I’m calling for a full review of the powers and the efficacy of the Scottish Public Services Ombudsman, along with the legislation which underpins the organisation.
The SPSO is a toothless organisation which seems to pander to public services rather than hold them to account, taking years to investigate issues, failing miserably to actually deliver justice and laughed at by public institutions. It’s time that changed.
Imagine you are a patient of an NHS board, something substantive has happened and you want answers. Your first port of call is to the board itself and so you write a formal letter of complaint. The NHS CHP (National NHS Complaints Handling Process) kicks into effect.
There are two levels at which your complaint can be categorised. Level 1 which has a time limit of 7 working days, and Level 2 which has a time limit of 20 working days. In reality this works out at 10 days and a month, respectively.
The levels are based on the complexity of the case and straight away, if your complaint is one that would see the board exposed to liability, you will notice two major pitfalls.
The first is that these time limits are not statutory. If your complaint is complex, it should be designated as level 2 giving the board a month to respond, but this is not what happens. Boards take advantage of a loophole, first designating your complaint at level 1. At the end of the 10 days, they then write to you and re-designate it to level 2. You’d think that the 10 days would be deducted from the month right? You’d be wrong!
The way the policy is written, the board have now wasted 10 days and have now added another month to your timescale. Nearly 40 days go by before you should expect a reply; and when that reply comes, the board will live up to its legal duty of candour and tell you what happened right? Likely not!
One of two things will happen at the end of the 40 days. Either you will get a response that tells you nothing, or you will get a “sorry we can’t meet the timescale”. The timescales are not statutory, there is no enforcement of them, which means the board can now simply write to you and tell you that they can’t comply with the timescale and extend another 20 working days. Then they can do it again and again.
Eventually you might get a response but it wont answer any of your questions. It will, however, tell you that you have the right to escalate to the SPSO.
But buyer beware as they say because now a few things will happen. You will find in matters of complex issues (which is dangerous when the matter is also concerning your health) the SPSO can take up to 3 years to render its opinion. After a good number of months, you might be tempted to contact your MSP for assistance, but you’re going to find there is a cost to you having had the audacity to put your faith in the system.
Your MSP is likely going to write back to you and tell you that you’ve lost the right to their advocacy with your case because it is now with the SPSO. This is the third pitfall. Pay special attention to this because what comes next is important and MSP’s involvement will be mentioned again later in this article.
So now you are stuck in the SPSO’s procedure. In serious matters of liability, you will find the board is less than cooperative with the SPSO, information conveniently is not forwarded on, which brings us to the fourth pitfall of the system, 3 years!
The fifth pitfall is the fact that the entire process is completely reliant on your medical files in the possession of the board. It is possible you will find things added or removed after the complaint.
3 Years? What’s that all about then? Well, 3 years in Scotland is a very important number. You see, in Scotland you have 3 years in which to raise legal action against a board “from the point at which you first became aware of the failure”. And this brings us to pitfall number 6. NHS Boards know this and so they deliberately (when there is legal liability) try to delay things until you hit the 3 year mark from the start of your complaint. Mainly because they know that the SPSO isn’t really going to hold them to account and that you will lose the right to take legal action.
Even if the SPSO rules before the end of the 3-year period, what you’re going to find is boards failing to comply with the ruling and try to run the clock out.
The 3-year time limit can be put mutually aside by both parties to protect the right of the patient to legal action if the SPSO fails, but boards will reject this every time.
Even if you wait until the very last day of the 3 year time limit to file court papers, you are going to find something else happen. The board are then going to cite “legal prejudice” as grounds for not complying with the SPSO. That’s right! A case which they themselves created, is now going to be used with a weapon to hit you with, and they’re going to use your own tax money to do it.
But what about the health secretary and your MSP’s? Well, there is a process for them to be able to become involved again. It’s called a special report to parliament. Unfortunately, the SPSO has no set procedure for implementing one. The legislation which underpins a special report is vague and deliberately ambigious. The ombudsman “may” lay a special report before parliament.
In otherwords, even if a board is non compliant with an SPSO ruling for years, there is no statutory provision to enforce it. Why? Because the special report process means that the SPSO’s department ends up under the scrutiny of politicians. The case is presented to all politicians at Holyrood who will no doubt see the failure in being able to enforce its own rules as blood in the water, and so they will use it as a political football to throw mud at each other. So there’s an incentive for the SPSO just to never issue a special report.
As for the health secretary, the responses you will receive are that she might become involved if the SPSO issues a special report. However, the health secretary knows that in the 20 year history of the SPSO, not a single ombudsman has ever issued a special report. No special report, no advocacy from MSP’s – and those who are charged with overseeing the public institution are able to hide behind there desk.
And many of you may say this is a hypothetical, but it is not. This is a real world example of exactly what I have witnessed with others – and it has happened to me.
In 2017 I was denied surgery on a technicality to correct medical issues acquired as a result of the local boards negligence over a span of a decade. For months the board failed to respond to the complaint, when they did, it wasn’t a response at all. 3 months had passed. It then took another 2 years and 3 months for the SPSO to render an opinion, by which time, their ruling conclusions were out of date. Their ruling was that I should have been given a second opinion as requested in Feb 2017 (which they offered, then withdrew when I made a complaint). The board then failed to comply with that ruling.
We wrote in the months prior to hitting the 3-year mark, to have the 3-year time limit on legal action put aside to allow the SPSO to monitor compliance, the Central Legal Office on behalf of the board refused, proving they were trying to kick it over the 3-year mark. Papers had to be filed with the court 3 days before the end of the 3-year mark. The board then used that case to cite legal prejudice and told the SPSO to take a running jump.
The problem is that there was no legal prejudice, the board had accepted the SPSO’s opinion it had just not complied with it. Fast forward to 2021 and after numerous emails to the health secretary to intervene (when she kept repeating “special report”) and dodging her responsibilities, and MSP’s also saying they couldn’t get involved because there was no special report, everything remained stagnant.
Despite repeated requests to the ombudsman to issue a special report she continually refused. She consistently refused based on the “may” in the legislation, that she “may” issue a special report. She consistently failed to answer what the process was that triggered the special report process – because there is none.
It was one of her predecessors before a holyrood committee who spelled out there is no incentive for the SPSO to issue such a report because it would mean scrutiny from politicians and risk their department coming under scrutiny.
There were numerous issues with respect to the so-called “second opinion” mandated by the SPSO, including two occassions where it collapsed because the senior members of the board just decided not to include information in the referral that was pertinent to the case in order to garner a second opinion which was conducive to their pre-written narrative. Administrators putting a patients health secondary to their own potential liability.
The board were called out on that substantively poor referral, but a year and a half later, just to close their books because the SPSO’s stats were being affected (despite the ombudsman herself calling out the poor quality of the referral) the SPSO allowed the board in question to submit the same faulty referral information, deny me the right to an appointment, then they simply closed the file.
You’ll find no answers with the SPSO
This all seems bad, until you realise that the same individuals involved at board level were the same individuals who were involved in another very serious situation with my family. My mother was admitted to hospital with sepsis, she has M.S. They diagnosed her with bladder cancer. They prepared her for surgery then called it off last minute. I sought an independent second opinion from lothian (owing to my own experiences which were running parralel – the SPSO had not yet rendered its opinion) based on feedback from whistleblowers. The board concerned was asked to stay out of it – they interjected anyway and the result was no bedside review being conducted. It took five months of asking for two tests and an all out war just to get a proper second opinion for my mother and the end result was it going to NHS GGC after 5 months of fighting for it. It transpired that the surgery was unecessary because they had accidentally misdiagnosed her with cancer.
And this leads us to the final pitfall in the national policy – People who have serious conflicts and have had informed consent withdrawn from them seem to simply ignore this fundamental rule of medicine and just do whatever they want because they have previously been embarrassed (and rightly so because a misdiagnosis of cancer is serious).
I tell this personal part of the story because for years I have been assisting people with drafting complaints to seek answers through the SPSO. I am yet to meet a person who has actually recieved the openness, fairness and transparency from the SPSO that the policy was proclaimed to deliver when it was changed in 2017 by Shona Robison et al. My own personal experiences with the poor quality of the SPSO are just that, a clear insight into how bad an organisation it actually is. Add to that others I have helped and the picture isn’t pretty.
Just look at trustpilot and it will tell you all you need to know.
The SPSO is underfunded, disfunctional, riddled with pitfalls and conciously seems to pander to the public services it is entrusted to hold to account. When a public service can accept a ruling from the SPSO and then just not bother to comply with it for a year and a half, resulting in the SPSO closing the books because it just doesn’t want to have a case ongoing for so long, something is seriously wrong. And when an ombudsman is actively incentivised not to hold a public service to account because it might be politically inconvenient, something is wrong. When a person fighting for surgery to benefit their health has to wait years and still gets no transparency, something is wrong. When a public service simply laughs at what is, for all intents and purposes, a quasi-judicial regulator of its institution, something is desperately wrong.
This is happening to hundreds of people. The only way to ensure progress and advancement in public services is to ensure accountability, to learn from those mistakes and to remediate them. However, the current system works on a process of “Meh! Mibye Aye! Mibye Naw!” and that delivers for nobody.
I am calling for a systematic overhaul of the National Complaints Policy including:
(1) Statutory timescales for public services to respond to a complaint where the public service must designate a complaint as either Level 1 OR level 2.
(2) A ban on designating complaints as Level 1 and then upgrading to level 2 in order to be able to take advantage of getting to bite both apples and have a 40 day time limit.
(3) An automatic right of complainants to escalate their complaint to the SPSO if public services fail to respond in those statutory timescales.
(4) A statutory timescale for the SPSO to deliver their opinion.
(5) Increased funding to the SPSO to deliver on those statutory timescales.
(6) An automatic right of a complainant to demand a “special report” to parliament where a public service has failed to comply with an SPSO opinion for 90 days over the timelimit set by the SPSO.
(7) A clear policy on the implementation of special reports.
(8) Changing legislation with respect to the 3-year time limit for litigation from the “point at which the error was first known” to the “point at which the SPSO delivers its second opinion” where the complainant has shown good faith for following the national complaints handling policies to seek remediation, rather than just jumping straight to legal action.
(9) A statutory provision that any person named in a complaint to the SPSO at a public service is barred from participating in that complaints process or from any post-SPSO opinion mandates from the SPSO.
(10) Removing the block on MSP’s from being able to advocate for their constituents and involve themselves in a case just because it is with the SPSO.
(11) Checks and balances after an SPSO opinion where any paperwork concerned with the implementation of its ruling must be vetted to make sure that the public service is not trying to undermine the complainant by selectively removing information pertinent to the matter, or altering it in such a way as to serve its own needs over that of the complainant who has already been subjected to a failure at their hands.
(12) A change from “opinions” to “rulings” in terms of the SPSO’s decisions, the second which the SPSO can enforce via the court.
(13) Clear and unoquivical legislation which determines when the SPSO MUST move to another procedure such as enforcement or a special report.
(14) A league table of public services and complaints lodged with the SPSO, including timescales with regards to the time taken for the SPSO to deal with complaints.
(15) A special procedure for MSP’s to refer a case which they believe is being handled inappropriately, directly to parliament.