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Y Pwyllgor Cydraddoldeb, Llywodraeth Leol a Chymunedau

Equality, Local Government and Communities Committee

13/12/2017

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Janet Finch-Saunders AM
Jenny Rathbone AM
John Griffiths AM Cadeirydd y Pwyllgor
Committee Chair
Sian Gwenllian AM

Y rhai eraill a oedd yn bresennol

Others in Attendance

Catrin Edwards Rheolwr Polisi ac Eiriolaeth, Hospice UK
Policy and Advocacy Manager, Hospice UK
David Francis Prif Arolygydd Cynorthwyol, Arolygiaeth Gofal a Gwasanaethau Cymdeithasol Cymru
Assistant Chief Inspector, Care and Social Services Inspectorate Wales
Dr Kate Chamberlain Prif Weithredwr, Arolygiaeth Gofal Iechyd Cymru
Chief Executive, Healthcare Inspectorate Wales
Gerry Evans Dirprwy Brif Weithredwr, Gofal Cymdeithasol Cymru
Deputy Chief Executive, Social Care Wales
Kevin Thomas Cyfarwyddwr Gwasanaethau Corfforaethol, Swyddfa Archwilio Cymru
Director of Corporate Services, Wales Audit Office
Martin Peters Pennaeth y Gyfraith a Moeseg, Swyddfa Archwilio Cymru
Head of Law and Ethics, Wales Audit Office
Sally Taber Cyfarwyddwr, Gwasanaeth Dyfarnu Cwynion y Sector Gofal Iechyd Annibynnol
Director, Independent Healthcare Sector Complaints Adjudication Service

Swyddogion Cynulliad Cenedlaethol Cymru a oedd yn bresennol

National Assembly for Wales Officials in Attendance

Chloe Davies Dirprwy Glerc
Deputy Clerk
Manon Huws Cynghorydd Cyfreithiol
Legal Adviser
Naomi Stocks Clerc
Clerk
Osian Bowyer Ymchwilydd
Researcher
Stephen Davies Cynghorydd Cyfreithiol
Legal Adviser

Cofnodir y trafodion yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir trawsgrifiad o’r cyfieithu ar y pryd. Lle y mae cyfranwyr wedi darparu cywiriadau i’w tystiolaeth, nodir y rheini yn y trawsgrifiad.

The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included. Where contributors have supplied corrections to their evidence, these are noted in the transcript.

Dechreuodd y cyfarfod am 09:15.

The meeting began at 09:15.

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datgan buddiannau
1. Introductions, apologies, substitutions and declarations of interest

Okay. May I welcome everyone to this meeting of the Equality, Local Government and Communities Committee? The first item on the agenda today is introductions, apologies, substitutions and declarations of interest. We've received apologies from Bethan Jenkins AM and Mick Antoniw AM, and also Gareth Bennett. Rhianon Passmore is not able to be with us for the beginning of the meeting, but she hopes to join us later. I'd very much like to welcome everybody to this last committee meeting of the year. 

2. Bil Ombwdsmon Gwasanaethau Cyhoeddus (Cymru): sesiwn dystiolaeth 6
2. Public Services Ombudsman (Wales) Bill: evidence session 6

Our second item today is our continued evidence taking regarding the Public Service Ombudsman (Wales) Bill, and I'm very pleased to welcome Catrin Edwards, policy and advocacy manager for Hospice UK, to committee this morning, and this will be our sixth evidence session to inform our scrutiny of the Bill. So, welcome, Catrin. 

Diolch.

Thank you.

Perhaps I might begin with the first question. And that is: could you expand on Hospice UK's views on the own-initiative investigations aspect of the proposed legislation, and whether or not you support those particular provisions?

Diolch. Well, first, I'll start off by saying that Hospice UK approaches this Bill, and the own-initiative investigation as part of that, from an equalities and social justice perspective. People who are in need of palliative care are, by definition, extremely vulnerable, and it's important that those people have the opportunity to have their complaints addressed by the ombudsman without actually having to take forward a complaint themselves. It may be that that person themselves, or indeed their carers, would feel that taking forward a complaint with the independent palliative care provider or the hospice could jeopardise the care that they receive. I know that the Northern Irish ombudsman made a similar point in relation to social care, and that carers can be reluctant to take forward a complaint because they're concerned that that would have an impact on the care that their loved one received. So, the power to undertake own-initiative investigations is a way that we feel certain injustices that an individual may face could be addressed by that ombudsman. 

We also know that, perhaps in the case of hospices in particular, they are a charity, and some people still do hold quite traditional views about charity, in terms of not seeing them so much as a public service, and they may be unwilling to make that complaint when a complaint would be a reasonable thing to do. But they are grateful for the service that they receive and don't always question things that may go wrong. So, we think the own-initiative investigation for independent palliative care providers is entirely appropriate. 

Okay. Thanks for that, Catrin. In terms of appropriate safeguards to ensure that that power to take own-initiative investigations isn't used in a way that might create problems and wouldn't be a proper use of the ombudsman's powers in that respect, do you believe that the proposed legislation has sufficient safeguards and protections?

Our opinion is that it does have the sufficient safeguards at the moment. Section 44 sets out that the ombudsman has to consult with appropriate people before taking an own-initiative investigation, and then section 45 is also looking at the criteria that would determine whether an own-initiative investigation would be appropriate. Certainly, it needs to be in the public interest, and we would approve of that. And, then, particularly in relation to safeguards, the criteria that are set out there can be amended by the Ministers, and they're subject to the affirmative procedure, and we agree with that procedure, because we want to see that vulnerable people are always going to be protected, and it's important that we have the ability to change those if we need to, but, actually, that those would be subject to scrutiny by the Assembly before any changes were made. 

09:20

Okay. One final thing on these aspects, Catrin: I know that Hospice UK had some concerns regarding potential duplication between the ombudsman and other inspectorates with regard to these own-investigation powers; is that a concern that you still have?

Some of our members did raise concerns that they would be unclear what the remit of the ombudsman would be in relation to the regulators. Hospices are regulated by Care and Social Services Inspectorate Wales and Healthcare Inspectorate Wales, as well as, of course, the Charity Commission, if they are registered charities. So, I think we would just need clarity around who is doing what and that we don’t have that duplication.

Okay, thanks for that. We’ll move on then to Siân Gwenllian.

Roeddwn i eisiau holi eich barn chi am y cwynion a p’un ai a ydych chi’n cytuno bod dileu’r angen i gyflwyno cwynion ysgrifenedig—hynny yw, agor y drws i gwynion llafar—yn beth da.

I wanted to seek your views with regard to complaints and whether you agree that removing the requirement to introduce your complaint in written form—that is, to open the door to oral complaints—is a good thing.

Ydy. Rydym ni o’r farn y dylid bod y gallu i gyflwyno cwynion ar lafar. Eto, rŷm ni’n dod at hwn o safbwynt cydraddoldebau. Mae yna bobl sydd yn derbyn gofal lliniarol sydd yn mynd i fod yn agored iawn i niwed ac maen nhw’n mynd i fod yn emosiynol iawn, wrth raid, ac mae’n gallu bod yn anodd rhoi pethau i lawr yn ysgrifenedig pan rŷch chi yn y sefyllfa yna, i’r person penodol ac i’r teulu hefyd.

Rŷm ni hefyd yn ymwybodol bod yna bobl sydd yn agored iawn i niwed y bydd angen gofal hosbis arnyn nhw hefyd. Rŷm ni’n sôn am bobl lle mae’r literacy levels yn isel iawn—efallai pobl sydd yn y secure estate neu bobl ddigartref. So, mae’n bwysig nad ydym yn anghofio’r bobl yna achos mae angen iddyn nhw allu mynd at yr ombwdsmon hefyd. Mae’r gallu i gyflwyno ar lafar yn beth sydd yn agor y broses yna iddyn nhw.

Yes. We are of the opinion that there should be the ability to present complaints orally. Again, we come to this from a perspective of equality. There are people who receive palliative care who are going to be very vulnerable and they're going to be very emotional, and it can be difficult to put things down in writing when you are in that situation, for that specific person and the family as well.

We're also aware that there are people who are very vulnerable and they will also need hospice care. We're talking about people where their literacy levels are very low—perhaps people who are in the secure estate or homeless people. So, it's important that we don't forget those people because they need to be able to go to the ombudsman as well. The ability to present a complaint orally is something that opens up that process for them.

Felly, yn y maes rŷch chi’n gweithio ynddo fo, yn arbennig felly, rŷch chi’n meddwl bod y cwynion ar lafar yn mynd i fod yn hwyluso’r broses i bobl.

So, in the area in which you work, particularly so, you think that oral complaints will facilitate the process for people.

Ydym, rŷm ni o’r farn y bydd y cwynion ar lafar yn hwyluso’r broses i’r bobl yna sy’n agored i niwed ac sydd yn emosiynol iawn ar y pryd.

Yes, we are of the opinion that oral complaints will facilitate the process for vulnerable people and for those people who are very emotional.

A ydych chi'n meddwl bod y canllawiau yn ddigon clir fel y maen nhw’n cael eu gosod ar hyn o bryd?

Do you think that the guidance is sufficiently clear as set out currently?

Ydyn, rwy’n meddwl, ond cwpwl o bethau a ddaeth i’m meddwl i wrth fynd trwy hwn: mae yna allu i'r ombwdsmon dderbyn cwyn gan rywun arall mewn achosion—ac mae’r Bil yn nodi hyn—mewn achosion lle mae’r person efallai wedi marw. So, mae’n rhaid meddwl efallai bod y person—y claf ei hun—wedi cyflwyno cwyn ar lafar ac wedyn mae’n bosib bod y person yna wedi marw, ac wedyn fod rhywun arall yn gorfod ymgymryd â’r gŵyn a mynd â’r gŵyn yna yn ei blaen. Felly, byddem eisiau gwybod mwy am sut y mae hynny’n mynd i weithio i sicrhau bod y verification yna’n digwydd yn ddigon da.

Yes, I think so, but a couple of things that came to mind when I was going through this: there is an ability for the ombudsman to receive a complaint from somebody else in cases—and the Bill notes this—in a case where the person has died. So, you have to think that perhaps a person—a patient—has presented a complaint orally and then possibly that person has died, and then somebody else would have to undertake that process and take the complaint forward. So, we would want to know more about how that would work to ensure that that verification happens.

Ac wedyn o ran eiriolaeth, a ydych yn credu bod angen darparu eiriolaeth i unigolion sydd yn gwneud cwynion llafar?

And following that in terms of advocacy services, do you believe that there is a need to provide advocacy for individuals making an oral complaint?

Mae Hospice UK o’r farn bod popeth sy’n agor y broses, sydd yn ei gwneud yn fwy tryloyw ac yn fwy hygyrch i bobl sydd angen gwneud cwynion, rŷm ni o’r farn bod unrhyw beth sy’n gwella’r system yna yn beth da. Nid wyf yn gwybod yn union o ran os oes angen eiriolaeth fel rhan o’r Bil. Rwy’n gwybod nad yw’r complaints-handling procedure yna’n berthnasol i’r hosbisau, felly mae’n bosib na fydd digon o’r guidance yna i sicrhau bod person yn cael mynediad at wasanaethau'r ombwdsmon.

Rŷm ni hefyd yn gorfod ystyried bod pobl sydd yn derbyn gofal lliniarol, fod yna lot o bobl hŷn efallai ac maen nhw’n bobl sydd yn agored i niwed. Fe fydd yna bobl efallai sydd â dementia sydd heb capasiti. Yn y rhan fwyaf o achosion, efallai y bydd y teulu neu ofalwyr yn mynd â’r gŵyn yn ei blaen, ond mae yna bobl heb deulu na gofalwyr ac wedyn, mae’n bosib y bydd angen eiriolwyr arnyn nhw i fynd â chwyn yn ei blaen.

Hospice UK is of the view that everything that opens up the process and makes it more transparent and more accessible for people who want to make complaints, we are of the opinion that anything that improves that system is a good thing. I don't know exactly if there is a need for advocacy as part of the Bill. I know that the complaints-handling procedure is not relevant to hospices, so it's possible that there won't be sufficient guidance there to ensure that a person has access to the ombudsman's services.

We also have to consider that people who are receiving palliative care, there are many older people and vulnerable people. There will be people who may have dementia who don't have the capacity. In the majority of cases, perhaps the family or carers will take the complaint forward, but there are people who don't have family or carers, and then it's possible that advocates will be required for them to take a complaint forward.

09:25

Siân, I'm just going to bring Jenny in on this point. 

I've finished. I'm just going to sort out the microphone—.

Diolch.

Thank you.

I just wanted to pursue the issues that could arise with oral complaints in terms of how we are going to record what is being complained about, to protect the carers or any other professionals involved. I wonder if you could just comment on how we have an accurate record of what is being complained about, to prevent people having inaccurate recall or thinking that they mentioned something that they didn't. How do you think this should be—? Do you think the Bill is adequately clear on how this is going to be handled?

I'm not sure whether the Bill itself does go into that level of detail. As I noted earlier, there is the issue in the case of hospices that, potentially, a deceased person has made an oral complaint and then it would need to be verified by carers. Of course, the memory then of the carer and the person's experience may not actually be the same, so that would be an issue. I think in this instance it would be sensible to look at how oral complaints are dealt with in other authorities and to take forward best practice there. I don't feel qualified to be able to say what I think the best way of taking that forward would be, but I am aware that there would be some complications in the hospice sector. 

Okay. So, in your experience, for example, the perception of the person being cared for and the relatives can be quite different.

Yes. We know that certainly is the case; that carers can often—certainly in a case where a deceased person has ended up being transferred to hospital in the last phase of life, a carer's perspective is often more positive about that than perhaps the person themselves were. And their perspective can change over time, so it would also depend on the timescale that we're working with. Naturally, you'd need to be considerate around the time, because it would be an extremely emotional time if the carer is bereaved. So, time frame does come into this. 

Okay. So, you recognise that this is a really complex area.

Very complex. And I'm afraid I don't have the solution. 

Okay. Well, we'll have to give some further thought to that because I think it is something—

Certainly. We'd be happy to think further through that with you. 

Okay. All right. I just wanted to explore with you the arrangements in the Bill to investigate private healthcare services. Obviously, people who are accessing hospice services—. Can you give us a figure on the proportion of people who will have been referred by the NHS or who are receiving NHS care as well as receiving palliative care from you?

I can't give an exact figure because the nature of the pathway is so integrated. The vast majority of people who receive palliative care through a hospice will have come through the NHS. It may be, as part of that journey, that they have received private healthcare as well, but the vast majority will have come through referral either from a hospital consultant or perhaps through their GP. So, the vast majority of those referrals will certainly come through the NHS. That's why we have raised the issue here of the two separate regimes that are set out in the Bill.

We know that private healthcare—the reason that was included in Part 3 of the Bill is to ensure that a whole complaint can be investigated thoroughly by the ombudsman. So, we're raising the question here: can a whole complaint be investigated thoroughly by the ombudsman in terms of an independent palliative care provider, if that complaint is initiated through Part 5—the one particular regime? But, actually, that complaint will include a whole host of statutory and non-statutory providers. So, a person receiving hospital palliative care is likely to have contact with their GP, with district nurses, will almost certainly have come through the NHS to get a terminal diagnosis. They may be in a care home, so social care would come into it as well. We want to make sure that if somebody is presenting a complaint that that complaint can be looked at as a whole complaint in its entirety, so the person gets the right result at the end of it. 

Okay. So, the Member in charge of the Bill has told us that it would make for very complex and technical drafting of the legislation, which we'll have to pursue further. But I think it's useful to have noted that you want to see a holistic attitude towards the journey that the patient has experienced. I think probably one of the concerns that may arise is around the amount of public resources that go into unpicking private healthcare without any contribution from the provider. So, do you think it would be appropriate in any way for organisations who are not part of the public sector to make some contribution towards the role of the public service ombudsman?

09:30

Well, I think we need to be clear that, in terms of the remit of this Bill as it currently stands, Part 5 specifies that only independent palliative care providers who have received funding from statutory bodies in the last three years would be subject to this Act—if it becomes an Act. I think, according to the explanatory memorandum, there are so few cases that have arisen since the 2014 changes, which included palliative care and social care—I think it counted 29 cases across social care and palliative care—that I would be reluctant to say that we need to be recovering costs from people, because I don't think that there is the bulk of work there. Also, the vast majority of funding that independent palliative care providers used to deliver their care is fundraised, so that probably would be an issue. 

What I would say, in terms of merging those two regimes, is that we're clear that whilst one single mainstream regime should provide clarity and ease of access in terms of interpretation, we have heard that it would involve very complex drafting of legislation. Hospice UK's position is that we don't mind if the two regimes are separately maintained, as long as a person who is receiving care from an independent palliative care provider is able to present a complaint that may or may not draw on NHS social care or statutory funded provision, and as long as that investigation can be investigated fully, and, actually, that the burden of bureaucracy lies with the ombudsman's office and not with the person who is presenting that complaint. As long as they have equal access to recourse from the ombudsman, that they have the same rights, that the complaint can be pursued fully in the same way that someone receiving palliative care from the NHS would be able to present a complaint, then, actually, that would be okay to maintain those two separate regimes. We take an equalities approach to this, so it's about the person's rights to access the service of the ombudsman, rather than what the Bill itself looks like. 

Okay. The public service ombudsman has told us in evidence that, practically, it would make no difference to the citizen. So, as long as that is the case, you're content with the—

We are. We're in favour of seeing transparency and openness, and if a streamlined Bill could be presented that was easy to interpret, then I think that's for the benefit of everyone. And it could be seen as a missed opportunity not to streamline the Bill in this instance. But we're not the people drafting the legislation and we don't know all the clauses that have led to the complexity and the decision to keep two separate regimes. 

Okay. Fine, thank you. 

Moving on to the level of guidance for both citizens and for hospices on how the complaints process needs to be signposted, could you just clarify what you think needs to be clarified over and above the current situation, where, clearly, it is the job of the provider to do the local resolution where possible? And the ombudsman should only be taking it on if local resolution has not been achieved.

09:35

Yes, and the Bill sets out that, when a complaint is referred to the ombudsman, it should have been presented to the provider in the first instance, and we would agree with that.

In terms of the guidance that we were seeking, the further clarity, that was particularly around that integrated pathway, where a complaint does involve the NHS or social care as well as provision by the independent palliative care provider.

Hospices aren't subject to the complaints-handling procedure, as set out in this Bill, and we don't feel that it's necessary that they should be. We don't feel that statutory guidance is necessary in that instance. What could be helpful is a clear communications programme in rolling out this Act, if it becomes an Act, by the ombudsman's office, to ensure that hospices and everybody else who is subject to the remit of the Bill or Act understands what the processes are. It may be that a model complaints-handling procedure would be appropriate, but, again, there are so few hospices in Wales and each one works very differently, so I'm not sure what that model would look like and whether it would suit the purposes.

All right. I think that helps to clarify things, thank you.

Okay, thank you. Over to Janet Finch-Saunders, then, and some issues around the definition of palliative care.

Yes. Could you expand on your view regarding the definition of palliative care?

Yes. So, we've raised an issue in our written evidence. It's more a cautionary issue, a note of concern, perhaps. We want to make sure that everybody who is accessing care from a hospice has recourse to the ombudsman. Now, the issue that we have here is the definition of palliative care as it's set out in the Bill. So, it says: 

'"Palliative care service" means a service the main purpose of which is to provide palliative care',

which doesn't take us very far in understanding what that would be.

The tricky thing around this is section 43(2), which links a palliative care service to funding. We have absolutely no problem with the idea of the three years' funding that makes a hospice subject to the Bill, but the issue then is around—. Palliative care services that are funded tend to be very limited in terms of the understanding of what that palliative care is. So, it may be around clinical provision and physical provision, so management of symptoms and pain relief. The hospice movement takes a very broad definition of palliative care; it's a very holistic definition of palliative care. So, it's looking not only at that clinical and physical need but spiritual, psychological, emotional and social. So, there will be people accessing hospice services who are perhaps receiving specialist counselling or complementary therapies, and we're just a little bit concerned and would like a little bit more clarity on whether those people are going to be included within the remit of this Bill, because the funding from statutory sources probably wouldn't cover those things, and yet that is a service that palliative care providers will provide. We want to make sure that everyone who uses independent palliative care provider services can take their concern to the ombudsman, should they need to.

The explanatory memorandum does go a little bit further, and we really welcome in that explanatory memorandum references to World Health Organization and NICE guidelines that do refer to that more holistic definition of palliative care, but the way it's phrased is very much that the ombudsman should, maybe, consider these things, not that they definitely should, and the initial definition really focuses on pain relief and that physical provision of palliative care, not the more holistic, broader definition. So, we want to make sure that we're clear about who's been included, and Hospice UK's position on this is certainly around equalities again. We want everyone who has care from hospices to have the ability to take a concern or complaint to the ombudsman, should they need to.

09:40

If I could just follow up on that for a minute then, Janet. If it weren't for section 43(2), Catrin, you'd be more content, would you, because you would then take it that the World Health Organization's broad definition would apply and the NICE guidelines would come into play?

I think it's a little more tricky than that, unfortunately. Section 43(2) really is an important section, because it does set out around the funding. So, the provision of funding for three years—it says if a hospice is receiving statutory funding for three years or more, it's then subject to the Bill. We need to have those guidelines, because that is precisely what makes the hospice service a public service, because it's receiving statutory funding to deliver that care.

So, I don't think we can get away with it completely, but it does just provide that trickiness, that awkwardness for us, that raises a concern that perhaps some people are going to be excluded from this Bill. I'd like to think that we would take a very open and broad understanding or interpretation of that and that it's not just limited to the statutory funded services, but it's possible that some people could fall foul of that.

And, in section 43(2), by making the link with funding and funded services, it perhaps might suggest that there's a narrower definition of palliative care than would otherwise be the case.

Precisely that.

There are obviously the issues about whether some people could be excluded from access to the ombudsman's services due to the narrow definition. Also, could you expand on the issue highlighted in your written evidence relating to the potential solution for the definition of palliative care—to move away from defining the specific type of care to defining the type of provider?

Absolutely. This was just a potential solution that we thought of in trying to get around this issue. We were thinking that, instead of saying, 'The provider must be a provider of palliative care', that, actually, you move away from the service to the type of provider that's within the remit of the Bill. So, we said, perhaps a non-statutory provider of health and care services who is then funded for three years or more by a statutory body. So, it still then links it into being funded to provide that public service, which makes it appropriate to be included within the public services ombudsman's remit, but it doesn't then limit the type of care that that provider is subject to in terms of the ombudsman's remit. So, we thought it was a little wider, and it might prove helpful in tweaking things if that's needed.

Okay. Are there any other questions for Hospice UK? Jenny.

I'm still just pressing about these oral complaints. I just wondered if we can just stick with the example you gave of somebody who has transferred back to hospital at the very end of their life, and I presume that could be an occurrence that causes dispute. I just wondered what the quality of your recording is in the these circumstances where there's a dispute as to whether somebody—. Whose view is paramount? Is it the individuals themselves or is it the carers or is it the clinicians?

It's unlikely that the patient involved would be able to express a view at that point—

—so the carer's view would be paramount. I can certainly look back at the research that we have and try and provide a bit more information for the committee, if that would be helpful. 

I think, in relation to the Bill, it's how good the record keeping is, because, obviously, the ombudsman's not going to come to this until much later after the event, and therefore the quality of the recording of who said what to whom and how the outcome was arrived at is clearly crucial. So, I think understanding the level of recording that you have on a decision like that, which could be open to disagreement—.

Yes. I must admit, I don't know the answer to that at this point. I know that the level of complaints is so small, I'm not sure whether we do have information on that. But it is absolutely something that I can go back and take a look at, to see whether that is something that's recorded, and share that with you.

09:45

Okay. Because I think in the circumstances, in this specific instance, what you're talking about is a dispute between the carers and the clinicians, and therefore, as you say, the patient is very unlikely to be able to voice a preference at this point. So, it would be useful to know who records—. Does the hospice record that X, Y and Z were transferred following doctors' advice, or following requests from—? You know, so that at least there is a written record, so that when people come to see it, to look at it some months down the line, we know what was recorded at that time.

As I understand it, most hospices will have different recording systems, but I would be very surprised if the information saying that a patient had been transferred wasn't recorded—

Well, it certainly would say that a patient's been transferred, I'm sure of that—

But the reason why. Yes. I will take a look into that.

If you could provide a note to the committee, Catrin, that would be very welcome. Thanks very much for coming in to give evidence this morning. You will be sent a transcript of your evidence to check for factual accuracy in the usual way.

Diolch yn fawr iawn.

3. Bil Ombwdsmon Gwasanaethau Cyhoeddus (Cymru): sesiwn dystiolaeth 7
3. Public Services Ombudsman (Wales) Bill: evidence session 7

Welcome, everyone, to committee this morning. This is our seventh evidence session with regard to our evidence taking on the Public Services Ombudsman (Wales) Bill. I wonder if you could introduce yourselves for the committee's information, please, perhaps starting with Kate.

My name's Kate Chamberlain. I'm the chief executive of Healthcare Inspectorate Wales.

I'm Gerry Evans, deputy chief executive of Social Care Wales.

David Francis. I'm the assistant chief inspector for the Care and Social Services Inspectorate Wales.

I'm Sally Taber and I'm a director of the Independent Sector Complaints Adjudication Service, which covers the four countries for private healthcare.

Okay. Thank you all very much for coming along to give evidence to the committee this morning. We will begin with questions from Siân Gwenllian.

Rydw i'n mynd i ddechrau efo'r ymchwiliadau ar ei liwt ei hun, a chwestiwn i ddechrau, efallai, i Dr Kate Chamberlain. Yn eich papur tystiolaeth rydych chi'n sôn ei bod hi'n bwysig—

I'm going to begin with own-initiative investigations, and I'll begin with a question, perhaps, for Dr Kate Chamberlain. In your evidence paper—

I think Kate's experiencing some difficultly with the translation equipment. It's not working, Kate, is it?

No, I can't hear anything through that at all.

Iawn? A ydych chi'n fy nghlywed i rŵan? Diolch. Gwnaf ddechrau eto. Roeddwn i'n sôn am ddarpariaeth yr ombwdsmon i ymgymryd ag ymchwiliadau yn ôl ei gymhelliant ei hun, sydd yn rhan bwysig o'r Bil. Roeddwn i eisiau cychwyn efo chi, Kate, achos rydych chi'n dweud yn eich tystiolaeth eich bod chi'n poeni efallai y byddai yna orgyffwrdd a dyblygu oherwydd bod gennych chi'r gallu i wneud y math yma o ymchwiliadau. A fedrwch chi ymhelaethu ar hynny?

Can you hear me now? I'll start again, then. I was talking about the provision for the ombudsman to undertake own-initiative investigations, which is an important part of the Bill, and I wanted to begin with you, Kate, because you state in your evidence that you're concerned that there might be some overlap, and both of you are doing the same things in terms of these investigations. So, could you expand on your concerns?

09:50

We work very closely with the ombudsman at the moment. He's part of the summit process where we get together twice a year to talk about issues and concerns and emerging intelligence across the health service. We also meet regularly on a bilateral basis, and we do think about how we can share intelligence and what's going on on a systemic basis. 

Obviously, the legislation talks about giving him the power, where he's spotting something that he thinks might be systemic, to go in and investigate it himself. It's also possible that we might ourselves be spotting something that we think is systemic. For example, there might be something that's going on at the moment, from conversations that I've had with him, maybe, around delayed transfers of care and the impact on patients in terms of how they get discharged from hospital. We're doing a thematic review of hospital discharge at the moment, which is due to report shortly. I think we can manage those potential overlaps and duplication if we work very closely together and we think about how we scope the respective pieces of work so that we're not operating in the same area at the same time, because, clearly, that's a burden on the services. It's difficult for the services themselves; they may not know in which direction they're facing, if you like, and whose questions it is they're trying to answer. So, I think it's manageable. I think there could be instances, however, where we might be at risk of operating in the same space at the same time if we don't work together very closely.   

I think one of the things that I'm not clear about how it would work from the legislation at the moment is that the legislation explicitly talks about others such as the commissioners and the Auditor General for Wales to be able to work jointly with the ombudsman to address matters of common concern. That isn't something that is specifically in the legislation at the moment with the regulators, although there is something about us being consulted. We do have experience of working jointly with others, which has gone very well and been very effective. It's something that I would like. However, I can also see that there could be some complexities to it, because, of course, the public services ombudsman can also investigate complaints about us, and were a complaint to arise about something we were doing in an area in which he himself wanted to investigate, again, that could introduce some confusion into the system. 

So, I'm not saying it can't be managed, but I think it potentially creates quite a crowded and complex landscape that will have to be navigated very carefully by all of the parties that are involved in it.    

And do you think we need more safeguards than what are in the Bill already? 

I think my concern would be that the Bill should not constrain us in being able to work together appropriately. If we think of it as enabling legislation, it enables the ombudsman to work jointly with the auditor general. I'd like to think it doesn't prevent him from doing the same with us if that is the way that he wanted to go, if we can find a way of managing it appropriately. So, I'm not necessarily convinced that it needs to be placed in legislation that he must or that there's more duties to do that; I would just want to be clear that the legislation should not prevent us coming up with a sensible and pragmatic way of making sure that we can work together in the best interests of patients and service users.  

Mi wna i ofyn yr un cwestiwn i chi, David, achos rydych chi yn dweud rhywbeth tebyg yn eich tystiolaeth chi. Rydych yn sôn am yr angen i beidio â gorgyffwrdd:

I'll ask you the same question, David, if I may, because you state something similar in your evidence. You talk about the need for there not to be overlap:

'For example anonymous complaints about care services.'

Is there a danger there that there could be overlapping? 

I agree with Kate. I think that we are very sensible about this in the sense of it being an enabling relationship; we do have discussion. And we have been subject to complaints investigated by or referred to the ombudsman, so there is a tension there to be managed, and there needs to be a route for the public to be able to come through. 

I think there are two parts of the legislation. It talks about the ability to take forward a complaint for people who cannot make a complaint, and it talks about wider systemic failings. I've got a feeling that some of those wider systemic failings are actually quite complex and ought to be dealt with normally by the regulato, rather than the ombudsman. And I've been running in the back of my mind that if the ombudsman had been around in 2005-06, how would they have responded to Operation Jasmine? What role would they have played in terms of all those people who had complaints about the care in the care homes, and how they would have then generated a major investigation into the systemic failings that took place? And it became a massive inquiry that obviously led to 'In Search of Accountability'. 

So, I'm a bit concerned about, first, undermining the role of the regulators, who are properly situated to take on these things, and secondly, the ombudsman taking on pieces of work that become so extensive—because some of these things in health and social care have many, many roots; it isn't just about a set of care homes, it's about how they're being purchased, it's about the economics, about how they're being funded. And you could find yourself treading into very large water. I looked up at what the definition of an ombudsman is internationally, and it is about receiving complaints about services. It isn't actually about regulating. I'm just trying to get back to a basic understanding about what the role of the ombudsman is, and I think there is legitimate opportunity.

I also noticed in the Bill that there was discussion about working together to undertake joint investigations and undertake joint reports. I tend to find that when we do that with other regulators, it can be very effective, but it can also be quite difficult to negotiate. So, I think that the way that we have, to date, worked with the ombudsman has been on the basis of co-operation, and where we've had situations, we've sat down and we've co-ordinated our work, rather than worked completely jointly, and that's been very, very effective. So, I think having an effective and respectful relationship with the ombudsman is really important. We don't want to get too close to the ombudsman and be part of the family. We think that they do have a distinct role in terms of representing the public. 

09:55

So, really, what you're saying is that you've got some apprehensions about the whole principle of the investigations. 

My reading of it is that I can understand if the ombudsman has a situation where they have half a dozen, maybe 10 concerns, that all appear to be stemming from something, there is a role to say 'Hang on, on behalf of both the people who have complained, but also, other members of the public who could suffer poor care, and poor services as a result, I am going to look at this.' I can understand that, but I think that there's a point at which there are legitimate complaints coming in on which the ombudsman takes a view, versus going fishing because there's general concern about, for example, as Kate mentioned, delayed discharges in care. So, there's a fine line. And my experience of the ombudsman to date is that they've operated very sensibly and been very careful about what it is. And I think as enabling legislation, giving people the powers to do that is good. I'm not necessarily sure it's necessary to put within the legislation barriers, but I think I'm just sounding a note of caution that I think that it could be a problem. 

Ocê. Dwi am ddod â Gerry i mewn yn fan hyn rŵan. A fedrwch chi ymhelaethu ychydig ar rai o'r problemau ymarferol fyddwch chi'n eu gweld efo'r ymchwiliadau unigol yma?

Okay. I want to bring Gerry in here now. Can you expand a little on some of the practical difficulties that you envisage with these own-initiative investigations?

Mi wnaf ymateb yn Saesneg, plîs. 

I'll respond in English, please.

I'd echo quite a number of the points that both Kate and David have made. It's potentially a crowded landscape, but that doesn't mean that it shouldn't be welcomed, particularly in terms of some of the systemic issues. We have a particular interest, clearly, in the social care professions. We're moving into wider regulation of those professions. So, again, tackling some of those systemic issues in a co-ordinated way across delivery in the sector, and the regulation of the sector, is going to be critical, I would say. From our point of view, clearly, when some of those issues move into matters of professional judgment of practitioners, then I think there we need the clarity between what the ombudsman's office may be doing and ourselves in terms of the regulation of individuals. But, certainly, looking at systemic issues—because we come across issues in our work with individual practitioners and complaints against individual practitioners where the issues are much more on a systemic level or organisational level. And we currently work very closely with David and colleagues, and refer matters to CSSIW. In future, we will clearly need to bring the ombudsman into that process as well. To date, that hasn't happened to any large degree. I think, as the ombudsman himself said, social care hasn't been an area where he's received many complaints in the past. I would argue that's potentially going to grow significantly. So, again, I think it is issues of collaboration, close working, clarity around information sharing, and, as Kate says, similarly, our decisions are subject to the ombudsman's investigation; does that compromise in any way some of the issues being raised by the ombudsman when he's looking at our practice? So, I welcome the ability to initiate those investigations, but it does need very careful co-ordination, not least of which, I think, for the complainants, so that they are clear about what routes are available, but also I think, from our role as a professional regulator, those who are the subject of the investigations as well. If there are multiple investigations taking place, it can take its toll on a workforce that's already under pressure.

10:00

Rydych chi'n sôn yn eich tystiolaeth mai enghraifft o lle mae'r dryswch yma'n gallu codi ydy pan fo gan yr ombwdsmon y gallu i barhau efo ymchwiliad er nad ydy'r achwynydd yn dymuno i'w gŵyn gael ei wneud. Mae honno'n enghraifft dda, a ydy o, o lle fyddai dryswch yn gallu digwydd?

You mention in your evidence that an example of where this confusion can arise is when the ombudsman has the ability to continue with an investigation despite the complainant not wishing for their complaint to be duly made. Is that a good example of where that confusion can take place?

Indeed, yes. We have the powers to pursue an investigation even where the complainant, the individual, wants to remain anonymous or doesn't want to take any further action. Our experience is that that's very difficult, particularly where the individual wishes to remain anonymous, because there you lose a whole set of evidence. The impact on the ombudsman's investigations, I guess, particularly around systemic issues, potentially is more easily addressed, but there are complexities. Clearly, we have to produce evidence that is presented to panels. Therefore, we have to guarantee the accuracy of that information. So, again, mediating that on behalf of others can introduce an element of third-party information being passed on. So, there are practical difficulties. They're not ones that can't be overcome, but I think, as we also say, there are potentially resource implications for some of those, because it needs a lot of very careful work.

So, certainly, I think there are areas where, clearly, the ombudsman and ourselves would see that we need to take matters forward, because we believe that there are issues of public interest that need to be looked at, but the practicalities mean it has to be done in a somewhat slightly different way. But, again, just to reiterate, that doesn't mean it shouldn't happen.

Okay. Sally, I'll bring you in here. What's your experience or what's your take on what you've heard this morning?

Well, the independent sector tends to operate as four countries, because the majority of them belong to groups of hospitals—there are some individual hospitals in Wales. We have been involved in investigations concerning, particularly, cosmetic surgery, and we're doing a piece of work at the moment for the Royal College of Surgeons. We're doing it on a four-country basis, looking at whether the standards that they've introduced have helped with the outcomes of complaints, particularly around consent, whether the surgeon is appropriately qualified, and whether they've got the right indemnity cover. That's absolutely key in working in the independent sector. We've got a good relationship with the ombudsman in England now, who's a new one, but I met Mr Bennett when I gave evidence last time. So, I guess our investigations will be quite different. 

What do you think about the Bill's provision that he would be allowed to do individual investigations if he saw systemic problems, for example, in your sector?

We don't feel unhappy about that. What we'd want to make sure is that there is no overlap of organisations and there is, as Kate has said, a respectful working relationship. Because, frankly, if there are too many people doing it then it can cause additional work. So, we don't have any problems with it but would want the terms of reference very clear, and who else—which other organisation—is working with the ombudsman, in particular HIW, I guess, in our case. 

10:05

Okay. Just before we move on—David, I wonder whether you would suggest any additional safeguards to ensure that the ombudsman uses these powers of own investigation in a reasonable and proper manner as it were. Are you content with the safeguards that are proposed in the legislation or would you like to see anything additional? 

I've given that a lot of thought and, for me, it goes back to that consideration about what is the purpose of the ombudsman and what role do they perform within the wider system. For me, it is about representing the interests of people and clarifying that it's on behalf of people who receive services and are likely to suffer an injustice, or whatever. I'm just concerned about not straying into that broader area of broad systems failure. I think it's making sure that there's clarity about what the purpose of the ombudsman is. I can't think of a turn of phrase or a way of phrasing that, but I would like to anchor that in that way. 

Okay. Okay, thank you for that. We'll move on then to Jenny Rathbone. 

Good morning. I want to look at the ways in which the Bill removes the requirement to only accept written complaints. I don't want to detain us on electronic communication, because I think that's pretty much the same as written complaints in, I think, all our minds. I think the issues that arise are over oral complaints. Now, the Independent Healthcare Sector Complaints Adjudication Service, you say oral complaints would be accepted under the ISCAS code—is that correct?

Yes. They would. Obviously, we would reconfirm them in writing ourselves, but we—

So—sorry—you receive the complaint and then you'd write to them, saying, 'We've'—

Well, we would make sure that it's recorded, because oral complaints can be dangerous if you don't get exactly what the patient requires. We do have experience of it because ISCAS covers private mental health, and, for instance, Priory don't bar their patients from ringing outside, so they will frequently ring ISCAS and they're certainly not—they're ringing orally to complain. So, we have got a recording mechanism and we obviously then would type that up and would liaise with the organisation concerned. 

So, you wouldn't relay that back to the complainant and say, 'This is what we've grasped you want to complain about'.

Well, usually when they ring us they haven't gone through any stages; they've just decided that they're unhappy with how they're being treated and they're unhappy with being moved from an open ward to a secure ward or whatever. That's our frequent experience, but we do get what we would call, in the past, 'vexatious', but some unreasonable behaviour in patients that experience an outcome that they didn't expect—an outcome of surgery, or whatever—and I think it's quite different from NHS complaints in that, when a patient is paying for what they want, if the outcome isn't what they expect, then they do frequently ring ISCAS. We will always record it, but obviously wouldn't use it unless we've got permission from the patient concerned.

You get people complaining about the outcome of NHS surgery too. There are two issues: one is competence and the other is clarity of communication about what was going to happen. 

Yes. The other thing that we do with our complaints service is we clarify the heads of complaints before we take the complaint on. Otherwise, the patient could say at the end, or the complainant could say at the end, 'Well, I wanted to complain about that, not—.' So, we actually make them sign, and frequently patients will say, 'I can't do that; I just need to tell you on the phone.' So, we will then record it and then send it back to them and send it to the hospital, because they've given us permission. So, yes, we do use the facility of letting them talk to us.

10:10

Yes, we record it.

Now, HIW, you're rather specific. You say in your evidence that it's important the ombudsman captures, for the record,

'the information in a written format',

and that that conforms—. And confirm with the complainant that this is an accurate record of what they wanted to complain about. On that basis, you seem to be saying that the Bill needs to be amended, because it is, at the moment, rather vague on this issue.

The issue, for me—. If I can go through the detailed point that I put about the register of oral complaints it mentions in the Bill, we have to think about what the potential outcomes might be of the ombudsman taking an oral complaint and describing it, in effect, for himself. I should start by saying I absolutely support it. I think he should take oral complaints, but I think we need to be able to track what then happens to those complaints, because there is always a risk that the person taking that complaint might not adequately understand what the complainant is trying to put across to them. There is also a risk that, in taking down that complaint, they might fill in the gaps or be able to articulate very clearly what the complainant isn't necessarily saying, because of their experience of taking complaints.

So, yes, I think they should take oral complaints, I think they should make sure that they write down and they capture what it is they are investigating on behalf of the complainant. I know that the ombudsman says at the moment that he has a requirement to send that out and get it signed and get it sent back, and part of the problem is that he doesn't get many of those back, therefore it's difficult for him to proceed. I'm not saying, necessarily, he has to do that, but I think he should, as a minimum, be writing down and writing back to the complainant to say, 'This is what I understand your complaint to be; this is what will happen next; this is where you can get advocacy support if you wish to be supported through the process.' I think it's important that the oral nature of it does not reduce in any way the ability of the complainant to be able to continue to influence and interject if the ombudsmen themselves are not quite looking into the thing that the complainant intended—and that's what I've tried to get across there. I think there is something about being able to confirm back to the complainant in writing what is being said, even if you are not formally requiring them, therefore, to sign something, send it back and say, 'Yes, go.'

Yes. What normally happens in my office is that you ring them back and say, 'So, this is what we're going to do,' and then you confirm that in writing. I suppose the way in which you wanted 8(9) clarified, to be,

'must maintain a register of all complaints, the manner in which they are received and the outcome',

is—. We don't want to make this an overburdensome regime. I can see you can have a—you know, if it's just literally a summary, but, on the other hand, we also have to remind ourselves that the ombudsman doesn't normally take complaints unless they've already been investigated locally and a local resolution has not been achieved. That, it seems to me, is an important aspect of this. We can't have the ombudsman taking on a role of general complaints manager for all our public bodies.

No, but I think the point that I was raising there is there is always danger if you say in legislation, 'There must be a register of X,' that that becomes a stand-alone register. And, actually, I think the ombudsman, and I'm sure he does at the moment because of the way he publishes the information in his casebook—he actually needs to maintain the register of all the complaints that come to him, not just the oral ones, and probably say how they were received and then be able to evaluate, as I say, which ones were taken forward, which ones were not taken forward and how they were handled, so that he can make sure that he's dealing with complainants equitably, and not building perverse outcomes into the system depending on how that complaint is received. I think my concern wasn't that 8(9) was wrong, but it's just that it was so specific it might almost be taken to imply that you didn't need to record other stuff. 

10:15

Okay. Thank you for that, but I think it's really whether or not we need to amend the Bill in any way to ensure that the oral complaint is captured accurately, contemporaneously, because, obviously, several months later, it's difficult for people to completely accurately record what's been said. So, perhaps it doesn't need to be on the face of the Bill, but it would need to be in the explanatory memorandum. Would other organisations like to—

Yes, most definitely. I think the accuracy of what's been said is so important, because patients will come back and say, 'But I didn't say that.' We have it all the time. And I think, as Kate has said, the ombudsman's got to make sure that he's not taking the first complaint. If he is taking the first complaint, then it should be signposted back to the organisation, otherwise you're going to open the door to the ombudsman being the first port of call for a complaint, and that isn't what is required. Organisations have got to handle them themselves. We frequently get complainants from organisations coming to us for the first time, and we obviously have to signpost them back and make sure we tell the organisation. Otherwise, if you don't tell the organisation, then if the patient's given you that permission, then you might have lost them for a few months, and then what they've said is lost. So, I think there's got to be a trail put in place. And, obviously, this has all got to have consent because, frequently, with private mental health, they will tell you, 'I don't want you to say anything.' So, that needs to be explicit on how that is recorded, because, at times, it is dangerous for us not to tell the organisation that we've had this person on the phone in the middle of the night or whatever. 

Could I just look at the situation in social care? Obviously, you will have vulnerable individuals who have no relatives visiting frequently, and the carers are the only people they see because they're not able to leave the house. So, I can perfectly understand the individual who can't even get across the room to get a pen and piece of paper, never mind get somebody else to post it. To be able to pick up the telephone and complain is obviously quite a powerful tool, but how then do we ensure that—? Could you just describe to us what safeguards we need in the Bill to ensure that local resolution is carried out in most cases and that it is done in a way in which the complainant wants it to be carried forward?

I think one of the things to point out is that both in the Social Services and Well-being (Wales) Act 2014 and the Regulation and Inspection of Social Care (Wales) Act 2016 a lot of emphasis is placed on advocacy. And when I read this here, it's clear that the ombudsman can choose to recognise a representative who they see as fit. I think it is worth actually promoting advocacy in this Bill because that is the mechanism by which Welsh Government is actually strengthening the opportunities for those people. And, certainly, within care agencies, their expectation is that they promote access to advocacy organisations, so that if people require advocacy, then that can take place. 

I think what's very clear is that people who make complaints about social care are very vulnerable because they're anxious about losing the service, they're very dependent on the service. It's often a very emotional, relationship-based service, and we also often, quite commonly, end up with family members who have very different views about the quality of the care being provided; some of whom are very happy and some of whom, for whatever reason—maybe they've fallen out with the manager or a particular care worker—are causing some difficulty. There's a danger in this that the person who's actually receiving the care and support is lost sight of when other people are arguing. I think this notion about who is legitimate and for whom a complaint can be made is important. So, I think this notion of advocacy could be strengthened in terms of the reference in the Bill. 

10:20

Do you agree with HIW that, where possible, the information needs to be written down—that's been captured orally?

Yes, absolutely. Another thing about dementia and people with learning disabilities, the way that people express dissatisfaction is often through behaviour and withdrawal or acting out. This concept about, 'How do you express a complaint when people are unhappy?', is that about quality of care? I do think we as a regulator have a key role there. So, you can get into quite a complicated view about what is a complaint and what is an expression of dissatisfaction.

Our experience of managing people coming to us—we aren't a complaints agency. We used to manage complaints, but we had no power to, and we got ourselves into all sorts of scrapes because we weren't able to resolve them to the satisfaction of the people using services or the providers themselves. We do receive a lot of concerns—about 4,500 a year—and many of those come through by telephone and people talking to us. The very act of clarifying—a lot of the people who come to us aren't actually wanting to make a complaint. Actually, what they want is advice.They're unhappy and they're looking for support. Looking at the referral rates and the proportion that go on to investigation by the ombudsman, I suspect that there's quite a lot of negotiation, again, at that front end.

So, I think if people have the opportunity to go orally to the ombudsman, there's quite a lot of opportunity to receive advice and support and to test out, really, 'Are you wanting to make a complaint?' There's an issue about what is a complaint, and, for me, it's when people want, actually, something to be done—they want redress for what they feel has been an injustice in the way that they've been treated—compared with the dissatisfaction that you want something done about it. One of the things that we have is a memorandum of understanding with the ombudsman, and a number of things come back to us and we're able to take stuff off the ombudsman because people don't want to raise it as a complaint but they want it sorted. They want something to happen.

Yes. And so I think that when you do get into this issue of someone saying, 'No, actually, I want to complain', there needs to be an effective record somewhere. Normally, it's a written contract with the person making the complaint. I think, in terms of the Bill as it's drafted, under section 8(8), it says,

'If the person does not wish the complaint to be confirmed in writing the Ombudsman must record this in writing'.

I'm not sure what it means by 'this'. I think it is only saying to record the fact they don't want it in writing. I think the ombudsman must make an effective record of what the basis of that complaint is because that will be the audit trail back to the contract and what the ombudsman then takes on.

So, I think that crystalisation—as Kate was saying, and you were saying, Sally—about exactly what it is that needs to be addressed and is the focus of the complaint has to be recorded somewhere.

Okay. Mr Evans, you welcome oral complaints, acknowledging some people have difficulty putting it in writing, but could you just tell us a bit more about the caveat that you have about people making oral complaints out of convenience rather than being unable to put it in writing?

I'd echo everything that David's said, really. We wholeheartedly welcome oral complaints and actually think it's essential, particularly with the potential complainants in social care.

Some of the practicalities that David's alluded to are quite complex in that sense, and while we say there must be local resolution with the employer of the individual before we can act, we can find ourselves in the position of saying, 'Well, would you want us to raise this with the employer?' because, as David says, there is a reluctance frequently to go directly to the provider of the care that the individual is delivering. So, I think it is that whole issue about the complexity of the area into which you start entering. I guess it goes back, again, to good working relationships so that the ombudsman is clear if it is a professional issue that he can refer to us so we can start some of those discussions or,  if it's more around service delivery, then David and colleagues may be more appropriate. But one can find oneself suddenly drawn into a very complex set of arrangements—family tensions, all sorts of arrangements—and, therefore, just recording that a complaint has been made is often not the easiest thing to do in that sense.

10:25

Okay, but, as Mr Francis says, advocacy is an important way of getting through the undergrowth here.

It certainly is. It's critical. I think advocacy for those individuals in care homes in particular is essential. The availability of advocacy at the moment, I suspect, is quite limited for many individuals. So, there needs to be a significant emphasis on that side of things. So, I think our view would be that it's essential that this can be done and that it's done well and that people feel supported through that process and, similarly, as I say from our point of view, those who are subject to the complaints also feel that that process is fair to them as well.

Okay. You also expressed concerns that this could widen the pool of vexatious complainants, and I wondered if you'd just like to—. Vexatious complainants tend to also be able to write them down as well—

They do, yes. I think this is just based on our experience. It's not a huge quantity, but there is something about the fact that it's sometimes easier just to pick up the phone and raise an issue than it is to sit down and write about it. It's something that may be easier to do in a moment than something which, when you sit and write it, may require some consideration. I don't think that is likely to be a significant issue, but there is certainly one. I think it's not just vexatious; individuals who've been through a range of complaints processes who then finally move on to the ombudsman's office to pursue a complaint again—. All of that just needs careful consideration, and I think, as we've alluded to, there are potential time commitments that have to be made to make that process work effectively. So, while we don't think—. Actually, as the ombudsman said, the number of complaints in social care is quite low at the moment, and we need to support that and encourage it, and oral complaints will be one way. Alongside some of that, there may be some factors that we just need to be aware of in how they are dealt with, really.

Okay, but so long as local resolution has to have been exhausted before the ombudsman looks at it, and the ombudsman already has skill in assessing whether it's appropriate to take on a complaint or not—.

Yes. I think all we were stressing is that, as the volume grows, it's potentially going to become a bigger factor that, sometimes, requiring local resolution before taking something on is not quite that simple when you get the oral complaint and you're there dealing with the individual at the other end, actually. As David said, a range of issues can suddenly open up. So, it is just the complexities of it. I don't think it's something to be addressed in the legislation itself; it's around the implementation of the legislation, I'd say. 

Okay, thank you. Mr Francis, I think, wanted to add something.

You mentioned earlier electronic communication. I think there's an opportunity here. We've been developing a process of notifications to us, where people raise stuff with us, and there are mechanisms by which you do something called structured data. By the questions you ask, you naturally cause people to reflect and make choices, and it makes it much easier then to triage and make a decision about what you're going to do with it. I think there is an opportunity of looking and exploiting the social media and the electronic approaches here to help people to think through, before they come to the ombudsman or to the regulator, exactly what it is they want to do, what it is they're reporting, and exactly what it is they want to happen. I'm just flagging that up—that it's worth embracing.

10:30

But this is the sort of good practice that you would normally share anyway, isn't it?

Yes, but what I've become aware of, as we've looked at it, is the real opportunity, both, as I say, to get people to think in advance and to reflect before they commit, and I think that's an advantage—before they pick up a phone—and also it makes it easier then for the agency receiving that to decide what to do about it and how to engage.

In terms of Gerry's concerns that there may be an increase in the volume of complaints, not through necessity, but through the greater ease of making oral complaints, I don't know whether Sally, David or Kate have any concerns, or are you content with what has been said by Gerry in that regard?

I think the opportunity to have a discussion with people and to give them advice actually could reduce. Although you may have a greater volume coming in, in our experience, good customer front-line care can actually divert work as well as increase it. So, I don't necessarily think it means opening a floodgate—I think it's providing a better customer-care service for people in terms of when they feel dissatisfied.

Can I just add—I don't have a concern about a growing volume, because, actually, more complaints about some elements of social care might be very welcome, but it's about being prepared to manage that—?

Just to comment—again, we record all the complaints coming into us. We do have quite a lot of social care complainants coming to us that, obviously, we can't manage. Then we signpost them back to the social care organisation or whatever. But I think, as David has just said, it is an opportunity to actually see what is coming in and certainly, on the number of calls we get, we look at the trends that are coming in, and if there are too many coming from social care, then we will raise it with, perhaps, the Care Quality Commission, and say, 'Why are we having this? What's wrong with these organisations?'

So, I think there is the opportunity to look at where it's coming in from. From our point of view, it's very much about looking at some of these tiny organisations that have set up that do not have a proper complains process in situ, and to record them. I occasionally will ring these back and get effing and blinding on the phone, and frankly think, 'Gosh, this shouldn't be in existence.' I think if all of us perhaps shared that information, it would stop some of the bad practice, because there are still an awful lot of organisations out there without complaints processes treating people with drug problems, weight problems, and on the cosmetic side. It worries the life out of me that they don't have a proper complaints process.

Okay. Sally, thanks for that. Moving on, in terms of section 10 and the matters that might be investigated, do any of you have any concerns that there may be practical difficulties with the inclusion of private healthcare or are you all content with that?

We think it's good that if a complaint transgresses, both in the private sector and the NHS, then there should be communication. The chair of our governance board, Baroness Fiona Hodgson, joined us in 2004 because she had a complaint, transgressing both the NHS and the independent sector, and really had an awful time, because neither organisation could talk to each other. There weren't any mechanisms. And the complaint that the ombudsman referred to in the evidence: yes, that would have been much better if the two organisations had a mechanism to talk to each other, and I think this shouldn't only be Wales, it should be across the four countries. So, I hope that whatever you put in will be communicated to the other countries, because we're in it to look after the patient and, frankly, they sometimes forget which organisation they're in, and their main thing is to deal with that complaint.

So, we don't have any problems at all, but there's got to be information-sharing protocol; we've got to make sure that, in this case, HIW knows what everybody's doing, and the NHS knows what their responsibilities are, and the private sector knows what their responsibilities are, because, frankly, it's us that's got to do it, not the ombudsman. We wouldn't expect it to go straight to the ombudsman to try and sort out. It should be sorted out at the first stage. I mean, I think the complainant that was referred to spent the first part of his treatment in the private sector and then was discharged and then admitted to the NHS. There should be a mechanism of communicating with each organisation.

10:35

Okay. Thanks very much for that, Sally. Would you all be in agreement with that? Yes. Okay. Well, we'll move on then to Janet Finch-Saunders, who has some further questions.

My question was whether—. It sounds like you are very supportive of the provision in the Bill relating to complaint-handling procedures, but I suppose a question I have for you, where you've got service providers with either a very poor or indeed no formal complaint procedure, is: how do you think we're going to overcome this, when it's actually mentioned in the Bill?

I haven't looked into what HIW have got, but we have shared our concerns with CQC, and they've suggested a form that we [correction: the patient] can just complete and send to the headquarters of CQC, and then they will look at all these and see whether there are numerous ones coming. I think we have a responsibility in Wales, as well, if we're identifying complaints coming from some of these organisations, to share these with our information-sharing protocol that we have with HIW. We're renewing those in the four countries at the moment, and I think there should be a statement to let the system regulator know if there are organisations out there without a complaints mechanism, because it's totally unfair to a patient if they have no mechanism to complain.

Because we, as AMs—quite often we become the door that they come to.

I know you do, yes.

And quite often we refer, and some organisations, frankly—it beggars belief. Some organisations are very good, and some—. I do worry that we are strengthening the powers of the ombudsman, and yet, one of the precursors is that the complaints process of that particular service provider—they've got to have gone through that, and going through that can be really problematic. And then, I think, people sometimes just—. And then it just prolongs the grief as well of the person. I'm really keen to see very strong regulations in Wales, but also very strong advocacy for people, because I know we've had lots of issues in terms of the health service, for instance, with complaints. And then I've had to refer to the ombudsman and to section 16 public interest reports out of that, but it wasn't easy. It wasn't easy for us, and we have a team, but it was very, very difficult for the aggrieved families and what have you. So, I'm pretty keen to ensure that with any powers we give the ombudsman, there isn't a let-out for other organisations. Quite often, I do see on the bottom of letters, 'Your next recourse is' and, you know, 'You can always go to the ombudsman', and a lot of people don't know what an ombudsman is. So, it's almost, 'Oh, no, I can't—that's the end', even though that complaint hasn't been handled properly by the service provider in any shape or form. They leave that on the bottom and that seems to be where it falls off the cliff then.  

10:40

I think if we implemented in the four countries the alternative dispute regulations that are European, that any customer-facing business should have an independent review stage—I would like to see the four countries introduce that. Any organisation that sets up—somebody must know about them, because, you know, they can't just set up by themselves although they seem to. They must have an independent review stage so that whoever's been treated has some redress. I mean, HIW—our information sharing has just been redone, so hopefully we can actually introduce some kind of statement.

But are you content with the complaint-handling procedures proposed by the Bill?

I agree there are a number of organisations where their understanding of the management of complaints is limited. Social Care Wales will be moving on to regulate the care workforce and we know, from our conservations with David, there are a number of small providers who perhaps don't even have the infrastructure to have some of those elements in place. What we're hoping to do, as part of moving into that regulation, is to work with those providers and some of their representative organisations around the sort of processes we need to have in place to collaborate with them, to work jointly, so that if matters are raised with them, it then fits with our requirements as well in terms of effectively and efficiently dealing with any complaints that have arisen. So, we're seeing it as a developmental opportunity, but I think it will be a struggle for some of the providers. 

Okay. Kate, you note in your written evidence that while you consider this provision to be a helpful provision, a clear lead body for the investigation will be important.

This is about where we were undertaking joint investigations. I think, for me, there is something that would be very helpful, which is about removing completely unnecessary differences between complaints-handling arrangements. There's a clear move towards—if you think about health and social care at the moment, rather than public/private—integrated health and social care. For staff to be thinking, 'Am I working under the social care arrangements?', which have a 25-day turnaround, or is it 30-day turnaround, and health has a 25-day—? Even little differences like that mean that staff have to step back and say, 'Which hat am I wearing at the moment?' That, to me, isn't truly integrated.

I think we need to think about this from the perspective of the individual who wants to make the complaint as well. They shouldn't have to think before they complain, 'Exactly who is it I'm complaining about?' or 'Which body is providing which bit of the care? I'm simply dissatisfied'. Bringing it back to the Bill, by the time they get to the ombudsman, they're even more either dissatisfied with the response they've had or frustrated at the fact that they haven't been able to figure out how to get purchase with the integrated nature of the complaint that they've got.

I've lost track of the question, really. It is something that I feel quite strongly about. We should look at this through the lens of the complainant and think about how we make it as easy as possible for the individual who wishes to raise concerns.

Okay. This is an interesting one for me—the extent that witnesses share the NHS Confederation's concerns that the Bill does not take account of the 'Putting Things Right' regulations and the processes that are already in place within the public health sector in relation to complaint handling.

Can I refer you to my previous response, which is that, actually, the 'Putting Things Right' arrangements should be reflective of the common public service approach to handling complaints and the way in which individuals can raise their concerns about the delivery of public services, particularly within an integrated care setting? Where there are those joint investigations, it should be clear how they're taken forward—not one or other of the complaints processes necessarily competing with the other.

Would you like to see anything specific in the Bill in that regard? 

I think, for me, it depends on how the ombudsman would take forward the proposals for common complaints-handling arrangements, what sort of representations he might be making to public bodies—there's no reason why you can't have a 'Putting Things Right', but let's align as far as we can with social care so that the two sides of it are doing the same. He's got some powers in there for saying what the principles should be, who's compliant, who's non-compliant, spreading best practice, really promoting that. It almost comes back to where we started this conversation: it's about making the system work in collaboration and work in a way that is joined up and integrated. So, it's do-able, I think, within the confines of the legislation as it stands, it just requires the will to implement it and take it forward.

10:45

What about the identification of the clear lead body? How is that going to be dealt with?

It could be dealt with within the principles and the procedures that he comes up with as the model—clear procedures for the handling of a joint complaint; in the case of a joint complaint, one body could or should be identified as the lead. I don't think it necessarily has to be done on the face of the Bill if it can be done through supplementary guidance or procedures.

Okay. Thank you. You assert that the provision will

'pose a challenge with implementation which will need to be carefully managed'.

This is because there are a number of actors in the field of identifying and investigating systematic problems. Do you have anything more to say on that?

I think this brings us back to our own-initiative. It is part of the narrative that we do not investigate complaints. However, we do encourage people to raise their concerns with us, and, if we identify a systematic issue, we may investigate it and go on and do our own investigation of that issue. Likewise, the ombudsman may identify systemic issues coming out of the pattern of complaints. I would hope and expect that, in the first instance, he would have a conversation with us to say, 'I'm seeing this. Are you seeing this? Are you planning to do anything on it?' We have to set priorities within the envelope that we've got. If it's something that isn't at the top of our priority list, it may be that it's appropriate for himself to do so. But, likewise, the auditor general also does national studies on systemic issues. It comes back to the need for the different parties to be making sure they're working effectively together so that they're managing different roles and responsibilities.

They do.

And then, for ISCAS—to expand on how this provision compares to provisions within the private healthcare sector. Sally.

I've sent the documents that we have. We do an annual report where we look at the trends that have come up and the highest head of complaint, which unfortunately this year, or last year, was complaints handling. So, we've implemented additional training on that. We also have a quarterly meeting of our advisory group and we look at the trends that have come out of the adjudications in three months. For instance, in the last month, one was about consent, another was legible documentation, particularly with consultants, and that's shared with everybody. In fact, we do name and shame. So, if for instance BMI are having a number of consent problem issues, then they're asked to talk at the governance group about why is this happening and what are they doing about it. So, I hope we're open and transparent about that. We do share the annual report with everybody concerned. In fact, when we re-did the code, I got more comments from Wales than anywhere else, which was great.

We're open and transparent on what we're getting. It wasn't a comfortable issue for me to see in our annual report that complaints handling was our highest head of complaints. Obviously, that's not good news for the sector. But the way of telling everybody about that—'Okay, I've sent you our training sessions', and we are continually doing something about it and we will be having interviews with subscribers after they renew and picking out some of the things that we've identified with their complaints handling.

Okay, thanks for that. We move on then to Siân and financial matters.

10:50

Diolch. Rŷm ni wedi cyffwrdd ychydig ar hwn wrth drafod. Mae yna un farn bod hwn yn mynd i gostio mwy, ond mae yna farn arall y byddai arbedion cost yn gallu deillio o weithio ar draws sefydliadau. Beth ydy eich barn chi am hynny? Mi ddechrwn ni efo Kate, efallai.

Thank you. We have touched a little on this in our discussions. There is one view that this is going to cost more; there is another view that there would be cost savings stemming from working across organisations. What are your views on that? We'll start with Kate, perhaps.

In a way, we're asking the ombudsman to do more. So, we're asking him to put new procedures in place to deal with oral complaints. We're asking him to pick up a very small number, and I think he said seven in the impact analysis, of cross public-private—. We're asking him, potentially, to take a broad role in overseeing complaints procedures across public services generally.

I think, given that we're asking him to do more, it is not unreasonable—. And own-initiative investigations, of course, of themselves, are going to take up time, so the fact that he's being asked to do more is likely to mean that there are going to be increased costs associated with this.

It's difficult for me to see where those efficiency savings might come from. I think the efficiency savings are probably not a result, necessarily, of the Bill. The efficiency savings could come from public bodies becoming much better and more efficient at handling the complaints they are receiving so that fewer go through to the ombudsman, but that certainly hasn't been the trend recently in terms of his case load. So, it's difficult to see where that might be.

I think an opportunity to give some specific focus to how we really make complaints processes work, both in terms of the timeliness of them, which can quite often take a lot of the attention, as opposed to the quality of them, but also the learning from them—. We need to make sure the public services bodies are learning from the things that are not going right in some of these instances. That's about the efficiency savings in the system. But, no, coming back to the Bill, I'm not entirely sure I can see where the efficiency savings might be as a result of the Bill.

In my experience—. My experience of working in the ombudsman's office to date is I think they are very clear about their role and they are very efficient in the way that they operate and they're very clean in their decision making. I agree with Kate that there's an expansion here. We do do work with other inspectorates. We've done work with Healthcare Inspectorate Wales. We do common reports and we're doing a lot of work with Estyn at the moment on joint inspection work. People are asking, and saying, 'There should be efficiencies about you working together.' The reality of my experience is that, actually, in terms of co-ordination, joint planning, in terms of writing joint reports, by and large, actually, it's taking more time. So, this idea that, if you bring people together, you'll get efficiencies has not been my experience in terms of delivering stuff. You get a better and stronger product, but it hasn't resulted in cost savings, in my experience, because of the need to communicate, have joint meetings, to plan together, to report together, to test things out. So, I wouldn't be seeing that from my reading of what's being proposed here.

A, Gerry, rŷch chi wedi sôn yn barod ynglŷn â'r cynnydd potensial mewn cwynion llafar. A oes unrhyw dystiolaeth i gefnogi eich honiad chi eich bod chi'n meddwl efallai bod hynny'n mynd i arwain at fwy o gostau?

And, Gerry, you've already mentioned the potential increase in oral complaints. Is there any evidence to support that claim that you make that that would lead to greater costs?

I think, inevitably, the numbers of social care complaints are going to grow anyway. If the management of that is done effectively—and I agree that we are asking the ombudsman to take on some additional, extra duties there—the savings should be there in the way that that volume increase is managed. I think it comes back to the point that if we can all work collaboratively well together in terms of getting clear messages around complaints handling et cetera out to the public and to the providers of care then there may be efficiencies, there may be savings, but it'll be across the board as opposed to perhaps in the ombudsman's office itself. So, there are gains to be had, but, given the volume that may well happen anyway, given the low base that we're starting from in the care sector, potentially there will—. I can't see, again, as Kate said, where those efficiencies are going to come from, but, over time, one would hope that we would get better at helping the sector to address these issues, and also getting the public to understand some of the issues and be clear about what expectations they should have and how those should be responded to. So, it would be a general effect, hopefully, as opposed to one that is directly within the remit of the ombudsman's office. 

10:55

But there's no direct evidence from similar kind of scenarios to support what you're saying, really, is there? It's a bit of guess work, I guess. 

I must admit I'm not familiar with that sort of evidence. I'm sure there must be other examples where this has been tried, but I'm not aware of that evidence, no. 

Fine. Just turning to the private sector, Sally, what kind of cost implications has the Bill got for you?

Well, it has said in the Bill that we wouldn't incur any additional costs with the complaint being handled jointly by the two organisations. I was kind of disappointed that it said we have no idea of the private sector's costs. We publish our costs on a yearly basis and it's no secret how much we pay on adjudicator costs, goodwill payments and clinical experts. From what it says is that we won't incur any additional costs. So—

But you realistically think that that's—you know, what we heard from your colleagues—

I think it will be more efficient, because, frankly, the case that is given as the example, which took five and a half years to complete, was because the patient was going backwards and forwards from the NHS to the private sector and playing one off against each other, really, and saying—. It was really not well handled. And I think what both organisations didn't realise is when the grief stopped and when they should start saying, 'Well, this is a complaints process.' We have a time frame for a complaints process, and our time frame is to complete it within six months, not five and a half years. So, hopefully, it will result in more efficient handling if we can both communicate. There's nothing stopping us communicating now, but, you know, permission to communicate—. So, I can just see cost savings, frankly, if the two organisations dealing with the complainant are communicating, and both will have their time frame that they have to settle it.

Even if there are more complaints as a result of the Bill.

I don't know whether there will be more complaints. I think everybody is actually seeing more complaints at the moment. We're certainly seeing an increase. I think the ombudsman in England is seeing an increase. I think we have to monitor what's going to happen with private patient units. These are increasing in England, and I think you've got two small ones in Wales, and it's on my action plan to have a look at what's happening there, because this change in legislation will be where there could certainly be working together because these private patient units are within a trust, aren't they, or within—. So, it will be easy to manage the complaint there, and I think—

I'm interested to hear about these, but I'm not aware of them. Is anybody else?

I believe there's two. Kate will perhaps—

Off the top of my head, I know where one of them is, or I think I know where one of them is. It's quite interesting really because, being part of the NHS, they're not separately registered, because they're covered under our NHS inspection responsibilities rather than our private registration arrangements. So—

There's one in Bridgend, and there is something in my head that makes me want to go further west, still relatively in the south, with the second one. Where's the second one, Sally?

I haven't—. I meant to do it, and—

Oh, well, perhaps you could provide the committee with a note subsequent to today.

I'd be very happy. We have spent 10 years campaigning, writing to the health Minister, to get the private patient units included in a complaints mechanism. In England, they have not even been inspected by the Care Quality Commission and they've had no access to a complaints process, and I think we might find the same here, because—. 

11:00

It's one of those issues that we flagged up in our response to the White Paper, 'Services fit for the future'. It's about how we tidy up our legislative underpinning so that we can make sure that we can go to the right places and take the right action. 

Kate, might you also send the committee a note on that? 

Happy to. 

Okay. Just finally, Sally, I think what you were saying about the cost being readily available in terms of dealing with complaints in the private sector, is it the case then that in terms of the financial implications set out with regard to this legislation that perhaps a little more homework might have been done?  

More homework by the ombudsman? 

Yes, I think so. We've always sent our reports and there's a section—a whole page—on finance, so—

It's been readily available. We started doing it—. I mean, these figures go back to 2010, so we compare the costs each year. So, there's no reason why—. 

No. And the estimate of seven cases a year with private health, estimated with costs of £3,500. Does that seem realistic to you?

I think it does, actually, because we—. Well, we've only had that one difficult one that was finished two years ago, and I don't think we've had any others that have been transgressed that have come to our third stage. 

No. Okay. Well, that's fine. Thank you all very much. Thanks for giving evidence to the committee this morning. You will be sent a transcript to check for factual accuracy. Diolch yn fawr. The committee will break until 11:10.

Gohiriwyd y cyfarfod rhwng 11:02 a 11:10.

The meeting adjourned between 11:02 and 11:10.

11:10
4. Bil Ombwdsmon Gwasanaethau Cyhoeddus (Cymru): sesiwn dystiolaeth 8
4. Public Services Ombudsman (Wales) Bill: evidence session 8

Okay. Welcome back to the committee for item 4, evidence session 8 on our Public Services Ombudsman (Wales) Bill scrutiny. I'm very pleased to welcome Kevin Thomas, director of corporate services at the Wales Audit Office, and Martin Peters, head of law and ethics at the Wales Audit Office. Thank you both very much for coming along to give evidence this morning. Our first questions are from Siân Gwenllian.

Bore da. Rydw i eisiau trafod yr ymchwiliadau ar ei liwt ei hun, ac yn amlwg mae yna waith sydd yn digwydd gan yr archwilydd cyffredinol yn y maes yma hefyd. A ydych chi'n credu bod y ddarpariaeth yn y Bil yn ddigon i wneud yn siŵr nad oes yna ddim gorgyffwrdd, a bod yna ddigon o ymgynghori a thrafod efo swyddfa'r archwilydd cyn i'r ombwdsman fynd i wneud ymchwiliadau? Efallai y byddai'n ddefnyddiol gwybod beth sy'n digwydd ar hyn o bryd. A oes yna unrhyw fath o gydweithio o safbwynt y math yma o waith ar hyn o bryd?

Good morning. I want to discuss the own-initiative investigations. Clearly, there is work that's undertaken by the auditor general in this area as well. Do you think that the provisions in the Bill are sufficient to ensure that there is no overlap, and that there is sufficient consultation with the auditor general's office before the ombudsman begins his investigations? Perhaps it would be useful to know what's happening at the moment. Is there any sort of joint working in this sort of area at the moment?

Thank you. We are quite happy with the provisions of the Bill in terms of liaison. I think we're talking about section 67, where the ombudsman is encouraged to consult with the auditor general.

It does say when appropriate, when he thinks it's—

pan mae'n 'briodol'.

when 'appropriate'.

So, it's a bit subjective.

It is, but I think that's a reasonable approach, because we don't really want to be consulted about everything. The ombudsman undertakes a lot of investigations, and some of them, if they're systemic—about systems—will clearly be of interest to us. But if they are, for example, an extension of a personal case, I don't think we would want to be consulted about that, and I don't think it would be appropriate. So, we're quite happy with that because we think it would be quite difficult to make it more rigid, as it were. No, you wouldn't set out to make it rigid; you'd set out to try and make the legislation account for what would be appropriate and what would not be appropriate. You could perhaps mention systemic investigations, but I think even that raises probably more trouble than it's worth. So, we're quite happy with that.

In terms of what happens at the moment, I'm not on the studies team at the moment, so I can't really speak for actual practice this year, but I know that in previous years we have consulted anyway about our respective—well, we've consulted the ombudsman about our programme. Indeed, we publish our proposed programme so that there is consultation that way. And of course, more recently, we have been consulting with the ombudsman, or the ombudsman has been consulting with us, about the proposals for the past two years, and has done so helpfully, I think, at an early stage. So, we think we've got good relations with the ombudsman and we would expect that consultation would be constructive in the future, even if these provisions weren't here.

And in general terms, do you think that the safeguards are robust enough as far as the individual investigations are concerned?

In terms of the own-initiative investigations?

Yes, in terms of the ombudsman himself doing investigations. Are those terms of reference robust enough? Because they're about if they're non-public interest, or—

Of course it's difficult for legislation to act as an absolute safeguard over the appropriate application, but I think what's in the Bill gives a helpful steer in the right direction. The requirement for the own investigation is to make sure that, firstly, it's in the public interest and that the ombudsman's satisfied with that, and then, that either a vulnerable person is affected or that there's a systemic failure that's likely to lead to hardship or injustice. So, it seems to us that those criteria are really helpful and should help to ensure that any investigation is into a worthwhile issue, with a good outcome.

11:15

But they're quite wide, aren't they, and could be misinterpreted if an ombudsman in the future had a personal mission to go after a certain aspect. Are they open to being misconstrued in the future?

I think they're helpful and clear criteria. Of course, there's always some element of interpretation, but at the same time, you wouldn't want to be overly prescriptive, which might then restrict the ombudsman's ability to look at things in an appropriate and reasonable fashion.

And, is there enough scrutiny, do you think, in how the Bill is laid out now—is there enough scrutiny on that? Who would say, 'We don't think it's appropriate for you to go down that avenue'? How would that work? It's not clear to me, from the Bill, that there is enough built-in scrutiny, especially before embarking on investigations.

I think there's sufficient provision for—. Well, it's a requirement on the ombudsman to consult the bodies affected. So, they can raise concerns; they have that opportunity.

I think, also, the ombudsman will be mindful of his own reputation, and that will be a brake in itself on any sort of temptation to pursue hobby-horses. I don't think that's a very likely scenario. At the end of the day, if he acts really unreasonably in the legal sense, then he'd be subject to judicial review. I think a local authority, for example, that was—how can I put it—being picked on unreasonably, that was having investigations that weren't reasonable, and being subject to that, one would hope that it would never happen, but a judicial review would be something that they might contemplate. It wouldn't be the first time that a local authority has sought judicial review.

And there is provision, as well, for Ministers in future to have a look at the safeguards and to change those.

There is, yes.

But could that be construed as there being a possibility, in future, for Government to actually influence the way that an independent person should be acting?

I think, in theory, that's a danger. Those changes are made by regulations and those regulations are subject to the affirmative process, so that means the Assembly has to approve them. So, there is a check on that, so I think that that's helpful. If there weren't the affirmative process, then that would be a justifiable concern.

Good morning. I just wondered if you could explain to us why the auditor general has some reservation about the absolute necessity for legislative change in respect of oral complaints.

Sure. I think it's important to point out that we don't have an issue, as such, with the way in which section 8 of the Bill provides for accepting oral complaints; it's more around the absolute necessity of legislative change. Because, under the current legislation, there is the ability for the ombudsman to actually accept an oral complaint if the ombudsman considers that that's reasonable. I suppose, where the new provisions are particularly helpful is in respect of the ombudsman not having to justify the reasonableness of the thinking behind accepting an oral complaint. That could be challenged, say, by a public body that isn't happy with the decision to accept an oral complaint, so, I suppose, in that sense, we see the new provision as being conducive to the acceptance of oral complaints and following them through.

11:20

Do you think there's a need for some tightening in the Bill of the way in which oral complaints are handled? For example, HIW suggested that the ombudsman must capture the information in a written format. Once they've received the oral complaint, they then need to write it down and feed it back to the complainant. Do you think that the Bill is sufficiently precise about the handling of oral complaints?

I think the Bill is fine in that respect, because they will have to do that anyway. Otherwise, they'll get into a terrible muddle—

Indeed, indeed. And there is a requirement on them to explain that a complaint has been duly made and the implications of making that complaint. I think it goes along with that that they'll be saying, 'Well, you've made this complaint. We understand that this complaint is such and such. As such, it is duly made, and, if you say "Yes", we will proceed with it', and I think that's probably sufficient.

You don't think it's necessary to have any written record of what's been agreed, even if it doesn't come from the complainant. 

I think it will follow naturally. There may be merit in—. I mean, at the moment, the Bill says,

'If the person wishes the complaint to be confirmed in writing'.

I think that will happen in any case, but it could perhaps be changed so that it says, 'Complaints must be confirmed in writing.' 

Okay. I understand that you have some concerns about that. Do you think that there need to be any specific provisions within the Bill on guidance by the ombudsman on the making and referral of complaints, in order to not tread on the toes of other regulatory bodies? 

I think the provisions for the development of guidance in the Bill are appropriate. I think we don't feel that there is a need for additional detail within the Bill about the contents and nature of that guidance. There's a risk of being overly prescriptive, which, in turn, could perhaps limit the ombudsman's ability to develop, refine and improve that guidance at a sufficient pace. And, I suppose, in turn, that could undermine the effectiveness of that guidance. I think the ombudsman's really at the sharp end of dealing with complaints and so is very well placed to develop an appropriate set of guidance.

Thank you, but how do we prevent the ombudsman being the repository for all public service complaints as opposed to getting everybody to put things right in their own organisations?

Well, I think that's where Part 4 of the Bill really helps.

So you think there are sufficient boundaries. We don't have any concerns about the current ombudsman going off on fishing exercises, but the Bill has to be strong enough to ensure that somebody else with an obsession isn't allowed to just pursue it.

Well, I think, as I said before, if it's a case of an obsession and the ombudsman's acting unreasonably, someone, sooner or later, should stop him with a judicial review. I don't think we can—. It would be very unhelpful, I think, to try and legislate for all eventualities, particularly when it comes to things like areas that—. How can you frame legislation to say that the ombudsman shouldn't get excessively interested in a certain subject? It seems a bit difficult to do.

Just moving on, really, to the matter of extension of the ombudsman's powers to investigate matters relating to private health services where the complainant has received both private and NHS or social care services. Are you content that this an appropriate expansion of the ombudsman's powers?  

11:25

Yes. Certainly in principle it seems a sensible thing to do in that you have situations where people are going through a care pathway, they have treatment from the NHS and then it's suggested to them that they might commission their own private care as an interim measure, for example, within the NHS pathway. And there will be situations where you can't really look at what's happened if you can't look all the way through. So, that makes sense. I know this is treading on private sector care, but private sector healthcare is something that is quite heavily regulated anyway. I don't think this is a significant additional burden.  

Okay, because, obviously, the ombudsman does give an example of where his investigation has been frustrated by a private organisation that simply refused to engage. Do you think that this is using public money to rectify private bodies? 

Well, it could be, but I think it would be to the public benefit and so it would still be a justifiable use of public money. 

Are you supportive of the provision in the Bill relating to complaints-handling procedures? And as a minor supplementary, do you believe that the bodies that this Bill will cover have sufficient complaints procedures now within them to be able to fulfil that obligation—that, really, you should have gone first to the service provider, or whatever, and gone through their process before you go to the ombudsman? 

We are supportive of the complaints-handling procedure provisions in the Bill. We see them as quite helpful. To illustrate, if you like, by analogy, we've seen how probably about eight or nine years ago the information commissioner produced strong guidance on complaints handling—they're called reviews, but it's the same thing, really—in respect of freedom of information requests. Up to that point, there had been quite a variety of approaches that public bodies had taken in terms of dealing with FOI complaints. 

But it's a lot better than it used to be. 

I mean, our own, for example—we inherited a procedure from the Audit Commission that I think was designed with the best of intentions, but it had about four steps in it and each of those had to be done very thoroughly, and it meant that a complaint would take a long time to deal with, whereas, really, people want rectification quickly. And I think that guidance certainly helped us and we saw it helped other authorities. I don't want to name any names, but I think there were some local authorities on the other side of the border that had shameful practices when it came to FOI requests, and that really nipped that in the bud. 

As to the second part of your question, I don't think we've actually looked across the piece at complaints-handling processes in Welsh public bodies. That's perhaps an idea for a future study. 

And that might fit with a post-legislative review, perhaps. But, yes, I think the impression I get—because we do pick up complaints from people when they have complained to a public body and they haven't had any joy; they'll come to us, and they'll try and put a sort of 'This isn't good value for money, so can you please look at it?' angle to it. I think it's probably quite variable, but I wouldn't say that it's universally bad.

11:30

I think I'm more concerned about those, especially where we're talking now about private healthcare, palliative care, and some social care elements, where they do not have complaint processes in place. It's going to be very hard, isn't it?

Those aren't public bodies, though—

No, the private ones aren't, but where you've got social care being provided by a local authority or other—

I'd be surprised if there are any public authorities in Wales, other than maybe the odd small community council, that don't have a complaints procedure. Whether they adhere to it or not is another matter. 

Yes, it's the interpretation and adherence to it that's key, isn't it?

But Part 4, I think, will help them. For one thing, it should help in terms of efficiency, in that if the ombudsman is promoting good practice in these procedures, they don't have to invent good practice themselves. Hopefully, they're sharing ideas anyway at the moment, but it should be conducive. 

Okay, thank you. Does the Bill, in its current form, pose any challenge or concerns to you, in your opinion?

The Bill as a whole?

In terms of complaints handling. Right. Well, I think there's always a danger—and some of the earlier questions I think picked this up—that if the ombudsman becomes obsessive about something and starts promoting onerous procedures, perhaps creates a model procedure that is very detailed and requires authorities to do a lot of work, then that could be counterproductive. But, again, I think this is where the reputation matter comes in. Why would he want to do that? I think he will want to promote complaints procedures that are credible to everybody, that authorities can live with and find easy to operate, as well as give reasonably timely results for the general public. So, there's always a risk that someone with some discretion will use it badly, but I don't think it would be a good thing to legislate discretion away. 

Okay. If we move on then to Part 6 on investigations and some of the supplementary provisions. The auditor general is concerned that he should be more clearly protected with regard to potential actions for defamation with regard to joint investigation, communications and reports, and suggests that those concerns might be addressed by amending section 70, so as to extend protection to cover the auditor general in respect of those joint investigations. Could you expand a little on those concerns and the need for the suggested amendment?

Yes. This probably seems a very technical issue, and I would certainly say this: it is. But it's important because we have experienced threats of actions for defamation in reports that we produce. And as long as we lay reports, we have good protection because auditor general reports that are laid before the National Assembly are protected from actions absolutely. Now, the issue here is that we don't think there's clear protection for the AGW in respect of joint reports. That's because, although section 70 protects the ombudsman, members of the ombudsman's staff and persons assisting the ombudsman, we're not clear that that covers joint working, because joint working is, I think, a different thing to assisting. In commonsense terms, you'd expect there to be assistance, and no doubt there would be assistance, but joint working could be a matter of working alongside one another without actually assisting each other. So, that's one element of the concern.

The other element is that, although there's, I think, an exception in—. No, that's it; sorry, I'm getting confused with something else.

So, essentially, it's a lack of clarity that the AGW's joint report with the ombudsman would protect the AGW from an action for defamation because we don't see joint working as necessarily assisting the ombudsman in a strict legal sense.

11:35

Just to clarify this: if you're doing a joint investigation and you fail to agree on your conclusions, you'll presumably do separate reports. You'll come to different conclusions and then you'll publish them separately. I don't understand in what way this Bill needs to protect the auditor general when he will be perfectly entitled to disagree with the ombudsman, if you think that your conclusions on the evidence are different.

Certainly. If we produce a separate report, and I'm sure we could produce a separate report if we had particular concerns about an issue—

—we'd have to do another study, a separate study by the AGW, on the matter. We could then lay that, as long as it wasn't a local government matter, because we can't lay local government reports. I can't see how we could have a joint report. Well, I suppose we could have a minority report—

You couldn't have a joint report, if you can't agree on the conclusions, but you could have a minority report or a different report. So, I don't understand why you need to have separate protection from defamation, given that you're going to be able to, in most circumstances, agree what your conclusions are.

I don't think the fact that we agree the conclusions is a matter of assistance—it's a qualitatively different thing.

And given that we're talking about potentially expensive actions, we'd like to have certainty as soon as possible in terms of the legislation, rather than leaving it and potentially finding out when we're facing a huge legal bill that we're not protected.

So, you're saying that there could be a joint report and the ombudsman would be fully protected in relation to that joint report, but you might not be where there's this issue in terms of assisting as opposed to joint working.

Yes, indeed.

Okay, if we move on then to section 68, disclosure of information. Again, I think there's a concern that you have the provisions in section 68, but they do not adequately take account of the full range of the auditor general's functions, which are not limited to examinations. Again, could you expand a little on those concerns?

Yes. We see section 68 as being a prohibition on disclosure and we think the key to understanding this is that subsection (2) says,

'The information must not be disclosed'.

When it says 'the information', that includes information obtained by the ombudsman from the auditor general. One way of reading this is that the prohibition only applies to the information held by the ombudsman, but we don't think that's a safe interpretation, not least because we have a similar prohibition in our section 54 of the Public Audit (Wales) Act 2004, which, again, is a prohibition and it similarly has a subsection (2) that says,

'The information must not be disclosed except in accordance with any of these—'.

We have interpreted that as applying to that information regardless of who actually holds it. We've taken that interpretation—. Well, we've followed the example of the Audit Commission, and before the Audit Commission, the district audit service, in taking that approach. So, for example, this is one of the ways that we stop our draft reports being leaked: if we obtain information from a local government body and we write it up in a report and then provide that report back to the authority, we will put on the front that disclosure of this report will be an offence under section 54. So, we would take the same—. That is our normal interpretation of this kind of formulation. So, if the intention is just to restrict disclosure by the ombudsman and the ombudsman's staff, then we think that needs to be more explicit. You could quite easily do that, I think, in the way that you draft subsection (2). I'm not sure whether you would actually want to do that, but that's really more of a matter for the ombudsman. I think he will be in circumstances where he's sharing draft reports where he won't want them leaked.

11:40

Okay. Thanks for that. Also, I know there's a concern with regard to section 68 that you have, in terms of co-operation under section 67 being discouraged.

Yes. I've established that we have a fear that—. Sorry, just a minute. With the prohibition, our fear is that if we share some information with the ombudsman, for example, regarding a local authority, and we subsequently find that, actually, that information relates to some proposed unlawful expenditure and we ought to issue an advisory notice, it may be necessary to include some of that information in the advisory notice, but then we find that we're subject to a prohibition, so we couldn't issue the notice. So, that might make us a bit cagey about sharing information with the ombudsman if that possibility were to arise. 

This comes back to the issue of for what purposes we can disclose. There is mention here of investigation that appears to apply to any person undertaking an investigation. Indeed, if you look at the interpretive clause of the Bill—which is, I think, 76—investigation covers examination. So, we could, it seems, disclose information if we needed to for a VFM examination, but the problem is, an advisory notice is not a VFM examination. So, it would seem that the prohibition would apply in that respect.

So, we do think this needs perhaps some adjustment to make sure that is doesn't either get in the way of the AGW's functions, if we do share information, or put us off from sharing.

Okay. Thanks for that. We'll continue then to Schedules to the Bill, and Jenny Rathbone.

The auditor general has argued that the audit provisions fall short of best practice and I'm just struggling to see, under section 17, where you want that changed. Clearly, we want the auditor general to be able to ensure that, when auditing the accounts, we are securing economy, efficiency and effectiveness. So, I'm surprised you don't have that power already. 

The issue is that Schedule 1 is essentially a standard central Government provision, and what that does is it therefore omits the requirement that we have for all local government bodies and all NHS bodies, for the auditor general to be satisfied during the course of his work that the body has put adequate arrangements in place to secure economy, efficiency and effectiveness—the three Es that collectively help us to form a view as to whether or not value for money is being achieved. For those bodies, we issue what we call the value for money or VFM conclusion. We do think that it's good practice in terms of ensuring public bodies secure value for money for that requirement to be in place. That forces us to come to an overall view as to whether or not proper arrangements are in place. And then, if we do have concerns, such as concerns around weaknesses in priority setting or budgeting, we can carry out further work to investigate that more thoroughly.

Without a statutory requirement to be satisfied as to whether or not the body has got arrangements to secure value for money, we can try to address that voluntarily, but we would need to reach agreement with the ombudsman to carry out that work. And if we can't reach agreement, then we can't do the work. I'm not singling out the ombudsman in particular here in terms of agreeing to work for which we would charge a fee; of course, audit fees are a subject of great interest to all audited bodies, so this is not about the ombudsman per se.

Of course, if we had very significant concerns about a particular activity, we could carry out a specific value for money examination or study, but that would tend to be comparatively expensive. And essentially, at the end of the day, if the requirement to be satisfied as to the arrangements for securing economy, efficiency and effectiveness is good for local government and if it's good for the NHS, then we think that it's equally appropriate to apply that requirement to the ombudsman.

11:45

Okay. So, this is to enable you to investigate whether or not the ombudsman's requirement to produce documents, et cetera, has been reasonable in terms of value for money, is it?

It's more the overall arrangements that the ombudsman's put in place to secure value for money, rather than a specific investigation. As I say, if we had particular concerns in an area, then we could carry out further work to unpick that, but it's essentially the starting point to look at those overall arrangements and whether or not they are robust, whether they're sound.

Okay, but you think it needs to come into section 17. I don't quite understand why.

Okay, all right. And then could you just explain why you want the removal of the four-month deadline?

Yes. The four-month deadline really, in our view, doesn't serve any useful purpose and, occasionally, causes great problems. I think one of the key things to remember is that the real driver for us to do audits quickly and in a timely fashion is not the statutory deadline, but rather making sure that we don't hold up the whole of Government accounts, and also to provide bodies with timely reporting in any event.

It leads to practical problems. We saw this with Natural Resources Wales where—. Say we're doing an audit, we find a big issue—let's say, for example, a regularity issue—and that means that the auditor general has got to qualify his regularity opinion. Qualifying the regularity opinion is something that could be seen as criticism—it is criticism, really. It means that the body has done something that means that it's spent money irregularly.

In the case, say, of procurement, there'll also be another party, the contracting party, involved. The report may be read as criticising them as well, though usually that won't be the intention, but it could be seen as critical of them. In that kind of situation those issues might crop up just a couple of weeks before the statutory deadline. We can't just produce a regularity opinion that's qualified and criticises the body and, say, a contractor. We have to provide natural justice. We've got to give them the opportunity to comment on that report, to answer the criticism, and we've got to take account of any comments that we receive. So, we've got to firm up on our views, we've got to write them up, we've got to give the opportunity to comment, take on board the comments, finalise the report, and do all that in two weeks. It's not feasible. We've got to give at least two weeks to someone to read the report, and they'll want to take advice externally, or from internal counsel. The four-month deadline is just a recipe for creating anguish and confusion when there is a serious issue. We don't like to miss statutory deadlines by any means, but we will, as we did with NRW, prioritise natural justice over them.

11:50

If we're going to remove four months, we surely have to have some deadline. Otherwise—

You don't need a deadline, no.

There are bodies that don't have deadlines at the moment. The Higher Education Funding Council for Wales doesn't have a deadline on it. 

So, we simply say, 'After the accounts and so on are submitted'. Okay.