow any deficiencies in access this identifies to be addressed.
For many Ombudsman Offices worldwide, they perform a regulatory as well as a complaint handling function. This is not the case in these islands, and Ombudsman offices work closely with regulators in dealing with complaints. This has a big bearing when own initiative powers are being used. Memoranda of Understanding with regulators can set out the circumstances in which cases will be pursued or referred. The cases to be selected for own initiative investigation will tend to be those which are not most suited to a regulator. This will also inevitably lead to fewer own initiative investigations being undertaken. My own office, for example, has determined that we will usually only undertake one large scale systemic own initiative investigation in any given year.
In conclusion, the Ombudsman can deliver real improvements to public services by identifying shortcomings and ensuring they are addressed. Whether though investigating complaints, or investigating though the use of own initiative powers, the Ombudsman can help to deliver cost savings by eliminating expensive systemic failure and reducing the need for costly litigation.