Overview of responses

2.1 In line with best practice, the consultation ran for 12 weeks. A copy of the consultation paper was sent to all NHS bodies, regulators, MPs, and to all those organisations with an interest in the NHS. A copy was also available on our website (www.ombudsman.org.uk/improving-public-services/reports) and the consultation was highlighted in trade publications. In total 95 external responses to the consultation paper were received. A full list of those responding, and pie charts showing the respondents broken down by type of body, can be found at Annex A.

2.2 As Annex A shows, the respondents included a wide range of organisations. 66% of the responses received came from NHS bodies. NHS respondents included Strategic Health Authorities, Primary Care Trusts, Ambulance Service Trusts, Mental Health Trusts and Acute Trusts including many Foundation Trusts. Responses were received from Parliament, from advice and advocacy organisations, from regulators, from Royal Colleges and from the wider Ombudsman community.

2.3 My consultation asked six questions:

1. Do you think the Ombudsman's intended overall approach to sharing and publishing information about complaints strikes a reasonable balance between protecting the privacy of the Ombudsman's casework and sharing the learning from complaints in the wider interest?
2. Do you support the Ombudsman's approach to putting information about complaints in the public domain?
3. Do you support the Ombudsman's approach to sharing information with the NHS?
4. Do you support the Ombudsman's approach to sharing information with the Care Quality Commission and Monitor?
5. Do you support the Ombudsman's approach to sharing information with professional regulators?
6. Do you have any other comments on the Ombudsman's approach to sharing and publishing information about complaints?

2.4 I was very pleased to see that my approach to sharing and publishing information about complaints was generally well received, with many people commenting on its quality and clarity.

2.5 Some respondents gave detailed responses on all of the questions in the consultation, whilst others broadly indicated their support for the Ombudsman's approach. The summary below does not include all the detailed comments which I received and which I have considered carefully; but reviews the responses to the six questions asked and highlights the general themes and comments which emerged. I have included some quotations to illustrate some of the points made by particular organisations, although the extracts should not be taken to reflect the entirety of their views.

2.6 Finally, I would add that a small number of responses included comments, sometimes critical, about other aspects of our work. This is valuable feedback for us to consider, and we will do so, but as they are unrelated to the content of the consultation, they are not included in this report.

Question 1

Do you think the Ombudsman's intended overall approach to sharing and publishing information about complaints strikes a reasonable balance between protecting the privacy of the Ombudsman's casework and sharing the learning from complaints in the wider interest?

2.7 There was overwhelming support for the Ombudsman's intended overall approach to sharing and publishing information about complaints, with the vast majority (95%) agreeing that the approach did strike a reasonable balance between protecting the privacy of the Ombudsman's casework and sharing the learning from complaints in the wider interest.

We are keen to see complaints as an important part of an overall approach towards understanding and improving the experience of patients.
Sir David Nicholson, NHS Chief Executive and Sir Hugh Taylor, Permanent Secretary, Department of Health

The College is strongly supportive of measures to learn from mistakes, and encourages a culture of openness between medical colleagues.
Royal College of General Practitioners

The approach set out in the paper does strike an appropriate balance between the confidentiality of individual investigations and the aspiration to maximise the learning from complaints.
British and Irish Ombudsman Association

The Trust is fully supportive of the Ombudsman's overall approach to sharing and publishing information about complaints.
Ashford and St Peter's Hospitals NHS Trust

We are in full support of the recommendations and look forward to seeing positive outcomes as a result.
Carers Federation Ltd (ICAS)

… this strikes a realistic and reasonable balance between protecting privacy and the wider public interest.
NHS North West Strategic Health Authority

[Liverpool PCT] welcomes the proposals laid down.
Liverpool Primary Care Trust

I believe that the intended approach strikes the right balance … The Trust fully supports the Ombudsman's approach.
North East Ambulance Service NHS Trust

The need for sharing appropriate information between relevant organisations is understood and we feel that the Ombudsman has struck the right balance.
British Dental Association

2.8 A small number of NHS trusts expressed concern as to whether the NHS trust or practitioner would be made aware of any disclosure of information about a complaint prior to it being placed in the public domain, and that the complainant's identity should be protected.

2.9 This report on the consultation provides an opportunity to provide some clarification about the Ombudsman's practice in this respect.

2.10 Normally we would only name a complainant in a published report of a case if we had their consent, or that of their family or representative, to do so.

2.11 When we investigate a complaint, we do inform complainants that we might use an anonymised summary of the investigation report in one of our published reports. We explain that, whilst the final decision on what to publish rests with us, we will want to take the complainant's views into account in making that decision. If we do decide to publish a summary of the case, we notify the complainant beforehand and send them an advance copy of the publication.

2.12 Similarly, it is our practice to notify the relevant trust or practitioner beforehand if we decide to publish a summary of a complaint about them and to send them an advance copy of the publication.

2.13 If we decide to publish the whole report we tell the relevant NHS body and practitioner and the complainant beforehand.

Question 2

Do you support the Ombudsman's approach to putting information about complaints in the public domain? [Paragraphs 5.3 and 5.4 of consultation document]

2.14 Respondents were generally supportive of the proposed approach to putting information about complaints in the public domain.

We welcome your proposal to complement local information [from local NHS providers]
by the production of your own annual report detailing the complaint handling performance of the NHS generally, highlighting any themes and issues arising from those complaints. This will support system wide improvement.
Sir David Nicholson, NHS Chief Executive and Sir Hugh Taylor, Permanent Secretary, Department of Health

We fully support and indeed expect the reporting of casework to other relevant institutions … Only through a multi-organisation approach to complaints, regulation and investigation, can we as a sector hope to truly safeguard patient safety and public wellbeing.
Nursing & Midwifery Council

We strongly support broadening the scope of information sharing arising from complaints investigations.
Action against Medical Accidents

Yes. This is in line with the better regulation taskforce aim of being open and transparent. This will ensure that providers and users of health care are fully aware of the quality and safety standards that apply.
Care Quality Commission

[Yes] NHS organisations could support the dissemination of this information to the public by putting a link to such information on their websites and by signposting people to this information through their PALS and Complaints services where this is appropriate.
NHS North Somerset

We support the Ombudsman's approach to putting information into the public domain, and would like to see with it more information about what the Ombudsman recommends. The public, and specifically us Governors and members, could use this information in holding us to account by requesting information on the actions we may take as a result.
Sussex Partnership NHS Foundation Trust

The National PALS Network welcomes the proposals and looks forward to working with other stakeholders to promote good practice in complaints resolution.
National PALS Network

2.15 Just under 10% of respondents raised issues around anonymising the practitioner or the body concerned when the Ombudsman puts information about complaints in the public domain.

The provision of information … should also be anonymised with regard to both the complainant and any individual organisation or practitioner. It should only be an exceptional circumstance that the identity of an organisation or practitioner should be included in any such report.
Dental Protection

… it is unclear whether the anonymisation will extend as far as the NHS body or practitioner complained about. We believe that in principle it should, as this will not interfere with the intention/purpose of the publication.
Medical Protection Society

In principle we agree though, other than in exceptional circumstances, the same rights of confidentiality should be accorded to respondents as well as complainants. If the primary purpose of disclosing the information is to assist NHS bodies and practitioners to learn lessons from complaints, there is no need to identify individuals, other than in exceptional circumstances.
Medical Defence Union

The BMA believes that complaints procedures should adopt a whole system approach and not seek to target individuals. We are concerned that any complaints procedure that allocates blame at the individual level rather than focusing on the system would not only de-motivate doctors and other healthcare professionals but reduce the efficiency of the system by fostering a blame culture.
British Medical Association

2.16 Again, this report on the consultation provides an opportunity to provide some clarification about the Ombudsman's normal practice in respect of naming NHS bodies and individual NHS staff and practitioners in published reports of cases.

2.17 We normally identify NHS trusts and, where applicable, strategic or special health authorities in our published reports of cases. However, we do not regularly name GP or dental practices (or other primary care providers) in our published reports of cases although we may occasionally do so, depending on the circumstances of the case.

2.18 We do not normally name individual NHS staff or practitioners in published reports. We are likely to do so only if an individual's actions, particularly in relation to responding to a complaint and/or the Ombudsman's recommendations, have been so poor that the Ombudsman has decided that naming them is the only way to impress on them the seriousness of the complaint, that is, to 'name and shame' them.

2.19 Many of the consultation responses emphasised the importance of openness and transparency in driving up the quality of NHS care. Others stressed how important it is for all those working in the NHS to be free to admit and learn from mistakes. Our approach is intended to strike an appropriate balance between making information available to the public at large and assisting NHS bodies and practitioners to learn from complaints.

Question 3

Do you support the Ombudsman's approach to sharing information with the NHS? [Paragraphs 5.5 – 5.9 of consultation document]

2.20 Respondents largely supported the Ombudsman's approach to sharing information with the NHS.

It is essential that information be shared with the NHS in order to ensure that improvements can be made in the way services are delivered. Proposals set out in the consultation seem entirely appropriate.
West Hertfordshire Hospitals NHS Trust

The Patients Association understands and accepts the reasoning for not further publishing decisions not to investigate in specific cases but would ask that general statistics on this issue are published regularly and at the very least in the annual report.
Patients Association

2.21 However, a significant number of responses (over 25%) felt that in cases where we decide not to investigate, we should share a copy of the decision letter we send to the complainant with the relevant NHS organisation as well.

We believe that it is only fair for the PCT and those involved in the complaint to be informed of the reasons why the Ombudsman decides not to investigate. This is useful feedback for practices – who need information about what they do right as well as what they do wrong.
London Primary Care Complaints Consortium

… it would be helpful to be given a statement of reasons why a complaint is not investigated so that any good practice in terms of complaint management can be shared with staff.
Kingston Hospital NHS Trust

It would be logical to share this information as it would enable the practice to know what the complainant's concerns were and following on from this, to decide whether any changes need to be made. The opportunity to learn from the complaint should not be lost…
Medical Protection Society/Dental Protection

We have one point of disagreement with the proposals however: a number of NHS Confederation members have noted that it would be beneficial to share the reasons for decisions not to investigate. This information could contain useful learning for the NHS. Although the Ombudsman states that currently she is not empowered to send a statement of reasons not to investigate to anyone other than the complainant we suggest that it should be possible to obtain consent.
NHS Confederation

The Trust is not always notified that a case has not been upheld when we ask and we should be notified of their [the Ombudsman's] decision not to take a case on for investigation.
North Tees & Hartlepool NHS Foundation Trust

… it would be beneficial to be provided with copies of all outcomes of cases even when a decision not to investigate has been taken. This means that we can understand where the decision not to investigate has been reached what we have done right to balance out what we might have done wrong.
Trafford Primary Care Trust

… when a complaint has been made to the Ombudsman that has not been upheld it is important for the organisation complained about to know that it has not been upheld … The Ombudsman would not need to go into great detail just confirm to the organisation that the complaint is not being investigated or has not been upheld.
NHS Eastern & Coastal Kent

We believe that information about a decision not to uphold a complaint should always be shared with the NHS organisation/s to whom it relates.
Worcestershire Mental Health Partnership NHS Trust

2.22 We are very pleased with the level of engagement there has been on sharing information generally and welcome the expressed interest of this significant minority of respondents in having even more information. I understand completely why NHS bodies would want to receive as much information as possible when we decide not to investigate so as to evaluate their practice and to identify any learning points which arise, as well as helping to maintain a more complete overview of complaints and their resolution at local level.

2.23 As the consultation document explains, this is a difficult balance to strike: whilst we want to maximise the benefit of sharing information widely, the legislation which governs the Ombudsman's work requires the information we obtain to be kept confidential and only disclosed in very limited circumstances. Where the Ombudsman has investigated a complaint, section 14(1) of the the Act places a duty on her to send a copy of the investigation report to, amongst others, the complainant and to the NHS body concerned. In those cases where the Ombudsman has decided not to investigate, section 14(2) of the Act places a duty on her to send a statement of reasons (known as a decision letter) to the complainant (and to any MP who assisted as applicable) only. The Ombudsman is not specifically empowered to share the decision letter with the NHS body concerned, and there are further restrictions on the sharing of information obtained for the purposes of the investigation. Therefore, in order to act lawfully, we have to be quite sure that the rationale for sharing information falls fairly and squarely within the limited circumstances set out in the Act, that is, that it was 'for the purposes of the investigation and any report to be made in respect of it'.

2.24 That said, the strength of the views of respondents on this issue has persuaded me that we need to review our practice in relation to the information we share with NHS bodies and practitioners about complaints we decide not to investigate. We will carry out that review over the next few months and publish the outcome of it as soon as possible. We will continue with our current practice in the meantime.

2.25 I have also noted the request from the Patients Association that we publish regularly general statistics on complaints that we decide not to investigate. We will include those general statistics in our new annual Report on NHS Complaint Handling Performance, the first of which will be published in October 2010.

Question 4

Do you support the Ombudsman's approach to sharing information with the Care Quality Commission and Monitor? [Paragraphs 5.10 – 5.18 of consultation document]

2.26 On the whole, respondents were broadly supportive of the Ombudsman's approach to sharing information with the Care Quality Commission and Monitor. The regulators themselves are supportive and welcome the proposals.

The confidentiality of the complainant is preserved but information about the issue is available for action if necessary. This will assist in driving improvements in quality.
Care Quality Commission

We look forward to working with the PHSO and putting into practice the approach outlined in our Memorandum of Understanding, which I believe reflects the intention and sentiment of your consultation.
Monitor

We would like to confirm our general support for the document and specifically our support for the sharing of information with the Care Quality Commission, Monitor and professional regulators.
National Patient Safety Agency

The Ombudsman would be failing in her duty if relevant and appropriate information were not shared with the Care Quality Commission, Monitor and professional regulators.
West Hertfordshire Hospitals NHS Trust

2.27 There were, however, queries raised by some respondents as to whether PHSO should share the full investigation report with the regulator where relevant/if requested.

… we strongly support the sharing of information with the key agencies responsible for monitoring standards within the NHS but are concerned that this falls short of being able to share the full investigation report … We feel that the approach to share information with the Care Quality Commission and Monitor needs to go further than the sharing of cases only where there has been service failure and maladministration and should include the sharing of all cases where an investigation report has been prepared.
Action against Medical Accidents

… there may be cases where the CQC or Monitor would find it helpful to be provided with a full investigation report, in order to have additional information to assist their inspection and monitoring activities where systemic failings have been identified in an NHS body. In such cases, and particularly where individual complainants give their permission, it would seem unduly restrictive for full investigation reports not to be made available to the CQC or Monitor.
Public Administration Select Committee

The EHRC believes that for each complaint investigated which has involved the Ombudsman obtaining information from and sharing information with the regulators, that copies of the investigation reports should be shared with the Care Quality Commission and Monitor in order for the regulators to note the conclusion of such complaints … We believe that, in the case of 'systemic remedy' conclusions, copies of the report and action plan should be sent to us, in addition to those organisations listed …, where it is clear that breaches of equality and human rights have been found.
Equality and Human Rights Commission

We question however the decision to not normally send copies of investigation reports to the CQC or Monitor. Having these reports in full may well enable these bodies to avoid duplication in their own investigations, and reduce bureaucracy. Some flexibility in the process described in 5.14 [of the consultation document] is desirable, where the CQC or Monitor wish for a full investigation report it would seem to be common sense to provide one.
NHS Confederation

2.28 I understand why it might be considered helpful to share the investigation report in full with the regulators. However, the regulators themselves – the Care Quality Commission and Monitor – have not asked to have the reports in full; in fact, they have specifically requested just to have the summary information when the Ombudsman has made recommendations for 'systemic remedy' as proposed, that is:

• The name of the NHS body concerned
• A summary of the Ombudsman's findings
• Details of the Ombudsman's recommendations.

2.29 On a practical level, providing the regulators with the full investigation report (which includes a considerable amount of personal information) would result in them needing to sift through it in order to capture the significant points to inform their quality and risk assessments – which is precisely what the Ombudsman is proposing to do on their behalf.

2.30 Our general approach, therefore, will be as set out in the consultation document. If in a particular case the Care Quality Commission or Monitor told us that they would find it helpful to have access to a full investigation report, we would try and find a way to make that possible.

2.31 A handful of responses questioned whether we should share information with the Care Quality Commission and Monitor at all.

2.32 It is clear to me that it is essential to share with the regulators any recommendations we have made for 'systemic remedy', as it is the regulators' responsibility to ensure that these recommendations are properly followed up in their inspection and monitoring programmes.

2.33 Trusts are asked to share action plans (to provide systemic remedy) with the commissioning Primary Care Trust so that the commissioner is fully aware of issues in the services it is commissioning; and with the Strategic Health Authority in order to inform its support and oversight role.

Question 5

Do you support the Ombudsman's approach to sharing information with professional regulators? [Paragraphs 5.19 – 5.23 of consultation document]

2.34 Over 95% of respondents were supportive of the Ombudsman's approach to sharing information with professional regulators.

This seems to be a proportionate policy towards sharing information with professional regulators, likely to safeguard public welfare.
General Medical Council

The proposed approach appears to give the appropriate flexibility needed in dealing with cases that may also be considered by professional regulatory bodies.
Public Administration Select Committee

We agree with the Ombudsman's decision to use her discretion to share information with the professional regulators in the following circumstances: 'for the purposes of the investigation and any report to be made in respect of it' and 'in the interests of the health and safety of patients', specifically in relation to sharing copies of investigation reports.
Council for Healthcare Regulatory Excellence

The HPC supports the Ombudsman's proposed approach to sharing and publishing information about complaints.
Health Professionals Council

Yes, again this appears to be a sensible and logical step. Cross-agency communication provides a vital safety mechanism for patients.
Trafford Primary Care Trust

2.35 A handful of respondents requested further clarification as to under what circumstances I would inform professional regulators if an individual's fitness to practise was called into question.

There are circumstances where the Ombudsman decides not to investigate a complaint she receives about the NHS. Section 5.21 of the consultation states that when the Ombudsman decides not to investigate a complaint, she is not required, or indeed empowered, to send a statement of reasons to any other individual or organisation. We understand that in such circumstances, the Ombudsman may inform the complainant of their option to refer the complaint, where appropriate, to the relevant professional regulator. In such cases, we would encourage the Ombudsman to refer the complaint directly to the appropriate professional regulator. In the interests of public protection, we believe that a public authority should make a professional regulator aware of any concerns about the fitness to practise of a health professional, rather than rely on the complainant to do so.
Council for Healthcare Regulatory Excellence

The Society supports the Ombudsman's approach to sharing information with professional regulators. However, we request clarification of the Ombudsman's approach in cases where she decides not to investigate but may uncover information that call a registrant's fitness to practise into question. It appears that unless the regulator is already party to the enquiries there is a possibility that such information may not be disclosed to the regulator. We seek assurance that in cases where the Ombudsman obtains such information she will disclose this information to the regulator, regardless of whether they were party to the complaint or not and regardless of whether an investigation was conducted or not.
Royal Pharmaceutical Society of Great Britain

2.36 As is set out in the consultation paper, in any instance where I obtain information that leads me to conclude that a person is likely to constitute a threat to the health and safety of patients I will use the powers under section 15 of the Act to disclose it 'in the interests of the health and safety of patients' to the appropriate bodies. I will do so whether or not I decide to accept the complaint for investigation and regardless of whether the professional regulator is already party to the complaint.

2.37 I am also happy to provide the clarification requested by the Council for Healthcare Regulatory Excellence that I will make the professional regulator aware of any concerns I have about the fitness to practise of a health professional, rather than rely on the complainant to do so.

Question 6

Do you have any other comments on the Ombudsman's approach to sharing and publishing information about complaints?

2.38 Respondents were largely supportive of the Ombudsman's approach to sharing and publishing information about complaints. Whilst I am encouraged to receive supportive comments, I am also pleased to receive comments and suggestions that challenge my proposals and encourage me to re-think and justify the position that I originally set out.

We support the principle of learning from complaints and encouraging appropriate changes to practice in order to enhance patient safety.
Medical Defence Union

We believe that sharing information about complaints with a view to improving public service delivery is an important part of the role of public sector Ombudsmen and we support the approach you have outlined in the consultation document.
Scottish Public Services Ombudsman

I agree that you and your team should be able to use your discretion, knowledge and experience in deciding with whom you share and disclose information to ultimately benefit patient care and safety.
Royal Brompton & Harefield NHS Foundation Trust

An annual report by the Ombudsman on the overall complaint handling performance of the NHS will obviously be based solely on those complaints received by her office for review. As those complaints accepted for investigation by the Ombudsman come out of the quantum submitted to her for review, there may be a skewed picture of the NHS's complaint handling generally and it would not be 'comprehensive' as indicated. Is there a proposal for the Ombudsman to also obtain or be given figures on total numbers of complaints handled in the NHS to include in her report and give context to the number of poorly handled cases she sees?
NHS Newham

The PCT would welcome as much contextual information as possible that helps improve services with less of a focus on establishing 'league tables' for organisations.
NHS Bury

2.39 A significant proportion of the complaints put to the Ombudsman are, in fact, resolved without the need for investigation. There are those where we find the local complaint handling has been acceptable and those where some intervention on our part with the organisation in question has resulted in a satisfactory outcome. It is a fact that those complaints we decide to investigate often involve the more intractable, complex or significant issues. Our investigations may reveal serious failings or they may show that there has been no service failure or maladministration. My annual Report on NHS Complaint Handling Performance will provide a comprehensive picture of the complaints which come to the Ombudsman: I do not intend to establish 'league tables', but instead to provide valuable information for the NHS, its users and the public at large.