This is to supplement comments in the above letter from Accountability Scotland to the Scottish Parliamentary Corporate Body. Roman numerals in the letter refer to items I-XI below.
I - About ‘Accountability Scotland’
Accountability Scotland is a democratic organization formed by people from all walks of life who, due to their experience with the SPSO, have come together to campaign for transparent public accountability in Scottish governance. As of September 2011 we have a published constitution and an elected committee. Its members are highly qualified in various fields and include university research scientists with doctorates and many published papers and books, a medical doctor, a researcher and co-coordinator in international public health projects across Europe and US, a civil engineer, electronics engineer, head teacher, contract advisor (construction, engineering, building), a voice dialogue facilitator, and specialists in estate management, law and legal practice. The committee's expertise covers agriculture, business, biological science, occupational psychology and work-stress, campaigning, politics, care work, software development, statistics, journalism, negotiation, commerce, engineering, tourist board directorship, experience in assisting complaints to local authorities and the SPSO and in drafting petitions to the Scottish Parliament.
II - Opinion of an SPCB’s Independent Assessor
Dr Bernard Kingston, the SPCB’s Independent Assessor, was involved in the re-appointment of Professor Alice Brown. He wrote:-
“In addition, this re-appointing process has highlighted, once again, my concern regarding the absence of regular formal appraisals of Crown appointees nominated by The Parliament.
This runs counter to good practice which requires that public bodies must have in place regular and transparent performance assessment procedures to provide necessary and robust evidence when considering re-appointments.
I recognize the argument put that it is difficult to independently investigate the independent investigator but I do not accept that this is insurmountable. I strongly recommend, therefore, that The Parliament continues to give urgent consideration to this matter for these and similar appointments.
That said, I well recognise that this is new territory for us all and one that requires in-depth consideration, wide consultation and due diligence and sensitivity to get it right. A number of other good practice elements emerged during this re-appointments process and I will write an additional note on these for future consideration and action.”
Mr Murray Tosh was the independent Assessor for Jim Martin. He only looked at governance issues, not at the quality of case outcomes.
III - Inadequate investigation of a Body under Jurisdiction
Case 201002536: Greater Glasgow and Clyde NHS Board. (Reported 20 August 2011)
The essence of this case in the present context is (1) that it is a body under SPSO jurisdiction that is aggrieved (and seriously affected), not a complainant, (2) that the evidence, as reported, is inconclusive and (3) that the general practitioner involved was not interviewed either by the SPSO or by the SPSO’s medical adviser appointed to the case. The SPSO has confirmed that the SPSO did not interview the GP and that it is not the SPSO’s routine practice to conduct interviews.
The latter contrasts with the police practice of always conducting interviews.
Details follow, but, for the sake of Mrs C, we would not wish publicity to be given to this case.
The complainant (Mrs C) raised concerns about the care and treatment provided by a GP from the out-of-hours service to her husband on 2 August 2010. She complained that the GP failed to diagnose Mr C with ischaemic heart disease and admit him to hospital. Mr C died of a heart attack several hours after the GP's visit.
The complaint, that the Board failed to provide reasonable care and treatment to Mr C on 2 August 2010, was upheld.
The SPSO’s complaints reviewer looked at clinical records and the complaint correspondence from the Board, obtaining advice from a retired GP who is unlikely to have experience of the out-of-hours service (the Adviser) and interviewing Mrs C by telephone. The complaints reviewer also listened to the recording of the telephone call Mrs C made to NHS 24.
Quoting the Report:
“The Board responded formally to Mrs C's complaint on 31 August 2010. The Board said that having looked at the evidence, they were in no doubt that the GP had attended Mr C in good time, took a full history, carried out an appropriate clinical examination and formulated a management plan based on his carefully considered clinical assessment. Mr C had presented with symptoms which only with the benefit of hindsight were indicative of a cardiac problem. The Board said that having discussed the matter with the GP, they were certain he took his time and used his skill and history taking to try to determine whether Mr C's symptoms were serious and life-threatening. The GP's clinical impression was that Mr C was well and did not have any serious underlying condition, which was reinforced by his examination. The Board said that had the GP suspected cardiac pain, he would have admitted Mr C immediately to hospital and had he done so, the outcome may have been different. Despite the GP's best efforts, he did not predict such a tragic outcome. The Board apologised that the GP was unable to make a diagnosis that would have led to Mr C's immediate admission to hospital.”
The Ombudsman wrote:
“I have decided that there were failures in the care and treatment provided to Mr C by the GP. In all the circumstances, I uphold the complaint.“
IV - Examples of positive appraisal by Jim Martin
Positive appraisal is evident in the Annual Report, as pointed out in our Report C. Notable are the whole-page glowing testimonials that fail to reflect the balance of opinion demonstrated in the Craigforth reports.
Here are further examples of positive spin, in a letter to Fergus Cochrane, Clerk to the Public Petitions Committee (1 October 2010). The relevant passage is followed by our numbered comments, of which the third is especially notable. (The underlining is ours.)
“What mechanisms do you have in place to examine public dissatisfaction at the SPSO in managing complaints raised by members of the public?
I would contest the implication in the question that there is widespread public dissatisfaction with the SPSO in managing complaints raised by members of the public. There is, of course, some dissatisfaction, but it is by a minority and is entirely in keeping with the nature of our business. It is true of all Ombudsman services that some complainants, in particular those who have not had their grievance upheld, will criticise the body for making a decision that was not in their favour.
The SPSO actively seeks the views of all the people who use its service through our satisfaction surveys. We openly publicise their feedback on our website, and use their views to inform improvements to our service.
Individuals who are unhappy with the outcome of their complaint have the opportunity to express their dissatisfaction through our challenge to a decision process. The final external step of that process is judicial review.“
- “-- some dissatisfaction, but it is by a minority”. This is literally true, but the situation can be expressed less positively. Thus the Craigforth statistics (2010) indicate no more than 50% satisfaction. This must mean some kind of general satisfaction, because only 41% of respondents were satisfied with the thoroughness of the SPSO’s examination of their complaints.
- “We openly publicise their feedback on our website”. This is true up to a point, but the most informative part of the feedback (specific comment) is withheld (see Report A).
- “Individuals who are unhappy with the outcome of their complaint have the opportunity to express their dissatisfaction through our challenge to a decision process.”
This misrepresents the true situation. The grounds for review are very limited (see item V below). Complainants do try to challenge the decision process on other grounds, but are then just told that that is impermissible. The SPSO publishes Jim Martin’s replies on the website, but with all potentially interesting detail redacted.
- “The final external step of that process is judicial review“. This bald statement conveys the impression that judicial reviews are a useful back-up, but so far there has only been one judicial review (see item VI below).
V - Limitations set on SPSO’s reviewing of disputed decisions
The circumstance under which a complainant can request a review of a disputed decision are clearly stated on the SPSO website:
Asking for a review
The grounds on which you can ask for a review are limited, you can only ask for a review if you consider that:
- we made our decision based on important evidence that contained facts that were not accurate, and you can show this using readily available information.
- you have new and relevant information that was not previously available and which affects the decision we made. (When sending ‘new and relevant information’ to us, please tell us if the body you complained about has been given the opportunity to consider the information and if possible, please include the organisation’s updated response to that).
We will not accept a request for a review just because you disagree with the outcome of your complaint.
VI. Judicial reviews
These are too costly and difficult for most dissatisfied complainants.
In 2007 the SPSO faced its only completed judicial review. Argyll and Bute Council were contesting a decision of the Ombudsman. The judicial review ruled in favour of the local authority and against the SPSO.
Recently a second judicial review has been initiated. See “Draft judicial review of the Scottish Public Services ombudsman’s decision in Scottish Enterprise fraud case” (24 June 2011).”
VII. Evidence to the review of SPCB supported bodies committee from Murdo Fraser MSP (RSSB27, 16 January 2009)
Here are some excerpts from this document:
“In my role as an MSP, I have worked with a number of constituents on their cases that have been considered or investigated by the SPSO office. In the cases that I have been involved in, there seems to be several similar criticisms that my constituents have noted regarding their case. These can be summarised as follows:
- the length of time taken to decide whether or not to take the complaint to an investigation;
- the length of time taken to undertake the investigation;
- the quality of the investigation;
- the quality of the final report;
- the lack of dialogue and opportunity to change the draft report once it has been completed; and
- the way that the complaint was generally handled by the SPSO office.
“These underlying problems of the SPSO office in relation to a complainant’s case must be resolved in order to have an effective Ombudsman.
"Another issue is lack of accountability. I believe that there should be a more systematic way of ensuring that the Ombudsman is held to account more regularly by the Parliament. I understand that the SPSO has to be independent of Parliament. However, apart from judicial review, there is no way for a complainant to call into account the work of the SPSO. Stronger accountability is required so that MSPs can question any reports that constituents have concerns with and can also question the conduct of the office.
“There is a real concern that much of the investigation work by the SPSO is based on information handed to them by the complainant and the body that has a complaint lodged against them. This information is useful for a primary stage, but there seems to be a lack of going out in the field and interviewing organisations in order to develop and question the information given to them. Investigations can not just be a ‘paper-trail’.
“In one example of a complaint that I helped work on, after the draft report was submitted by the SPSO, it was clear that there were some basic inaccuracies as well as some important and quite central information not included. There were basic errors and the complainant was never given an explanation for the conclusions. Furthermore, there were some statements in the report that appeared to conflict with other statements in the same report. It is quite right that a complainant will not accept or be happy with a report if the report published gives the instant impression that the issue has not been fully investigated or understood.”
VIII. Comment from an English Ombudsman on an SPSO case
Here is a comment on an outstanding test file sent by Jim Martin to an English counterpart, Jerry White, a Local Government Ombudsman (29 September 2009): The report was laid before Parliament.
“I conclude that the SPSO’s handling of the complaint was characterised by very considerable delay and confusion. Bluntly, it is the worst case of complaint handling by an Ombudsman’s office that I have seen.”
IX. Criticism of Jim Martin as Police Complaints Commissioner for Scotland
In 2008 the SPSO investigated a complaint against Jim Martin as Police Complaints Commissioner for Scotland (Case 200702044). The complaint was not upheld, but the Ombudsman wrote.
“However I am concerned that given the sequence of events described above, at the time Mr C made his complaint to the PCCS, he could reasonably have expected to have been given a draft report upon which to comment. This did not happen and Mr C did not have the opportunity to bring his concerns to the PCCS' attention before publication. I criticise the fact that he was not made aware of the change in the PCCS’s policy in this respect and also of the fact that the related advice leaflet was only updated following this Office’s enquiries in 2008.”
X - Inadequate criteria for the-appointment of Jim Martin
Here is an excerpt from the paper prepared by the SPCB to inform debate on consideration of the SPSO, Jim Martin for reappointment.
“21. In keeping with the criteria used for the independent evaluation mentioned above, the panel agreed that the Ombudsman should be tested at interview on the following criteria and scored against each of them:
- Managing the day to day running of the office;
- Fulfilling the functions of the post;
- Leading any change programme impacting on the Ombudsman’s office in a positive and supportive way;
- Leadership and motivation skills
- Forward planning; and
- There was apparently no consideration of the adequacy and justice of the Ombudsman’s rulings.
XI - Comparison with other Public Sector Bodies in Scotland
Despite the absence of comparable bodies in Scotland, many aspects of the SPSO’s work are replicated in other organisations. For example, Audit Scotland undertakes investigations, but unlike the SPSO uses the Quality Framework to monitor the quality of its decisions.
This framework is used extensively across the public sector, yet the SPSO, who claim to share the learning from their work in order to improve the delivery of public services in Scotland, don’t use it and appear unwilling or unable to learn from others.
Note that the framework includes post project appraisal for quality, whereas the SPSO’s Annual Report argues against having a ‘safety net’ of review and appeal (see Report C).