Oireachtas Joint and Select Committees
Wednesday, 1 October 2014
Joint Oireachtas Committee on Public Service Oversight and Petitions
Role and Functions: Office of the Ombudsman
I am pleased to welcome the Ombudsman, Mr. Peter Tyndall, who will make a presentation on the role and remit of the Office of the Ombudsman and the challenges facing his organisation. Mr. Tyndall is accompanied by Ms Bernadette McNally, director general of the Office of the Ombudsman. I thank them for forwarding their presentation, which has been circulated to members. Mr. Tyndall, who was appointed Ombudsman in 2013, previously held the post of chief executive of the Arts Council of Wales and head of education and culture for the Welsh Local Government Association. Members are keen to hear his views on the role and remit of the Ombudsman and to engage with him on the topic.
I must inform witnesses that by virtue of section 17(2)(l) of the Defamation Act, 2009 they are protected by absolute privilege in respect of the evidence they give to this committee. If they are directed by the committee to cease giving evidence in relation to a particular matter and they continue to do so, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect parliamentary practice to the effect that where possible they should not criticise or make charges against any person, persons or entity by name or in such way as to make him, her or it identifiable. I invite Mr. Tyndall to make his presentation.
Mr. Peter Tyndall:
I am grateful for the opportunity to address the committee and pleased that it has taken the initiative to investigate the development of the Ombudsman provisions in Ireland and how they might be enhanced. This is a valuable and timely initiative and I welcome the opportunity to contribute to it.
The Ombudsman is ultimately the top point of the complaints system. It is the point that a complainant reaches before going to the courts. The service that we provide is free and independent. It is not an advocacy service; it provides a balanced review of complaints. Where a complaint is judged to be justified and where there has been a failing by a public service provider, we seek to put the individual concerned back into the position he or she would have occupied if the injustice had not occurred, or achieve some other form of justice where the situation has gone beyond that kind of redress.
The defining point of the Ombudsman as a scheme for providing administrative justice is that the Ombudsman will not only seek to put things right for the individual, but also aggregate complaints, whether by looking at a series of complaints on the same topic or by finding systemic causes in individual complaints, in order to use the information drawn from complaints to improve public services. There is, therefore, a unique balance between putting things right for individuals and addressing any difficulties in public services that may lead to complaints. The Ombudsman's casebook, which I have discussed previously with the committee, issued for the first time this week. It is available on our website and it is the first of a quarterly series of reports. There has always been some focus on learning from the bigger cases and in the annual reports but otherwise they have been confined to the body and the person who made the complaint. The casebook makes the learning more widely available and we hope it will play an important contribution to improving public services in Ireland.
I have examined some of the issues arising in respect of the legislation in Ireland. The legislation was amended as recently as 2012 and in many respects it represents good international practice. As I do not wish to be too negative in this regard, I will focus on ways in which the legislation might be enhanced or extended. The committee has asked me to address the issue of recommendations. From my perspective, the democratic process is the correct way of dealing with Ombudsman recommendations in the public domain but the implied suggestion in the committee's questions about whether the current arrangements are sufficient deserves debate. For example, it was suggested that a certain level of majority might be needed in deciding whether recommendations should be implemented.
I have also examined other issues raised. Independence is important. It is also important that people can believe that their complaints will be adjudicated by an organisation that is independent of the body about which they are complaining. If they have not been able to get satisfaction, they need to be confident that the body to which they are complaining is not simply going to take the same line as the body to which the complaint pertains. It is also important that the bodies in respect of which complaints are made can believe that the office is independent and objective in its consideration.
My predecessors have spoken about the need to provide a constitutional status for the office. I believe that is important. The appointment of the Ombudsman by the President on the recommendation of the Oireachtas following a vote is a good way of securing independence but constitutional status would give the office a better standing than underpinning it by statute. However, real independence requires more than a legal status; it requires that the office has the resources needed to do its job. We all know what happened in the past when one of my predecessors, Mr. Michael Mills, was deemed by the Government to be too critical and an attempt was made to cripple the office by cutting its funding sharply. Although ultimately that was undone, given the importance of having sufficient resources to do the job properly, this should be a matter for the Oireachtas rather than the Government of the day because the decisions of the Government of the day are often within the jurisdiction of the office and while, as members will see from the casebook, as often as not we do not uphold cases, on occasions there will inevitably be tension. It is the Ombudsman's job to hold public service providers to account and this will generate tension on occasions. It is important, therefore, to separate the funding and accountability mechanisms. I have emphasised how much I value reporting to this committee. We saw the relevance of this in recent times, both with the annual report and the report, A Good Death, in respect of which the committee was able to take on board recommendations from the office and provide a route to the Oireachtas rather than just to the Government.
The committee will be aware of my concerns about the changing way in which public services are delivered and the fact that over time certain public services have gone out of the remit of the office. Interestingly, I need to update the committee on my written report because a voluntary agreement has been reached between the energy regulator and Irish Water which, curiously, went live on its website just before I arrived here. I am pleased to see that I continue to have some impact on pronouncements. As members will know, however, I do not believe a voluntary arrangement is the way to provide statutory access to redress. I do not doubt that Irish Water will face many complaints and I think it was wholly wrong to take water services out of the jurisdiction of my office at the point when complaints were going to be made about Irish Water and when there should have been access to independent redress. Other aspects of our public service, which we have discussed previously, are also out of redress. I mention two in particular, prisons and direct provision. These are areas which give rise to considerable public concern and many vulnerable individuals are caught up in those systems. Access to independent redress is required. These are oversights in our jurisdiction which I would like to be addressed.
I also have a personal concern about the fact that clinical judgments are not in my jurisdiction. People complaining about the health service believe they should not have to make two separate complaints about the same issues.
The professional bodies are not the correct ones to consider complaints about health services. They properly have a high threshold for dealing with complaints, as they consider whether someone is fit to practice. What I handle are complaints from people about the treatment they or their family members have received. They want joined-up answers. This should also be within the jurisdiction of the HSE, as it is not just the case that my office cannot provide independent redress. The HSE cannot consider complaints about clinical judgment either. This lacuna needs to be addressed. These are the issues concerning clinical judgment and jurisdiction and I have discussed the issues of accountability to the Oireachtas and funding.
I have a couple of issues with where services are privately provided. Democratic accountability in that respect does not work in the same way, as the providers are outside the direct control of the Oireachtas and Government. It would be better if bodies in receipt of substantial State funding, for example, nursing homes, came under the State's jurisdiction, which I hope will happen soon because the legislative provision exists to enable such, because I would then be able to make binding recommendations in those instances. It presents a difficulty that such bodies are not accountable to the Oireachtas like the HSE or a contracted service provider is. I would like to see a change in that respect.
I have encountered a difficulty that I have not seen in other jurisdictions, namely, the bodies in my jurisdiction must get permission to comply with my recommendations. The Ombudsman legislation should give them the explicit ability to comply without needing to ask for permission.
In the course of my work, I have been unable to gain access to the materials I need to see. The 2012 amendment Act provided a way forward in this regard, but it could be improved upon by making it absolutely clear that bodies are required to comply with my request for access to information. In no way would the information be put into the public domain. I am referring to situations in which, for example, a body states its legal advice asserts the body is right and I am wrong, but when I ask to see that advice, I am told that I cannot because it is covered by legal privilege. This type of situation is not conducive to the delivery of effective public services and redress.
I have discussed with the committee issues like having a standard approach to making complaints. At the heart of all this are the questions of how to ensure people using our public services have unhindered access to independent redress when something goes wrong and how to ensure our public services are improving and learning from their mistakes. The kind of changes I am seeking are designed to do this, namely, to give people an opportunity to have matters put right when they go wrong and to ensure our public services are learning from the mistakes identified following complaints.
I went through the casebook last night. It is a good innovation and gives a flavour of the issues that arise, particularly where there are numerous examples of the same issue. The pdf version is available for members.
Senator O'Keeffe indicated first, but I will ask a question before opening the floor to members. It relates to the standard approach to making complaints. From time to time, we as Oireachtas Members work with constituents who have had their applications to Departments rejected. Those rejections might refer to an appeals process, but they do not mention the option to apply to the Ombudsman. Mr. Tyndall has raised this issue with the committee several times. Is he in negotiations? He indicated that he had circulated recommendations on how to address this matter. Has there been a change? I have not seen a dramatic one, nor an inclination in any public body to give people the right to take their cases to the Ombudsman following refusals. The situation is changing, but people often do not realise that this is an option.
Mr. Peter Tyndall:
This matter concerns me and is one of the issues that prompted the health complaints so-called own initiative inquiry that is under way and due to report early in the new year. Having examined the low levels of complaints in some sectors, one of my concerns is something the Chairman has described, namely, people do not apply to my office because they do not know that they can. There are other reasons. For example, people can be worn down by the lengthy and convoluted complaints processes they must go through. With a standardised approach to complaints handling, one can make it a requirement to include a standard phrase in all correspondence concerning complaints. It is a matter of concern and I will examine it. Whenever we receive a complaint where the individual has not been notified of his or her entitlement to apply to the Ombudsman, we raise it with the body concerned. With so many different bodies dealing with public service complaints and so many different approaches to complaints, it is inevitable that, unless some element of standardisation is introduced, we will not get the notification as smoothly and comprehensively as we should.
Ms Bernadette McNally:
To add to what the Ombudsman has stated, our 2012 legislation introduced a new feature requiring public bodies to signpost our office. They are legally obliged to give adequate information to members of the public about how to complain. This provision is still fairly new, but we are monitoring the situation.
The range of public bodies under the Ombudsman's jurisdiction was extended significantly in recent times. The office has probably already done this, but is there a way of examining those bodies' standard rejection letters and suggesting what should be included in same, for example, signposting people directly to the Ombudsman? Every citizen who is refused something should have a right to take the route to the Ombudsman.
I thank the Ombudsman for his presentation and the casebook. On the Chair's point about standardised cases, is the Ombudsman allowed to advertise his services? By that I mean in a coherent way, not on the back of a bus.
Mr. Tyndall referred to the difficulties in respect of clinical judgment. Was he effectively calling for an ombudsman for the HSE or did I misinterpret him?
It is great to see how the cases have been laid out, for example, assistance provided, outcomes upheld and outcomes not upheld. This may be a ridiculous question, but is there a statistic to show whether more cases across Europe are upheld than not upheld? Have the processes been researched? Having read the material supplied, I can see why some people came to the Ombudsman and why, on another day, he would have upheld their complaints but that he could not in other instances because of the constraints stemming from the frameworks where their complaints started. Maybe there is no research into this matter.
Mr. Peter Tyndall:
The difficulty in benchmarking across ombudsman schemes is that everyone has a different jurisdiction and works against different legislation. In general, because an ombudsman is the final court of appeal, so to speak, for the administrative complaints process, one would expect a significant number of complaints not to be upheld.
In general, our figures in Ireland have been broadly similar to those for public service ombudsmen elsewhere when we have benchmarked against them. We tend to have higher uphold rates with private ombudsmen schemes because many commercial bodies will take a view that it is cheaper to say “No” and hope a proportion of complainants do not go to the ombudsman. Our uphold rate is on a par with most of the other public service ombudsmen with which we have compared our figures.
The reason not to uphold is often the constraints of particular legislation. If a Senator or Deputy takes a view that something is unjust but the way to change it would be to change the legislation, I would comment if I think the legislation is producing unjust outcomes and make it known to the relevant Department. On other occasions, changes are made at short notice, for example, changes to legislation governing agricultural compensation schemes. In such a case, when the Department implements the changes, while many farmers may feel they have been unjustly treated, it may be the effect of the legislation rather than anything administrative that happened.
In the past, I have advertised as an Ombudsman on the backs of buses. It can be done and nothing prevents advertising. I have taken the view that the most effective way of getting the message across is to take the opportunities presented by reports and we find, for instance, that when a report is published, as with A Good Death, and there is publicity about the Office of the Ombudsman, which we take advantage of, we see an increase in the number of complaints. With no particular trends, there has been a substantial increase in the number of complaints in the current year. There was considerable publicity associated with the annual report and A Good Death, which has helped get the message across to the public that they can complain. Senator and Deputies are also active in encouraging people to complain when they receive requests from constituents, and this is helpful.
Mr. Peter Tyndall:
I was not, and I should be very clear on it. When the HSE investigates complaints, there should be a two-stage complaint process. If the nurse or doctor who receives a complaint is unable to resolve it on the spot, there should be a single investigation conducted within the health service, or wherever else it is in the public service. If this does not resolve the matter, it should come to my office. Given that the HSE or hospital investigating a complaint cannot examine matters of clinical judgment, there is a gap in the legislation which does not exist elsewhere. The problems that it is postulated would arise should that jurisdiction change do not arise elsewhere; it does not cause the problems it is said to cause. We can examine, say, issues about nurses failing to implement a programme of medication, but the decision to put the programme in place might be a clinical judgment. This is not the kind of complaint that should go to a professional body but should be dealt with by the hospital concerned and the Ombudsman. However, the only route it can take now is through the professional body, which is inappropriate.
I welcome Mr. Tyndall and Ms McNally again. Senator O’Keeffe referred to the HSE and health. I am trying to sort out Mr. Tyndall’s statement on the need for the expansion of the Ombudsman’s function to adjudicate on clinical judgments and how it would work. If he were to examine the clinical judgment exercised by a doctor in a given case, would he have access to some sort of medical expertise or would his judgment be based purely on what the doctor has to say? I presume the lay person or the patient would have more limited access. Would the Ombudsman have a body of professionals to whom he could refer? In which other jurisdictions and for what other professions is this done? It sounds new to me.
The issue of medical cards was very topical before summer and there is a panel trying to formulate new rules to see what we can do as legislators. Mr. Tyndall flagged that considering the volume of complaints we receive, he seems to receive fewer. Has that increased because he flagged it? What information might we bring to bear when we examine the issue of eligibility for medical cards, which will happen soon? Mr. Tyndall’s predecessor pointed out the inequality in the mobility allowance schemes operated by the HSE. I am very disappointed the HSE has not produced the new scheme and I have pursued it with the previous Minister for Health, Deputy Reilly, and the new Minister, Deputy Varadkar. Although it has been ring-fenced and the HSE is not accepting new applications, there are people who deserve to be looked after because of mobility problems and disabilities but who are not. It seems to be suspended. I presume it is out of the Ombudsman’s hands, he has done his part and it is for the Minister. Has he had any complaints about inequality from individuals who cannot access the scheme because they may not be considered although there are people on the scheme?
Mr. Peter Tyndall:
I will take the theme of clinical judgment first. All the other ombudsmen on these islands who deal with health matters are able to examine matters of clinical judgment. They do so through the use of a panel of medical experts who are leading experts in their fields. There is a standing panel and in the case of a very specialist area, somebody is sought to give a judgment. I have access to this panel and use it from time to time in the course of the work here, although to a lesser extent than colleagues elsewhere would. Alongside this, each office would have more generalist practitioners coming in from time to time, for example, a practising GP or clinical nursing specialist who would come to the office once a month to examine particular complaints. The panel includes people such as leading oncologists and cardiac surgeons who would be available to examine particular cases and more generalist people to advise on how best to handle a complaint, for example, which specialist advice one needs to seek.
In my previous job, complaints about health care were principally about care and treatment in hospitals but here many of them are about funding issues and they have comprised the largest single proportion of complaints. I do not believe that health care here is so much better than elsewhere as to account for the lower level of complaints. I think it has to do with issues around how the health complaints system works and issues around the lack of capability to get individual redress on issues around clinical judgment. There is a nervousness because of the very litigious nature of some of these issues. There is a nervousness about moving forward. Many people want an explanation and want to know if something went wrong and, if so, why. They are not necessarily looking for financial compensation. They are very concerned about what has happened to themselves or their loved ones. The issues around health care are very close, very emotive for individuals and very significant in their life events. It seems to me that is a gap. There is nothing there at the moment and there should be something short of going to court. Independent redress needs to be available. That is why it is significant. It has not proved difficult to implement in other jurisdictions. There must be a mechanism around it and we should not have to invent something from scratch. This is a well-trodden path and one on which we should embark.
That sounds like a very good idea. One of the biggest problem for people where clinical judgment is involved and ascertaining whether a person was treated correctly is getting the evidence or the answers, unless one goes down the legal route, and then one is facing a stonewall. As Mr. Tyndall said people do not have answers and all kinds of issues are tied into it, so I think his suggestion would be helpful.
Mr. Peter Tyndall:
Yes, that deals with that particular matter. On the issue of medical cards, I think I underplayed the number of complaints received. When I got back to the office and checked, the number was rather more than I had suggested when I was at the committee. I will prepare a note on that. We found we had achieved resolution on the issue of the people who had complaints outstanding to us. Their cards were restored so we had a satisfactory outcome on that issue. The number of complaints coming in now, because the review has been suspended, is quite small. As the Deputy said, this has become a matter for legislators rather than for the Ombudsman. When the new arrangements are in place and are implemented, I expect we will start to see complaints again because in all of these things there tend to be winners and losers. We shall see.
I share members' concerns about the failure to introduce legislation. There are people with disabilities who would have qualified for assistance with transport but who, since the scheme was suspended, have been denied access to a scheme. That is a very unfortunate consequence of the report. I wish the committee well in its endeavours to encourage the introduction of a replacement scheme. When the report was issued and the scheme was suspended, I do not think anybody thought it would take this long to have a replacement scheme put in place. That is unfortunate.
Mr. Peter Tyndall:
Ultimately, the scheme was discriminatory, but there are people who need assistance with transport to be able to live as engaged members of their communities, to access facilities and so on. I am agnostic as to how the matter is resolved, just that it is resolved. If it requires new legislation, it should be introduced, but if it can be resolved without legislation, let it be resolved without it. The fundamental point is that it needs to be resolved.
The committee will pursue that matter. The previous Secretary General, Dr. Ambrose McLoughlin, appeared before the committee in private session to go through it in detail. No doubt we will correspond with the new Secretary General soon if there is no delivery.
I thank the Chairman, and I thank Mr. Peter Tyndall and Ms Bernadette McNally for their submission. On the issue of the remit in areas they feel should be covered, they have answered well the issue of clinical judgments on which I share their view.
The witnesses said prisons and direct provision should be covered. I agree wholeheartedly. Do the witnesses have an explanation as to why they have not been covered or what the resistance of the Government is to having the remit of the office of Ombudsman extended to cover these areas? That is inexplicable because human beings and citizens have rights. Whether they are in prison or whether they are asylum seekers, they should have rights. It is extraordinary that apparently certain categories of people are denied rights given to others. I agree wholeheartedly with the witnesses but I would be interested to hear the reason that is not happening. Have the witnesses had any communication with the Government on whether these areas should be covered and, if so, what was the response as to why these areas are treated differently.
Irish Water was mentioned. It is extraordinary that, as this new body is established and complaints inevitably arise about the way it deals with members of the public, people will not have an avenue for making complaints outside the body itself. Have the witnesses made the case that it should be included and, if so, what has been the response? It is particularly extraordinary given that Irish Water is asking for personal public service numbers, which is something that would only be done by full-blown Departments. In the latter situation, members of the public can appeal to the Ombudsman' office if there is any possible abuse of that information or the way in which a Department is dealing with a member of the public. In the case of Irish Water, this is an entity that can have access to such information. It has said it will be secure, safe and so on, but things happen. Is it fair to say that if a customer of Irish Water has a problem with how it is dealing with him or her in, say, the area of data protection, there is a big problem in not being able to make complaints to the Ombudsman or to go to the Ombudsman to have their complaint investigated.
I turn to the private bodies and the problems the Ombudsman has had with them.
Mr. Tyndall said the office's findings were not binding on them. In terms of access to information, it was also said that private bodies resist giving information where requests are made. That could apply to Irish Water as well, given that we do not know whether it is a private body or a public body, as it appears to be both. Could Mr. Tyndall outline more fully the problems encountered in getting the information required or some examples of where the Ombudsman's office requires certain powers?
In terms of streamlined complaints-----
Mr. Peter Tyndall:
The first question was about Government, the response we have had and how some of the historic anomalies arose. I have not concerned myself particularly with trying to understand how it came to pass that these things were not originally within remit. I have been concerned rather more with making the case to bring them into remit. I have made the case to Government and I have had some constructive discussions with officials. I have also met the Minister. I would not say I have encountered a closed door. I would have said we put the case on the table and we are waiting for a response. We are happy to engage with Government in moving forward on the issues.
The decision on excluding things is something to which one would probably have to look before my time to get an answer. I was not Ombudsman at the time some of those issues arose.
I look elsewhere and see that prisons and asylum and immigration issues are within the jurisdiction of the Ombudsman, not just in these islands but across-----
Mr. Peter Tyndall:
-----many other jurisdictions. I am conscious that, for example, there is a federal correction ombudsman in Canada and ombudsman offices across central and eastern Europe have prisons and immigration issues within their jurisdiction. We are out of step on those areas. There probably was a fear at the time that an ombudsman might try to put himself or herself into the position of acting as an appeal body, but that is not the role of an ombudsman; it is to look at complaints. Legitimate complaints do arise. If decisions are not taken properly, we can comment on that, but it would not be the job of an ombudsman to substitute a decision. If someone is charged with making a decision on whether someone is entitled to Irish citizenship, it is not for an ombudsman to second-guess that person, but if someone, for instance, was facing extensive delays in the process or if there were administrative failings in the way decisions were reached, those people should properly have recourse to an ombudsman, as they would in any other field. I hope those are things on which we will see a positive response from Government. In response to the committee’s questions, I have put forward some of the areas where I think there is scope for development. I hope the Government will also share the view that there is scope for development and we will see proposals coming forward to address some of the deficiencies.
In a sense I believe the position with Irish Water was an oversight in that there was not a conscious plan to change the arrangements for making complaints about the organisation. There was no plan. The reason we saw the changes made on the websites today to say one cannot complain to the energy regulator is an attempt to put in place administratively something that should have been included in the legislation. The office was not consulted about the decision to take water related complaints away from us. When water services were provided by local authorities, if somebody wanted to complain about the water service and he or she did not get a satisfactory response, he or she could have gone to the Ombudsman’s office. One day a person could complain to the Ombudsman and the next day he or she could not. I do not think anyone set out to do that but when it did happen, people thought the arrangements could be made the same way as for electricity and gas, which is that one can complain to the regulator. I strongly believe that the role of regulators is to regulate, that they have a particular relationship with the bodies they regulate, which includes such issues as price setting and looking at competition. That means there is some conflict in terms of individual redress.
Typically, in other jurisdictions there is either a specialist ombudsman to deal with the specific areas or one can complain to the public services ombudsman about them. There is an opportunity with the alternative dispute resolution, ADR, directive in Ireland to make redress for people using services, both public and private. At a seminar yesterday, a leading academic in the field, Christopher Hodges, from Oxford University made it very clear that he thought Ireland should respond to the directive by having a public service ombudsman to deal with public services and a consumer ombudsman to deal with matters other than public services. We have the opportunity to do that. We can introduce it over time. It would cost nothing to the State to introduce a consumer ombudsman because, typically, it would be paid for by a levy on the industry. Making sure that I could cover public services that have been privatised would work in the same way in the sense that it could be dealt with by levy or charge per case, but it need not necessarily be a cost to the State or to the consumer because it would be free to the consumer. The Ombudsman service does not charge for dealing with complaints.
We have an opportunity to address the issues. The Government sent the matter out for consultation and we have responded in that vein. I hope we grasp the nettle. It could be done over time; it does not all have to be done overnight. One could set up a consumer ombudsman and gradually bring bodies into its jurisdiction. To give an example that was given yesterday, in Germany it was decided to bring complaints about airlines together in a statutory system and an airline ombudsman was created. Rather surprisingly, at the front of the queue to sign up was Ryanair. What the airlines have found is that customers who get an explanation, even if their complaint is not upheld, are five times more likely to use the same airline again, and that they are saving money on litigation because complaints are being dealt with in a much more efficient and cheaper fashion. The European Union has said that if one introduces consumer ombudsman services, there are considerable savings to be made by reducing the amount of litigation and the time that companies spend dealing with dissatisfied customers. The situation presents opportunities. For my office, the sensible thing would be to put complaints on Irish Water back into the Ombudsman system and to bring in the other utilities in order that if people want to complain about a public service, they would just go to the Ombudsman. Such a system would be straightforward. I have put the case to Government and I hope it will respond positively. The opportunity is there for it to do so.
I think Irish Water is subject to the data protection regime so there is an avenue for people to complain about how their data are held. That system is in place and I hope it will provide the protection people need. In terms of getting information, my comment was more about the fact that it is not about problems that have occurred but that as private bodies come into my jurisdiction through the major funding route, I believe there will not be the same pressure on them to comply and, therefore, as with, for instance, the Financial Services Ombudsman in dealing with the banks, it has binding powers. That is the precedent that should be adopted in this instance.
The powers to obtain information could be clearer in the legislation. The 2012 Act sought to give me access to the Circuit Court. There are simpler ways of dealing with it, namely, to simply require bodies to provide information when I request it and for legal privilege not to apply so it would be possible for me to see advice that people have received. That is not the same thing as me releasing that information into the public domain because quite often in the course of investigations, I see a lot of very confidential information, for instance on health records, but would never release that into the public domain. So I think there is confusion about allowing access and the belief that allowing access would be the same as publishing which, of course it is not. I quite often have to respect the confidentiality of, for example, records on adoption or child care that I would see. I do not suggest any change to that, just that I should have access to records.
I thank Mr. Tyndall for his response. I apologise as I will need to go and speak in the Dáil shortly. Mr. Tyndall has largely answered the point about the private bodies and the difficulties he has. In his experience is it generally more difficult with private bodies?
Mr. Peter Tyndall:
They are sometimes surprised that they have to comply with requests for information that they might have. Generally once one gets over that, public bodies expect the Ombudsman to be in touch and it is a well-worn route for them. The first time I contact private bodies they can be a bit surprised and resistant, but I can usually get over that when I explain that I have the jurisdiction.
There is nothing to say on the points about a single portal and a streamlined structure for complaints, because I totally agree with Mr. Tyndall. As the Chairman suggested, people should be told by public bodies that if they are not happy with a decision in a particular area, they have a right to go to the Ombudsman and we should push that.
From Mr. Tyndall's experience this year, have any particular areas shown a surge in complaints indicating problems?
Mr. Peter Tyndall:
We looked at the statistics before coming here today. The increase in complaints is across the board and is not being driven by anything particular. With medical cards we got a blip in complaints and also in some other things. However, as far as we can see, it is across the board. There has been a slight increase in complaints about the recovery of overpayments of benefits, where there were historical overpayments and the Department got increased powers to secure repayment. We had a slight increase in complaints about that and we have had productive discussions with the Department. This is an across-the-board increase in complaints.
I think we might send the transcript of Mr. Tyndall's exchange with members today to the Minister for Public Expenditure and Reform for response. While we will complete a report on the overall observations on the various offices of ombudsmen, the issues Mr. Tyndall has raised repeatedly are standalone issues and can be dealt with as part of that ongoing process.
I think it will be necessary for the Office of the Ombudsman to update our committee regularly on progress. A range of themes are emerging: constitutional status; oversight of prisons; direct provision and the whole asylum system; the oversight of private or semi-State agencies that are delivering public services; the issue of an independent budget accountable to the Oireachtas; and standardisation of complaints. All those are key things - I am sure I have left out a few. It would be important for Mr. Tyndall to give us regular updates on progress. Obviously we will invite him to appear quite a few times a year, not just to discuss annual reports but regularly because this committee shares Mr. Tyndall's objectives on those matters.
We will send the transcript to the Minister for Public Expenditure and Reform, and we would expect him to refer the transcript to the relevant Ministers and Departments, including the Departments of Health, Justice and Equality, and the Environment, Community and Local Government, for updates on those issues and respond to the issues Mr. Tyndall has raised. Obviously we will revert back to him when we have that response.
Mr. Peter Tyndall:
We have good links with officials in the Department of Public Expenditure and Reform and we have raised many of these issues with them so they will not be surprised by what was said here today. To be fair, we have had a very good engagement with them and the Minister has encouraged them to pick up on some of these issues. As I said earlier, it is not about people saying no on these points; it is just a question of continuing to advance them. Some of these things can be achieved by administrative means and quite quickly, others will require change over time. Constitutional change, as the Chairman knows, would be a very major issue and would require a referendum, whereas some of the other items could be done tomorrow. So progress on all of them will be variable, but I am grateful to the Chairman for keeping a-----
I know it is the view of all committee members that we want to pursue any matters that Mr. Tyndall or any of the sectoral ombudsman offices are raising either on the back of reports or of their own instigation. At the very least we want to seek responses from Government and as much as possible strengthen those offices in respect of the issues they raise. It is important that these engagements are constrictive and actions follow from them. This is the first Dáil in which this committee has been in place. One of the important elements of this new committee is to ensure we, in Parliament, strengthen the role of the Ombudsman. We need to send a clear signal to Government from the Oireachtas that we expect recommendations to be implemented and, if not, clear explanations to be given as to why not.
I thank Mr. Tyndall for attending. The casebook is very welcome and gives a very good oversight of the work being done and will be very useful in future.
I wish to update Mr. Tyndall on our work on direct provision. We will have a number of hearings on that issue about extending the remit of the Ombudsman and I hope they will have it sooner rather than later. It is something we have been pushing for quite a while here. The prisons and the other sectors Mr. Tyndall mentioned should be looked at after that.
I have a question in regard to Irish Water, prisons and direct provision. Obviously the Office of the Ombudsman keeps a log of all the complaints it gets. However, does it keep a log of the ones it must turn down because they do not come under its jurisdiction and do particular themes occur there? For example, are there X number of complaints about direct provision where the Office of the Ombudsman has had to write back to people stating, "We note your complaint, but we cannot deal with it because it does not come under our remit." Is there any indication as to how many were received, etc.? The same would apply to Irish Water and the prison system. If that information was available, it might be useful.
The issue of clinical judgment was highlighted on a recent "Prime Time" special programme. I am subject to correction on this. It was about a young child, Ava Conroy, from Connemara. I think it related to the Medical Council. It was the timing of an issue and the way it was being dealt with prior to a court case being heard. That highlighted the issue of clinical judgment Mr. Tyndall mentioned.
The question also arises of these professional organisations adjudicating on themselves. I have heard of cases involving the Law Society adjudicating on its own members and complaints about the way matters were handled. That is another area in which an Ombudsman might play a role. In respect of the Medical Council it was felt, rightly or wrongly, that medical professionals were adjudicating on themselves and closing ranks when they did not want cases to proceed. That was highlighted in the "Prime Time" programme.
In respect of private institutions, Mr. Tyndall referred to nursing homes in particular. Is there any access to his office for people who want to complain about a nursing home? A number of cases have arisen involving difficulties with private nursing homes. HIQA plays a clinical role in this regard but does any of the ombudsman offices have remit over complaints brought by individuals or citizens?
Mr. Tyndall suggested that permission to comply be sought. In his view, how exactly should that change? I recognise that as Ombudsman he does not want to come in here to say that the Government needs to give him more resources but are there particular areas in which he feels constrained due to a lack of resources and, if he had more resources, where would he invest them?
I commend him on the office's outreach efforts. I have referred people to the outreach service when it came to Galway and they have enjoyed good engagement with the office. Does he have any thought on how outreach could be further developed? In regard to this committee and the fact that we hear petitions, does he see any crossover between our respective roles and is there anything we need to clarify in the way we do our work so that there is no grey area in what we are trying to do and that the individuals seeking redress are put first? I do not want them to be required to go to the Ombudsman and then to this committee, or sent from Billy to Jack, which is what people fear might happen.
Ms Bernadette McNally:
Traditionally over the years we have monitored people who have come to us and to whom we were unable to provide a service. We direct them somewhere else if there is somewhere else but if they have nowhere else to go, we note that. This has formed the basis of speeches over the years in which we have asked for additional bodies to come under our jurisdiction. Over the years, many of the bodies that were brought under our jurisdiction under the 2012 Act were the subject of complaints with which we were not able to help people. We continue to monitor such cases and we will be reporting on them in our annual reports. We will, therefore, have a detailed breakdown on them which we can share with the committee at any stage.
Mr. Peter Tyndall:
Two issues arise in regard to the Medical Council and the Law Society. Most complaints about professionals such as doctors, solicitors and nurses do not speak to their ability to continue to practice. The sanctions available to the professional bodies are the nuclear option. Somebody could be suspended or struck off. That needs to exist because occasionally somebody will be a danger to others or a solicitor may use clients' resources inappropriately. It is necessary to have a body which can determine whether an individual continues to be fit to practise and, if he or she does something badly wrong, investigates that. However, that is the wrong option for most complaints. An ombudsman is the better place to bring most complaints about doctors, nurses or solicitors going about their work.
In recent years, reforms have been made to professional bodies to ensure that the majority of people on boards are independent. This is a useful safeguard. Changes were contemplated to the way in which the legal profession was to be regulated but they have not been implemented. In regard to whether we could establish a legal ombudsman, such roles exist elsewhere or some other means could be provided to allow people to get redress. People want redress that falls short of a professional standards issue. It might simply be a complaint about a solicitor who made a mistake which cost the client money or deprived him or her of an advantage. An ombudsman is well placed to deal with those matters outside of the courts and to get a resolution or explanation for people. That is a possible route forward. The kind of changes that are being put in place to ensure a majority of independent professionals on boards is important and over time we will monitor how these changes are delivered.
Mr. Peter Tyndall:
An ombudsman does not generally consider whether to take away a doctor's right to practise but simply asks whether he or she got it wrong in that instance, what needs to be done for the individual concerned and whether lessons can be learned. The two elements complement each other; they are not in competition. At present we only have one element and I think we need both elements. It is not a question of reducing the role of the Medical Council. It plays a vital role, but it is a different one.
If nursing homes are contracted by the HSE they are within jurisdiction. The issue arises where people are paying for their own care while also getting funding from the State. That can be brought into place under the 2012 Act. I am looking forward to seeing that happen. There could be three patients in the same nursing home: one of whom is a wholly private patient who has no recourse to anyone at present; a second who is getting funding from the HSE towards the cost of the accommodation and who does not have recourse to the Ombudsman at present; and a third whose accommodation is provided under a contract with the HSE and who has recourse to the Ombudsman.
Ms Bernadette McNally:
We regularly receive complaints about the service provided by a private nursing home and we have to say "No" to those people. Mr. Tyndall has raised the issue with the Department of Public Expenditure and Reform and there is provision in the 2012 Act for the Minister to allow us to follow significant funding. The fair deal funding, or the nursing home support scheme as it is properly called, involves a substantial amount of public funding which the Ombudsman believes we should follow. We will be pursuing the matter further with the Department.
Mr. Peter Tyndall:
I understand the Department proposes in its business plan to introduce some of the changes permitted in the 2012 Act in terms of bringing bodies into jurisdiction. We will be asking it to consider that as one of the priorities for introducing changes. This issue is linked to the question of resources. We did quite well in terms of reducing the backlog by introducing new processes and systems but due to the increase in demand we are now struggling. We were pleased to get additional resources on the Information Commissioner side because that has had an impact in helping us to address backlogs in that area, but I am starting to worry about our capacity on the Ombudsman side to deal with complaints as their number increases. We have had a blip in that a number of key individuals have retired and it takes time to recruit replacements and get them up to speed. We are struggling somewhat at present but we are hopeful that when we fill the posts we will be able to get back onto an even keel. In terms of getting rid of the backlog, we have made a case for more resources but I understand that everybody is making similar cases and we try to manage well with what we have.
We are conscious of a limitation and what difference it makes in practice. We have taken on the own-initiative investigation on health complaints and there are other own-initiative investigations we would like to carry out. However, we know we only have limited resources and such investigations will have to wait their turn. We would like to do some of them sooner rather than later but we cannot.
Mr. Peter Tyndall:
Outreach development and petitions were mentioned by the Senator. On the outreach front, the Senator is aware of regular trips to citizen information centres, and we are looking at outreach projects at specific events like fairs aimed at older people. We have specifically had a presence where we think we might reach people who might not know about us otherwise. That is proving very effective. I intend to participate in some of the outreach events by attending events where we can have a presence in order to bring more publicity to them. We are also examining having outreach events outside regular events in order to visit other centres. As the Senator mentioned, some people are happy to contact us via the website or e-mail, whereas others prefer to talk to somebody. We are happy to accommodate that.
Mr. Peter Tyndall:
The Senator asked about the role of the petitions committee. Earlier, we discussed how some complaints are related to legislation and are not in my remit. In other words, it is not that a person has suffered an injustice because a Department or council has done something wrong but rather it arises from legislation. The committee could be very useful in dealing with those through petitions in what would be a complementary process. We have not seen any problems with overlapping. In general, the committee is good at signposting to us if an issue is relevant to the Ombudsman.
We will deal with those as they come in. On behalf of the committee I thank Mr. Tyndall and Ms McNally for coming before us today. We will send a transcript of this meeting to the Minister for Public Expenditure and Reform to seek a response from him and his colleagues in Cabinet, where issues are relevant to Departments. Next Wednesday we will deal with petitions.