Hansard

As Alice Brown said, there are a number of issues that we can consider and some that we cannot. The essential definition of our jurisdiction is that we look at complaints from people who say that there has been some maladministration, administrative failure or failure in service, which is defined as either failure to provide a service that it is a function of a public body to provide—that is an interesting concept—or failure in a service that has been provided. Those elements have to be present and the person making the complaint has to have suffered some hardship or injustice. It is not enough that they simply do not like what has happened; there has to be something that can be defined as hardship or injustice.As Alice Brown said, we cannot look at decisions that are properly made. According to the legislation, if a discretionary decision is made without maladministration, the ombudsman cannot look at it. We cannot look at personnel issues—we exist to look at complaints from users of public services, not people working within them. Similarly, we cannot generally look at commercial and contractual matters. If somebody has a commercial relationship with a public body, the ombudsman does not look at that sort of thing.We cannot look at issues of academic judgment. That will become increasingly important if we take over complaints about higher education and further education We can look only at services provided by or on behalf of the national health service. We cannot look at private care, but if the NHS has bought in services from the private sector, we can look at complaints about that.We cannot look at complaints about UK Government departments; we look only at devolved matters. The parliamentary ombudsman in London still looks at complaints about matters that are reserved.As Alice Brown said, we are the last port of call for complainants. The legislation states that internal complaints procedures have to have been "invoked and exhausted" before we can look at a complaint. People often say to us, "I am exhausted by these procedures, I don't know about having exhausted them." However, unless we think that there is a good reason for people not to pursue their complaint with the body first, we expect them to have done so before they come to us. People have to go through a two-stage process at the moment before we could consider a complaint about the NHS. The first stage is referred to as "local resolution," when people try to sort out the complaint with the doctor, dentist, hospital or wherever the complaint has arisen. At the moment there is a second step, where people have the option to ask for an independent review of their complaint. There is no automatic right to be granted it, but they can ask for it. Only after that second stage can we consider a complaint about the health service. The process has been under review for some time, and the Scottish Executive has announced that there will be changes. As far as we are concerned, the key change is that the second stage of the process will be abolished so, essentially, the NHS will have one bite at sorting out a complaint, and if that does not do the trick the next stop is the ombudsman.When we set up our office just over two years ago, we thought carefully about what should characterise our processes. There are obviously some key issues. We had to start with the Scottish Public Services Ombudsman Act 2002, which is the key basis for our work. From the discussions in Parliament on the legislation, there were clear pointers about what MSPs wanted to characterise this new office. Among other things, it should be modern and open.We have taken the view that, as a matter of principle, we should screen complaints in, not out. In other words, we should be looking at reasons why we can deal with a complaint, not looking for reasons why we cannot. Wherever possible, rather than get into a long winded, expensive, formal investigation process, we want to sort out complaints informally because that is better for everybody concerned. We have tried to build flexibility into our processes so that we can do that, and have given quite a lot of discretion to our staff to bring about informal resolutions.We have created a process in which there are five possible steps through which a complaint can go. The vast majority of complaints will not go through all processes. The first step is the initial contact with our office. Often, that is as far as a complaint goes because, unfortunately, people misunderstand what the ombudsman can and cannot do. As Alice Brown said, I have had letters addressed to me as a deputy omnibus. People have a notion that we are something to do with the buses. If they phone up to complain that the number 36 is late, sadly we have to say that we cannot sort that out. We would point them to Lothian Buses plc, if it was the 36 in Edinburgh. A lot of first contacts with us get no further.Steps 2 and 3 look at complaints in more detail to determine whether they are matters for us and, if they are, whether we might be able to sort them out. Step 4 is what we refer to as formal investigation. The Scottish Public Services Ombudsman Act 2002 says a number of things about what we must do if we get into that process, including producing a report of the investigation, which has to be laid before the Parliament. In every case where we have gone to formal investigation, a report of the investigation has been laid before the Parliament.The fifth step is an option if we find hardship or injustice resulting from maladministration or service failure that has not been remedied. If we have investigated a complaint, found that something has gone wrong, and made a recommendation for it to be put right, and that recommendation has not been implemented, we can report that to Parliament. We have not yet had to do that, but it is an option if we ever find ourselves in a situation where our recommendations are not acted on.Using our internal processes, each case is looked at in considerable detail. If we are looking at a health case, one question that we ask ourselves is, are there clinical issues? If there are, we seek professional advice to consider them, because the ombudsman and her investigative staff are all lay people. We take an intelligent layperson's view of cases, but if there are clinical issues we take clinical advice.In each case, we will reach a decision as to whether there is anything that we can usefully do, whether we can bring about an informal resolution or take the matter to a formal investigation. Again, if we took a clinical issue to a formal investigation, we would take appropriate clinical advice. Having investigated the complaint, we would produce a draft report setting out the evidence that we had found and would share that report with both parties, so that they would have the chance to correct any mistakes that we might have made and point out whether they think that we have omitted anything. The final stage will be when a report is laid before the Parliament.It might be useful if I give you a few figures so that you get a better sense of the cases that we are dealing with. In the previous full year, we dealt with 307 complaints about the national health service, which represented a 17 per cent increase on the year before. In itself, that was a 16 per cent increase on the year before that. There seems to be a fairly steady upwards trend in complaints about the health service. A large proportion of those cases we could not take any further. Some of those that we could not deal with were not within our jurisdiction—for example, those concerning people complaining about private health care. Others were, in our terms, premature, which is to say that they had not been raised with the NHS. We simply told those people that they had to pursue their complaint with the NHS first, before we could consider it.Of the remainder, having considered the cases in detail, we decided that there was nothing further that we could achieve in the majority of cases. There were a variety of reasons for that. For example, we might take the view that the matter had already been fully investigated and responded to by the NHS or that there was simply nothing more that could be done for that person.We were able to resolve a small number of cases informally and, as time goes by, we would hope to be able to do that more often. A small number of cases proceeded to a formal investigation. In the first two years in which our office has existed, we have formally investigated 22 complaints about the NHS. We have given the committee summaries of each of those investigations. We have pulled together basic information on what those complaints were about and how they were spread across the country. I do not think that there is any huge significance in the geographical spread, which pretty much matches the spread of population.The issues that come up tend to follow a pattern. Delay—in getting treatments, appointments at clinics and so on—is an issue that worries people a lot. Sadly, we get a lot of complaints from people who have been struck off their doctor's list of patients, sometimes with little justification. That is something that we are concerned about. Quite a range of issues come up in the complaints, however.