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Address to the Consumer Consultation Conference, (14 October 2003) (14.10.2003)

Address by Ms Emily O'Reilly (Ombudsman and Information Commissioner) at Consumer Consultation Conference

Introduction

I was very pleased to be invited by Pat Harvey to make the keynote address at this conference on consumer consultation. I know that the North Western Health Board has been to the forefront in piloting initiatives on consumer involvement and I have read with great interest the Board's interim report on the implementation of consumer panels.

The Board's decision to establish customer panels could be described as a very brave one. But not, I hasten to add, in the sense that Sir Humphrey might have referred to any decision of his unfortunate Minister! Rather, I see it as a very worthwhile initiative in consultation and communication which gives practical expression to the principles of quality customer service.

Equally, there is no gain without pain and I note from the recommendations in the interim report that a lot of problems - some totally unexpected - arose during the pilot phase of the project. But, I sincerely hope that the Board will be able to overcome these difficulties and further refine its approach to consumer consultation.

I said that this was an exercise in consultation and communication. But I suppose we constantly need to remind ourselves that this is a two way process. Until recently, the emphasis under the public service modernisation programme had been on providing members of the public with more information on services. And, indeed, the introduction of freedom of information legislation has placed new obligations on public bodies to release of information to requesters.

Consumer Consultation is one method of creating a two way flow of information. Fostering a positive and open attitude to complaint handling is another. These are the two issues which I want to address in my presentation. But given my statutory remit, I hope you will forgive me if I concentrate particularly on effective complaint handling. I will also say a few words about how my Office can aid the consultation process by giving feedback on complaints to public bodies.

Consumer Consultation

Information giving from the perspective of the client is addressed in one of the twelve Principles of Quantity Customer Service viz;

"In their dealings with the public, civil service departments and public service offices will provide a structured approach to meaningful consultation with, and participation by, the customer in relation to the development, delivery and review of services".

The main benefits of this consultation process are:

• it helps public bodies to better plan services to give customers what they want and expect;
• it helps public bodies to prioritise their services and make better use of resources and
• it helps build a rapport between public bodies and their customers.

As Ombudsman I have a particular interest in the extent to which this process of consultation can lead to improvements in service delivery. Specifically, in those cases where things do go wrong, to what extent does the consultation process facilitate customers in receiving a positive outcome to their complaints' In other words, is it reasonable to expect that the use of customer panels will lead to more effective complaints handling within public bodies'

Effective Complaint Handling

What do complainants want'

Let me put this issue in perspective. Figures quoted by the Irish Hospital Consultants Association revealed that in the year 2000, almost 900,000 in-patients and day-patients passed through the health system . Added to this would be the number attending accident and emergency departments and out-patient clinics. No matter what way you look at these figures they amount to several million interactions between the public and the health system in any given year. Whilst I have no equivalent statistics for Ireland, data from the USA, Australia and the UK indicate that at least 4% of all admissions to hospitals suffer an adverse effect at some point during their stay. Even a minimum figure of 1% reflects a very significant source of complaint.

Patients and their carers, however, experience a number of difficulties in complaining. I think that it is commonly accepted that the majority of grievances about medical services go unvoiced. Service users may prefer to put negative experiences behind them or avoid confrontation, but for others it is structural inequalities in the user-provider relationship which discourages them from pursuing a grievance. Patients tend not to make formal complaints, particularly when they have a long-term relationship with a service provider. I think that the results of a survey conducted in 2001 by the Irish Society for Quality in Healthcare is of interest in this regard. 92 % of those surveyed (recent in-patients) did not complain. 74% were unaware of the existence of a complaint procedure. Of those who did complain 66% considered that their complaint had not been acted upon or rectified. Another finding is highly significant in my opinion; 79% would complain in the first instance to the Ward Sister/Nurse and then on a sliding scale of 6% Matron, 5% Consultant, 3% Non consultant, 3% Manager and 4% Other. This is very important information in the context of local resolution and training. Reluctance to complain may be seen as a good thing by service providers but problems may remain concealed and overall dissatisfaction with service may intensify as a result.

Complainants have a variety of expectations in making their grievances known. Even on the basis of my very limited experience as Ombudsman, I am struck by how few complainants are motivated by prejudice or malice. Some complainants may be very difficult, sometimes because their complaints are made out of feelings of grief or guilt. This does not mean that their complaints are not justified, but it can mean that it may be very difficult to satisfy their expectations. However, they all want to be taken seriously, to have their views - and the fact that they had reason to complain - to be acknowledged and they want remedial action. It is my experience that complainants rarely seek financial compensation in the first instance, nor do they seek disciplinary action against staff. In their calls for redress they place emphasis on 'soft' remedies such as apologies, explanations and future prevention rather than 'hard' remedies like compensation. My Office never has had a complaint presented to it which escalated into a legal claim or a request for disciplinary action.

The importance of good communications

Patients, in general, are vulnerable while in hospital. They may be disoriented, they may be frightened, they may be dependent on others to assist with basic functions for the first time in their adult lives. In other words, they have had to surrender control to the medical system whose language they may not understand and that makes them impatient and perhaps a little less receptive than normal. Their relatives will also be on edge and will be resisting their loss of control over the welfare of their loved one.

At the same time hospital professionals are working with many constraints on their priorities and energy; they are also operating in an environment which is familiar to them in terms of its procedures and language. Medical and nursing staff may have their sensibilities blunted to some extent by having to deal with thousands of patients. However, what is humdrum and shorthand to them is unique to the patient, and they do represent a caring profession.

In such conditions it is very important for all health professionals to appreciate the patient's perspective, to make all exchanges as sensitive, meaningful and humane as possible and to understand that effective communication means more than simply saying something to somebody. Failure or inability to communicate (and allowance must be made for the capacity of the patient to hear) or the method by which something is communicated (and there are non-verbal dimensions) can lead to upset and misunderstanding and can be the reason why a complaint is made. It can also be some time before the consequences of some action or inaction in this delicate area become apparent.

Complaints from individuals following an unexpected death in a hospital have unique characteristics. The psychology of grief following death or serious incapacity will involve, at some point, an apportionment of blame in some direction. Apportionment of blame will not necessarily be rational but that does not diminish its reality. It can be very difficult when blame is directed at a hospital professional and one way of avoiding this is to try to appreciate all the sensitivities of individual situations including the family and to tailor communications accordingly.

Providing remedies

The appropriate remedy should aim, in so far as this is possible, to restore the complainant to the position he or she would have been in had things not gone wrong. I accept that this is not always possible. However, in the main, complainants look for honest answers, expressed sensitively and in understandable terms, with an apology and action to prevent similar complaints in the future. The remedies available should reflect this and include the provision of clear and comprehensive information, detailed explanations, apologies, reversing the action complained of if possible, changes in procedure and compensation. I would like to elaborate on three of these remedies.

Apology: A simple apology can be a very important remedy for complainants. If an apology is not provided, or is delayed, the complainant is less likely to be satisfied: all too often a failure or unwillingness to say "sorry" at an early stage is the reason for complaints proceeding further through the system than is really necessary or appropriate. Apologies can be given without an admission of blame or liability in relation to the substance of the complaint. At the same time, apologies should not be used simply to brush complainants off. An apology, however gracious, without answers or follow-up action and information, is not going to be sufficient response to the most serious complaints, and can too easily be used as an attempt, which usually fails, to get everyone off the hook.

Information: Complainants usually want information, an explanation of what happened and why. This explanation must be in a language which the patient or client can understand. If an explanation attempts to deny the complainant's experience of events, it is unlikely to be accepted. Explanations can also degenerate into a form of making excuses. The other side of the coin is that dissatisfied people may not complain if they feel nothing will happen as a result and, as experience shows, problems which might have been nipped in the bud, accumulate with disastrous consequences. It seems to me that information giving and the language used by administrators and health professionals are issues which could usefully be explored through the consumer consultation process.

Compensation: Financial compensation may sometimes be warranted e.g. where specific financial loss has occurred. Where the complainant has had to spend a considerable amount of time in pursuing the matter, payments in respect of " time and trouble " may need to be considered, although normally these would be for small amounts. Exceptional worry, distress or inconvenience may also be factors to be considered. You will find examples of such cases in my Office's annual reports. Indeed, a particular case involving the NWHB which featured in the 1999 Annual Report, illustrates many of the above issues. It can be summarised as follows:

Complaint against the North Western Health Board (Annual Report 1999)

The complainant was aggrieved with the Board's failure, as he saw it, adequately to support him in caring at home for his ill and elderly parents. He was also unhappy with the way in which it dealt with complaints he made on the matter. He had been unsuccessful in a number of separate applications made to the Board:

' He applied for assistance under the Housing Aid for the Elderly Scheme for the provision of a shower as his parents had difficulty in using the bath. The application was refused for two reasons. Initially the Board said that the provision of a shower was not covered under the Scheme; subsequently the it said that, as they had received a Gaeltacht grant to carry out other work on the house, his parents did not qualify under the Scheme.

' He applied for help under the Supplementary Welfare Allowance (SWA) scheme for the purchase of a washing machine. The complainant had to wash his own and his parents' clothes by hand. Due to his parents' ill-health, their clothes, including bed clothes, had to be changed and washed a few times each week. This application was refused on the grounds that total household income was in excess of SWA guidelines.

' After his mother's death, he applied to the Board for a SWA payment to help cover her funeral expenses. The application was refused on the grounds that the funeral account had been paid by the time the application was made and the Board felt that no exceptional need existed. The complainant said that he had to borrow money from his brother to pay the bill and that he also had other expenses arising from his mother's death.

The complainant also found it upsetting, and an indication of carelessness on the part of the Board, that his mother was sent a hospital outpatient appointment four months after she had died. He also complained that his mother, in his view, had not received proper care and treatment while in Letterkenny General Hospital or following her discharge from the hospital.

The Board arranged for an external Public Health Medicine Specialist to look into these complaints. He found:

- that the applications in relation to the shower and washing machine had been appropriately refused; - that there had been certain shortcomings in relation to the discharge of the complainant's mother from hospital; - that a failure of communication within the hospital resulted in the issuing of the out-patient appointment.

No opinion was given in relation to the funeral expenses application. The Board then apologised to the complainant for the shortcomings identified. However, he was not happy with this and, accordingly, he complained to my Office.

On examining the case, there were some aspects of the Board's dealings with the complainant with which my Office was not satisfied. It seemed that, given the flexibility of the Housing Aid for the Elderly Scheme, the shower application could have been granted. In considering the washing machine application, no consideration seemed to have been given to the exceptional circumstances within the household viz. a single man caring for ill and elderly parents, or to the applicant's financial circumstances (he was repaying a loan related to the cost of house repairs). While an apology had been given in relation to the treatment of the complainant's mother, and for the issuing of the out-patient appointment, there was no acknowledgement of the cumulative effect on the complainant of all of the problems encountered or of the time and trouble involved in his pursuing these matters.

My Office asked the Board to review the case in its totality with a view to acknowledging in some way the upset suffered, and the time and trouble taken by the complainant in pursuing his complaints with the Board. In further discussions with the Board, my Office expressed the view that the complainant had been adversely affected by its actions both before and after the death of his mother, that it should make a 'gesture' in acknowledgement of this and suggested that a payment of Euro 1,270 to the complainant would represent an appropriate remedy. The Board agreed to make this payment and the complainant accepted this resolution to his complaint.

Creating a culture of quality complaint handling

I commend the Board for working with my Office towards a successful resolution of this particular complaint and I have no doubt that valuable lessons have been learned which have since been applied to good effect. I consider that the importance of embedding the culture of quality complaint handling in the health service is so important, that we must learn from every experience and lesson available to us in this regard. In this context, an evaluation in 2001 of the NHS complaints procedure in the UK provides food for thought.

At local resolution stage almost half of complainants did not consider that their complaint had been handled well, with a similar percentage dissatisfied with the outcome and the length of time involved. In addition the same percentage considered the process to be unfair and biased. At independent review stage almost two thirds of complainants did not consider that their complaint had been handled well. Less than 15% were satisfied with the time taken to deal with the matter with only a little over 10 % satisfied with the outcome. Over 70% considered that the process was unfair and biased and almost 90 % considered the process to be distressing and stressful.

A common and pervasive source of dissatisfaction among complainants was poor attitudes of staff, both medical and administrative. Complainants often mentioned lack of respect, sympathy and understanding coupled with patronising, aggressive and arrogant attitudes. A call for staff to listen to complainants and to be more honest was common. A second common theme was the need for complaints to be dealt with quickly and for better communication. Complainants believed that their complaint could best be settled by a face-to-face meeting arranged as quickly as possible after the event. The evaluation considered that there was compelling evidence that a complaint can be escalated and positions entranced by poor initial handling by front-line staff or managers. The single most important changes which would have improved complainants' experience were:

• A more personal, quicker response
• A better, more honest attitude by staff
• Perceived independence in the handling of the complaint
• Better information/Support
• An explanation /apology

By contrast the majority of staff felt very positive about their experience of the complaints procedure, although the process was acknowledged to be stressful. A majority of staff thought the complaint against them had been handled well and they were satisfied with the outcome and the time taken to resolve the complaint. They were well supported by professional and managerial colleagues. The majority agreed that the process was both fair and unbiased. The only response that indicated significant dissent was about being kept informed throughout the process.

I do not put this information before you as any comment on the quality of the NHS complaint procedure. The evaluation document is most comprehensive covering many issues. I put it before you as encouragement to you not to consider that the work is done when the form and structure of a complaints system is in place. The culture of quality must also be embedded if you are to succeed. The trust placed in you to deal with complaints has to be supported by a demonstrated capacity to deal with such complaints in a timely, unbiased, fair and efficient manner, whilst simultaneously maintaining the confidence of the complainant and the respect of the individuals and organisations who are the subject of the complaint. An investigation should neither be a white wash nor a witch hunt. In relation to my own Office, it remains one of my strongest concerns that our credibility with our complainants should be matched by our credibility with the public bodies within our jurisdiction.

Some Complaint Statistics

In the ten year period 1993 to 2002 my Office received 4,010 complaints against health boards. Of this total, 199 (or 5%) relate to the NWHB. So far this year, my Office has received 279 health board complaints 8 (or 3%) of which have been against the NWHB.

I quote these figures for illustrative purposes only and I am not suggesting that one can use them to arrive at specific conclusions about individual health board performance in relation to the delivery of services. However, the outcomes of complaints examined by my Office are reasonably consistent across all health boards. About 50% of complaints are not upheld with the other 50% being either resolved or some form of assistance being provided to the complainant. In fact, this pattern is repeated across other sectors of the public service so that roughly 50% of complainants are better off as a result of referring their complaints to my Office.

In the health services area most of the complaints coming to me concern the various schemes operated within the Community Care Division e.g. Medical Cards, Domiciliary Care Allowance and Disabled Persons Maintenance Allowance. I also receive complaints about: > general and specialist hospital care > nursing home admissions > entitlement to subvention under the Nursing Homes Act.

I receive relatively few complaints about general and specialist hospital care. I think this situation is likely to change as health boards and hospital develop and refine their internal complaints systems and as members of the public become more aware of and more confident about exercising their right to complain. Also relevant to the relatively low level of complaints against hospitals is the fact that my Office is generally precluded from investigating complaints which relate to the exercise of clinical judgement. And, of course, the public voluntary hospitals are excluded from my jurisdiction. From the perspective of the public, this leaves me with an incomplete and somewhat confusing jurisdiction in relation to the health service. On the latter point, I am pleased to note that the Government is committed to introducing a Bill in 2004 to amend the Ombudsman Act which, among other things, will extend my remit to the public voluntary hospitals and to other public bodies.

Another development with implications for my Office is the Health Strategy published in 2001 by the Department of Health and Children. The Strategy's underlying principles are Equity, People Centeredness, Quality, and Accountability. It confirms the Government's belief that the Office of the Ombudsman is the appropriate mechanism for dealing with complaints relating to the health system as a whole. The strategy also provides for the development of a statutory framework for complaints to achieve greater clarity and uniformity of approach in dealing with complaints, structured local resolution processes as well as an opportunity for independent review.

The strategy also identified as meriting particular attention, the perceived inability to question the actions of decisions taken by individual practitioners in regard to clinical matters. Whilst acknowledging the need for freedom in exercising clinical judgement, the Government has equally accepted the need for a stronger framework for questioning and investigating clinical decisions in particular circumstances. The strategy envisages that proposed legislation on the statutory registration of health professionals will contain adequate machinery for the investigation of complaints against individual professionals.

No legislative proposals in relation to the statutory complaints procedure have been published to date. However, two initiatives were initiated by the Health Boards Executive (Hebe) and the Eastern Regional Health Authority (ERHA).

Under the Hebe initiative complaint and suggestion guidelines were developed in September 2002, incorporating attitudes to complaints, guidelines for handling complaints and support in handling complaints. The ERHA initiative resulted in the development of a framework for the enhanced and effective handling of complaints in the eastern region. The central thrust of the framework incorporated the concepts of local resolution , independent review and access to the Ombudsman.

Staff from my Office made a considerable input into the deliberations underpinning both initiatives and also into training initiatives in various Boards (Ombudsman Days) in the area of the complaint handling, the investigating of complaints and the psychology of complainants.

The Ombudsman's Role in giving Feedback to Public Bodies

Since assuming office, I have been considering what initiatives my Office might usefully take to assist public bodies in improving their level of service to their clients. My Office is currently developing a new Statement of Strategy and I would like to share with you some of my thoughts on how my Office might interact with public bodies in the interests of providing improved services to the public generally.

First, my annual reports, in addition to reporting to the Oireachtas on individual complaints will also provide guidance to public bodies on achieving best practice in public administration.

I also intend to produce systemic reports covering particular sectors of the public service. Examples from my predecessor's tenure as Ombudsman were the Nursing Homes Subvention Investigation Report and the Local Authorities Housing Loans Investigation Report.

I hope to meet the Chief Executives of the health boards from time to time to discuss issues of common interest to all the boards and I am greatly encouraged by the fact that Pat Harvey has welcomed this proposal.

My Office will continue to operate the 'Ombudsman Day' training initiatives in complaint handling which, I understand, have been very successful to date.

Finally, I am exploring an initiative whereby my Office will attempt to draw on its experience of examining complaints made against particular public bodies in order to identify systemic and procedural issues to be addressed by the public body. While I have yet to develop the finer detail, this might take the form of a report which my Office would issue to the public body, based on my Office's experience of examining complaints against the public over, say, the preceding two or three years. I would invite the body to comment on progress in addressing the issues raised in my report. The process might be regarded as a type of administrative audit albeit from the perspective of the body's ability to analyse underlying trends in complaint patterns and to refine its procedures so as to prevent similar complaints recurring.

In a sense, I see this latter proposal as an extension of the initiative which we are discussing here today. It can be viewed, perhaps, as a less direct form of consumer consultation but one which, I hope, with the assistance of my Office, will facilitate public bodies to learn positive and constructive lessons from complaints which, in turn, will translate into improvements in the quality of service delivery.

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