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Sixth Report Session 1998-99

Volume 2
OCTOBER 1998 - MARCH 1999

The full report of selected cases

Summary of selected cases

DEPARTMENT OF HEALTH

Case No. C.345/96

Mishandling of the proposed publication of a book

6.1 Dr B complained about the way the Department of Health (DH) and Her Majesty's Stationery Office (HMSO), part of the then Office of Public Service, dealt with the proposed publication of a book based on his doctoral thesis.

6.2 My investigation began in August 1996 once the Ombudsman's predecessor had received the comments of a Deputy Secretary at DH and the then Controller and Chief Executive of HMSO (the Chief Executive) after the then constituency Member had referred the complaint to him. I have not put into my report every detail investigated by the Ombudsman's staff, but I am satisfied that no matters of significance have been overlooked. The main abbreviations used in the report and their meanings are listed in an appendix to this report.

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Background

6.3 In June 1988 Dr B received a nursing research studentship award (the studentship) sponsored by the then Department of Health and Social Security (since July 1988, DH). The studentship funded Dr B's studies towards a PhD degree. A document (termed the 'conditions of support') sent to Dr B by DH said that copyright on all reports and research materials proposed as part of, or incidental to, his research rested with the Crown. Proposed publications arising from the research should be submitted to DH in draft, 28 days before publication was due to take place. If publication of such material in book form was proposed DH had to be consulted before any arrangements were entered into with publishers. The conditions also said that in any event a publication based on the research should acknowledge DH's support and/or carry any disclaimer that DH might require. However the conditions also recorded that the author would be free to accept or reject any comments made by DH.

6.4 In October 1996 the majority of HMSO's functions, including that of general publishing, were transferred to the private sector entity known as The Stationery Office Ltd (SO Ltd). However a residuary body which for the sake of clarity I refer to as HMSO (Residuary), was established as a division of the Office of Public Service. HMSO (Residuary) retains the responsibility for the control and administration of Crown copyright.

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Jurisdiction

6.5 SO Ltd is a private organisation and its actions are outside the Ombudsman's jurisdiction. Where I mention it in this report it is to put Dr B's complaint into context. The investigation is confined to the way in which DH and HMSO dealt with the proposed publication of Dr B's book.

Investigation

6.6

1994

On 19 April 1994 Dr B wrote to DH's Research and Development Division (RDD) enclosing a copy of his thesis. He said that he would like to arrange for its publication in book form. He asked RDD to let him know if DH would be interested in publishing it themselves. On 26 April the officer at RDD dealing with Dr B's studentship (I call her officer A) circulated the thesis to various colleagues within DH's Nursing Division to whom she thought it might be of interest. In a covering memorandum she said that she would pass any comments on to Dr B, adding that he was "considering using some (my emphasis) of this material as the basis for a book". On the same day officer A wrote to Dr B thanking him for the thesis, which she told him had been circulated within DH. She told him that it would not be feasible for DH themselves to publish the thesis but her letter did not place any other restriction on who might act as publisher. She said that "the Department .... would have no objections to you using the material of this study as the basis for a book [but] the position of Crown Copyright would pertain, and we would require to agree the draft version of such a book". Officer A said that research reports that DH themselves wished to have published were negotiated with either HMSO or private publishers. In this case it would be for Dr B himself to explore with publishers their interest in such a book.

6.7 On 15 June Dr B wrote to an officer at HMSO (I call her officer X) asking her to consider publishing the thesis. He told her that the study had been funded by DH. On 30 June officer X replied that his thesis would be considered for publication. She said that HMSO could only publish on behalf of Parliament, Government Departments or other bodies supported wholly or partly by public funds. For that reason they would need to ensure before publication took place, that an appropriate public body was prepared to lend its name to the book. That endorsement could take the form of the organisation's name and/or logo on the cover or a short statement to the effect that publication through HMSO was supported by that organisation. Officer X said that in Dr B's case the support of either DH or the university where he presented his thesis (the university) would suffice. On 5 July Dr B wrote to officer A explaining that HMSO had shown some interest in publishing his thesis but that before they would do so they needed an appropriate public body to "lend its name as evidence of its support [which usually took] the form of the name and/or logo of the sponsoring organisation appearing on the cover, or a short statement inside the book". He asked whether DH would be prepared, in that way, to support publication by HMSO of a book based on his thesis.

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6.8 On 28 July, in reply, officer A said that, while DH published a number of research reports through HMSO, those were largely of work that had been directly commissioned by DH. She said it was not DH's practice to support financially, or in policy terms, the publication of work that had been done primarily in pursuit of a higher degree. She concluded that while DH would "be quite happy to be associated with a publication based on [Dr B's] study, I do not think we would be able to give the type of support required to ensure it was published through HMSO." On 1 August officer X wrote to Dr B telling him that, subject to his obtaining the appropriate support from either DH or the university, HMSO were prepared to publish his thesis. Officer X said that they would expect to print a disclaimer to the effect that any views expressed in the book were those of the author alone and not the publisher, and that copyright would be assigned to the Crown. Following a telephone conversation with officer A (unrecorded on the DH file) Dr B wrote to her on 3 August, enclosing a copy of officer X's letter of 1 August. He suggested that, since the only remaining barrier to publication seemed to be some form of approval by DH, the department should review the typescript of his thesis for both policy considerations and its suitability for publication by HMSO. He said that he had been pleased to note from officer A's letter of 28 July that DH would be happy to be associated with a publication based on his study. He continued by saying "As far as I can see, such an association, or its explicit acknowledgement, is all that HMSO requires. This is also all that I am requesting DH to consider granting".

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6.9 On 4 August officer A wrote to three colleagues within DH reminding them that in April she had circulated Dr B's thesis for comment (paragraph 6.6). She said that although she had asked him to consider other publishers Dr B was anxious to submit his work for publication through HMSO with a preface from DH indicating that his findings were of "national importance and relevance". She asked for her colleagues' views and advice on whether such support should be forthcoming from DH. One of officer A's colleagues replied saying that while the thesis was of interest he was inclined to agree that publication through HMSO was not the best course of action (although he gave no reasons for that), and that he was not sure that DH would wish to give the thesis the endorsement that Dr B was seeking. Another said that the thesis was of value but could not be promoted by DH as being of "national importance". He suggested a more limited endorsement might well satisfy Dr B. A third colleague wrote that he agreed that publication through HMSO was not the best course of action but he added that DH might wish to endorse Dr B's work as they had awarded him the studentship. On 24 August officer A wrote to Dr B to say that she had consulted colleagues in DH whose advice was that, while they wished to congratulate Dr B on completing an interesting study, they did not feel that the Department could endorse it by supporting its publication through HMSO. She hoped that Dr B would be successful in exploring alternative publication sources where the endorsement of the Department was not required and provided details of an editor that he could contact.

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6.10 On 14 September the university told Dr B that they would be happy to be associated with publication of his thesis. On 17 October Dr B wrote to officer X enclosing copies of the typescript of the thesis and the letter from the university. On 22 November officer X wrote to Dr B enclosing a draft agreement for publication for his consideration. On 20 December Dr B returned the draft agreement. He said that the copyright of the thesis belonged to the Crown rather than him and that DH would need to be consulted on the draft of the book before publication went ahead (paragraph 6.3).

6.11

1995

On 31 January 1995 officer X wrote to officer A asking if DH had approved the draft manuscript of Dr B's thesis for publication. On 13 February officer X wrote to Dr B enclosing a new draft agreement drawn up to reflect Crown copyright. Officer X said that she had been somewhat taken aback to discover that the material for the book was Crown copyright. On 14 February an officer at DH (I call him officer B) replied to officer X. Officer B said that DH had a copy of Dr B's thesis but not of "the current manuscript". He added that it was not the policy of DH to support financially publication of work done primarily in support of a higher degree. He said that the unanimous advice of those in DH responsible for policy in the relevant area was that the department could not endorse the publication of the work through HMSO. The letter said that officer A had told Dr B as much in her letter of 24 August 1994 (paragraph 6.9). On 21 February Dr B sent officer X a signed copy of the agreement sent to him on 13 February. He asked if DH had approved publication, stressing that he was anxious to publish as soon as possible. On 27 February officer X wrote to Dr B and told him that DH had said that they were unable to endorse publication through HMSO. She returned his manuscript and wished him luck in finding another publisher.

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6.12 Shortly afterwards Dr B contacted officer A to express his concern and anger at what he saw as DH's obstruction of the publication of his thesis through HMSO. On 14 March officer A wrote to colleagues at DH, including the departmental solicitors, asking for advice. She set out the background to the case saying that Dr B had been told on 24 August 1994 (paragraph 6.9) that DH could not endorse publication through HMSO. She said that it was unfortunate that Dr B had not informed HMSO of the contents of that letter and that they had reached an advanced stage in agreeing to publish the work before DH's letter of 14 February had set out their objection to publication by HMSO. She summarised the reasons she saw for not supporting HMSO publication:-

(i) the work had been carried out with support from DH and was Crown copyright;

(ii) in academic circles it was probably unheard of for a PhD thesis to be published unamended and Dr B's thesis was not of such extraordinary quality to justify publication without amendment;

(iii) it would be difficult to extrapolate the findings in the thesis to a more general context as would be implied by publication by HMSO;

(iv) Dr B had never been left in any doubt that DH did not oppose publication of his findings but they did oppose publication through HMSO;

(v) Dr B had not wanted information about other potential publishers, and

(vi) if DH were to agree to the publication of Dr B's thesis it might establish a precedent for others who had been in receipt of similar support.

Officer A asked for advice.

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6.13 On 25 April an officer from the departmental solicitors (I call him officer C) advised that, as no cost would fall on DH through publication of Dr B's thesis and as they were not being asked to endorse his views, "it seems difficult to identify a sustainable objection to the proposal" [for publication]. He added that, if the overall purpose of the studentship was to increase research and understanding in the health professions, it would seem that publication was desirable and it would be for readers to assess the merits of the research. He did not see that any precedent would be set by publication because future publications would be at the financial risk of HMSO rather than DH. Officer C offered to discuss the matter. In a manuscript comment to officer A another officer who had been consulted supported that analysis of the position. On 3 May officer A wrote a memorandum to the then Deputy Director of RDD (I call him officer D) setting out her intended course of action over the publication of Dr B's thesis. Officer A said that after completion of his thesis Dr B had conceived the idea that his thesis would be published by HMSO unamended and with DH's endorsement. He had been informed that he would not receive DH's endorsement but had gone ahead and negotiated with HMSO without telling HMSO that. She said that HMSO had withdrawn their agreement to publish Dr B's thesis after finding out that it would not have DH endorsement, and that Dr B held DH responsible for that decision. She noted that "advice from solicitor's division has been sought and it appears that this is a fairly clear cut case which is being pursued pointlessly". She said that, since DH had not heard from Dr B for two months, she did not propose to write to him further and would close the file. Officer D added "I agree" in manuscript, along with his initials.

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6.14 On 27 August Dr B wrote to the then Secretary of State (SoS). Dr B set out the background to his complaint and said that DH had refused to allow publication of his thesis by HMSO without giving an adequate explanation. He asked that the matter be investigated thoroughly. On 5 September Dr B wrote again to the SoS asking for a response to his complaint. On 13 September Dr B's letter of 5 September was passed to RDD but the referring section said they could not find the letter of 27 August. On 14 September officer D noted that Dr B's complaint had been passed to RDD and asked officer A to deal with it promptly. On 26 September officer D wrote to Dr B to say that his letter of 27 August did not appear to have been received by DH. He asked for a copy of the letter so that DH could reply. In the meantime Dr B had complained again to DH through the former Member, who wrote to the then SoS on 21 September. On 16 October DH replied to the former Member enclosing a copy of officer D's letter of 26 September.

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6.15

1996

On 5 January Dr B wrote to officer D in reply to his letter of 26 September, which he said he had only recently received. He enclosed a copy of his letter of 27 August, complained about the actions of officer A, and asked for an internal review by DH. He said that officer A had assured him during a telephone conversation in March 1995 that he would receive a full explanation of DH's actions but he had not done so. On 16 January officer A sent officer D a draft reply to Dr B. (She attached papers and the departmental file.) On 24 January officer D wrote to Dr B along the lines proposed by officer A. He said that there was no precedent for someone who had obtained the studentship having his thesis published unamended by HMSO or any other publisher; that officer A and HMSO had both recommended that he contact other publishers, officer A having given him specific suggestions for prospective publishers; and that in her correspondence officer A had acted not as an individual but as a representative of DH, whose well-established policies on the publication of research she had accurately reflected. Officer D added as a personal comment that he was concerned that Dr B had been unable to take the advice he had been given that he should seek a different publisher to HMSO for his book, as the longer correspondence with DH continued, the more the value of his research might decrease.

6.16 On 31 January Dr B telephoned officer D, whose note of the conversation records Dr B as saying that he was not happy with officer D's letter of 24 January (paragraph 6.15) asking how he could appeal against the views expressed therein and enquiring if the letter had resulted from an administrative review by a senior officer. Officer D assured Dr B that his letter was the consequence of such a review. Dr B asked if the matter could be dealt with at a more senior level; in response officer D told Dr B to write to him. In reply, on the same day, Dr B said that he had never disputed that the thesis was Crown copyright. He suggested that the fact that there was no precedent for such a publication was not sufficient grounds for it to be obstructed. He added that whether or not he had approached other publishers (as he had but without success) was irrelevant and did not obviate the need for a proper explanation from DH for their actions. He described officer A's behaviour as unreasonable, perverse and possibly malicious. Dr B said that officer D had ignored his assertion that officer A had promised him a full written explanation in March 1995 that he had never received. He also said that officer D had not told him whether or not there had been a full administrative review as he had requested and that, if it was possible, he wanted the whole affair to be reviewed promptly at a more senior level within DH.

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6.17 On 12 February officer D replied to Dr B's letter of 31 January (paragraph 6.16). He said that he did not consider that Dr B's letter had raised any new points of complaint, that officer A had not written in March 1995 because "then, as now, it was felt that there was nothing to add to the information you had already been given" and that it was DH's practice to review the events preceding any complaint and that had been done in Dr B's case. Officer D added that in the course of that review he had sought advice from the department's solicitors on the substance of Dr B's complaint and "they have advised me that the Department's policies and practices have been rigourously adhered to at all stages of considering your thesis and they can find no grounds to support your complaint". Officer D said it was his opinion that the unfortunate situation need not have arisen if Dr B had informed HMSO of the substance of officer A's letters sent in the summer of 1994 (paragraphs 6.8 and 6.9).

6.18 On 21 February Dr B wrote again to officer D saying that officer A's letters of July and August 1994 (paragraphs 6.8 and 6.9) did not state outright that DH would not give the type of support needed for publication through HMSO and that even when DH had refused to endorse his work they had not said that they would not permit HMSO to publish it under any circumstances. On 12 March officer D replied saying that agreement to support publication based on Dr B's doctoral studies did not indicate agreement to publish a complete unamended thesis. He said that he would be leaving DH in a few days and found it hard to see how the expenditure of further public resources on Dr B's complaint could be justified. He asked Dr B to discontinue his correspondence. Dr B replied on 18 March repeating his complaints and saying that he had still not received a proper reply to the questions he had raised. He described the terms of officer D's last letter as "arrogant, high-handed and patronising" and said that he would continue with his correspondence until he received satisfactory replies. DH did not reply to that letter. Meanwhile on 5 March the then Member had referred Dr B's complaint to the Ombudsman's predecessor.

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DH's response to the complaint

6.19 In his response to the complaint the Deputy Secretary said that, when officer A had sought advice from her colleagues on Dr B's request for some form of endorsement from DH for the proposed publication of his thesis by HMSO, she appeared to have misinterpreted that request and sought the advice on the basis that Dr B wished to incorporate a preface from DH to the effect that "the findings of his study are of national importance and relevance" (paragraph 6.9). The Deputy Secretary said that that misunderstanding was unfortunate and might have affected the tone of replies from within DH. He said that, after the university had agreed to lend their name to publication through HMSO, that appeared to mean that DH had then only to consider matters relating to Crown copyright. When HMSO had asked DH whether they approved Dr B's draft their response appeared to have led HMSO to believe that DH wished to discourage HMSO publication. The then Deputy Secretary said that he believed DH's response could reasonably have been expected to have that effect and was therefore misjudged. He said that DH should have realised that they were merely being consulted about copyright and were not being asked to "endorse" the publication. He said that those problems seemed to have arisen as a result of inexperience and inadequate supervision of staff, which had served to perpetuate officer A's original misunderstanding.

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6.20 The then Deputy Secretary said that, although Dr B had complained that DH had effectively prevented publication of his thesis, DH had in fact made it clear throughout their correspondence with him that permission to publish was always available and indeed officer A had suggested possible publishers. He agreed, however, that DH's actions had had the effect of preventing publication through HMSO and that that had been unreasonable once the university had offered their endorsement. He said that he would be writing to Dr B to apologise for DH's actions and to tell him that, subject to approval of the draft manuscript for publication, DH would be prepared to tell any publisher (including HMSO) that they would be content to see it published. He added that he had asked the Director of RDD to ensure that complaints such as Dr B's would in future be subjected to a thorough internal review by a senior officer.

6.21 The Deputy Secretary said that Dr B had also complained that DH had provided no adequate explanation of why they had not supported publication through HMSO. The Deputy Secretary saw that as due more to confusion over what was being requested and the reasons for not providing it than any intent to withhold information. He said that, nonetheless, a further apology was due to Dr B for DH's failure to investigate the case fully and resolve the matter before the case was referred to the Ombudsman's predecessor. He said that when writing he would also apologise for that.

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Evidence from officers A and D

6.22 During the course of the investigation officer A told the Ombudsman's staff that any research publication with which DH was associated should carry scientific credibility. That required any material prepared for publication to be agreed with DH before being submitted to a publisher. That practice would have prevented the publication of an unamended thesis by HMSO or any other publisher. Other theses, completed with DH funding, had been published by publishers other than HMSO. They were always amended to a format that was likely to attract the interest of a wide professional readership. The amended versions also incorporated the comments of the scientific review process conducted in the academic examination system as well as that conducted by the academic publishers. In those circumstances the amended pre-publication manuscript would have been submitted to DH for comment and invariably agreed, with at most minor amendment. Dr B had never submitted a manuscript for publication - all he had submitted was his PhD thesis.

6.23 Officer A said when she had asked her colleagues for comments on whether to publish Dr B's thesis she had told them that he wanted a preface from DH indicating that its findings were of "national importance and relevance" because Dr B had used those words in a telephone conversation with her. She had taken the view that Dr B's thesis was not suitable for publication by HMSO and had thought that any comments she might receive from her colleagues could potentially have been helpful to him in pursuing publication with another publisher. In officer A's view those colleagues who had offered limited support for publication of Dr B's thesis were anxious that any such as Dr B producing academically good work should have it published. Her letter of 24 August 1994 to Dr B had been more than a reflection of her colleagues' views as it also stated what she had understood to be RDD's publication policy. She said that if she had agreed to publication through HMSO she would have had to answer to senior officers who would have called into question the practice of student researches being published in that way when DH had also entered into contracts for research in the same field. She had seen and approved the letter written by officer B in response to HMSO's letter of 31 January 1995 (paragraph 6.11). With the benefit of hindsight officer A considered that the response had probably not been adequate and she should have asked HMSO about the draft manuscript. She thought that HMSO had changed the ground-rules for publication prior to privatisation and were by then less rigorous about the material which they were accepting for publication. The publication of an unamended thesis should have been a question for HMSO to consider but officer A said she had felt obliged to do that herself as they had not done so. She thought she had discussed that with HMSO in late 1994 but it was so long ago that she could not remember details of the conversation.

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6.24 Officer A said she had telephoned the departmental solicitors after receiving their minute of 25 April 1995 (paragraph 6.13) and had subsequently spoken to the university. She regretted that she had not recorded those conversations and could only presume that she had disagreed with the solicitor's advice when she had written to officer D on 3 May 1995 (paragraph 6.13). She could not remember whether the solicitor's advice had been specifically brought to officer D's attention.

6.25 Officer A explained that when Dr B had written to officer D on 5 January 1996 (paragraph 6.15) she had drafted the reply. There was nobody else available to draft the letter as she was the only person who had known Dr B and who was familiar with the case. It had seemed odd to her that she should draft the reply to a complaint about her conduct but there had been no other staff of an appropriate grade who could have done it. Officer A said that she had also drafted the later letters from officer D to Dr B.

6.26 Officer D told the Ombudsman's staff that DH's initial response to the Ombudsman in respect of the complaint had been prepared without any input from him (although he had not volunteered any). Had he still been in the department and had he been asked for advice he would not have given the advice that the Deputy Secretary appeared to have received from within DH (paragraphs 6.19-6.21). During his time in DH he had been closely involved in developing DH's policy on the publication of research sponsored by the department and Dr B's proposed publication had been dealt with in line with that policy. The nature of the proposed publisher was important and HMSO had had a special status insofar as it was widely regarded at the time as the Government's policy publisher. For that reason publication of department-funded research work through HMSO inevitably implied an endorsement of the research greater than that which DH had felt able to give in Dr B's case, irrespective of whether a publication by HMSO would bear any formal endorsement from DH. He also felt that Dr B had shown in his correspondence that he appreciated that publication through HMSO would carry a special significance. Officer D stressed that, with the exception of the proposed publication through HMSO, the department had been keen to see Dr B's work published and had repeatedly encouraged him to explore opportunities to do so with other publishers. Officer D said that, for those reasons, the distinction that had been drawn in the department's response to the complaint between Dr B's original request for a formal endorsement of publication through HMSO, and the later question of the department permitting publication under Crown copyright once endorsement had been found elsewhere, was, in his opinion, a false one. He and officer A had always taken the view that it would be inappropriate for the thesis to be published through HMSO, irrespective of whether the publication was formally endorsed by DH or another public body. They had not misunderstood what had been asked of them after Dr B had obtained the endorsement of the university and HMSO had asked them to approve publication in terms of Crown copyright. He stressed that, contrary to the impression given in the departmental response to the complaint, both he and officer A were highly experienced in dealing with publications based on work supported by the department.

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6.27 Officer D said that, at the time of Dr B's complaint against DH and officer A, RDD had not had any formal procedures for dealing with complaints. When he had asked officer A to draft his first response to Dr B he had done so in line with normal line management arrangements. He had played a more direct role in drafting his later correspondence with Dr B. He had reviewed the case thoroughly after Dr B's complaint and had discussed the matter in depth with both officer A and other colleagues, although those discussions had not been recorded on the file. In the absence of guidelines for dealing with complaints, it had been a matter for his judgement how far up the management line to refer the case. Although Dr B had asked for his complaint to be dealt with at a more senior level, that would, in practice, have meant referring it to the Director of RDD. Officer D's view had been that that was an inappropriately high level at which to consider the case. Officer D added that, having seen the new RDD guidelines on dealing with complaints which had been introduced since he had left the department, it seemed to him that his approach had closely resembled those new recommendations.

6.28 Officer D said that he had sought to terminate Dr B's correspondence for two reasons. First, because he had known that he would be leaving DH to take up another post and had wanted to leave matters as clear as possible for his successor. Secondly (and more importantly) it had seemed to him that as long as Dr B directed his energies toward publication by HMSO, he was being distracted from efforts to get his work published elsewhere. Officer D explained that that was why he had added his personal comment along those lines to his letter to Dr B of 24 January 1996 (paragraph 6.15). Officer D said that when doing that he had been acting more as an academic colleague of Dr B's than as a departmental officer.

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6.29 Officer D explained to the Ombudsman's staff that his comment about legal advice in his letter to Dr B of 12 February 1996 (paragraph 6.17) might have been based on the formulation contained in officer A's memorandum to him of 3 May 1995 (paragraph 6.13). Officer D accepted that there was a divergence between the solicitor's advice and what he had said in the letter of 12 February. Officer D said that in retrospect there could have been a fuller discussion between DH staff and Dr B about the reasons for their refusal to allow publication through HMSO. At the time in question officer D had been anxious to focus on the core issues in Dr B's correspondence in order to discourage him from fruitlessly pursuing publication through HMSO and thus missing out on opportunities to publish elsewhere. Officer D insisted that there had been absolutely no attempt on his part to 'cover up' any maladministration by DH.

Evidence from HMSO

6.30 In giving the Ombudsman's predecessor his comments on the complaint the then Chief Executive said that the effect of Crown copyright was that HMSO could publish only with the agreement of the responsible department, in this case DH. In Dr B's case HMSO had not realised until December 1994 that the material was Crown copyright. When DH had said that they could not endorse publication HMSO had had no choice but to withdraw their offer to publish Dr B's thesis.

6.31 Officer X told the Ombudsman's staff that HMSO's procedure on receipt of approaches such as Dr B's had been to submit the proposal to the Publications Development Group (PDG) for consideration. That group comprised managers from the publicity and sales areas as well as other publishing managers and senior publishing staff. The commercial viability of the proposed publication would be discussed, together with such issues as format, possible markets and publicity levels. If PDG as a whole felt that HMSO should proceed with publication the project would be taken forward, as was the case with Dr B's book. Officer X said that, unless there was an indication given to the contrary, she would assume that any work received for publication prepared by a civil servant or officer of the Crown in the course of his or her duties would be Crown copyright. She would assume that any author who did not fall within that description would be the owner of the copyright in the proposed work. Most of the publishing undertaken by HMSO originated within Government departments and was Crown copyright. In the relatively few cases where work came from another source, a suitable publicly-funded body would be asked to support publication through HMSO and the author would be asked to assign copyright to the Crown. That would normally be dealt with once HMSO had decided to proceed with publication. Dr B's first approach to officer X had been on 15 June 1994 (paragraph 6.7). She had acknowledged that letter on 30 June, advising Dr B of her intention to put the proposal before the next PDG meeting and stating the need for support from a publicly-funded body. At that stage she had assumed that the work was not Crown copyright since Dr B was not from within the civil service. Following the PDG meeting she had written to Dr B on 1 August to tell him of their decision to proceed with publication and to state that copyright would be assigned to the Crown. It was not until late December, when she and Dr B had discussed the draft agreement, that he had mentioned that the work might already be Crown copyright (paragraph 6.10). In a letter to the Ombudsman's staff the director of public sector publishing at SO Ltd, who had been officer X's line manager, said that HMSO's criteria about accepting material for publication had not changed as a direct consequence of the run-up to privatisation.

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Dr B's evidence

6.32 Dr B told the Ombudsman's staff that, although it would be unusual for a thesis to be published in book form, he had thought that his thesis would be suitable given its policy context. He had not read officer A's letter of 26 April 1994 (paragraph 6.6) as meaning that he should seek a publisher other than HMSO. They had been one of four publishers he had approached initially. The others had declined to publish his thesis. Dr B said that he had understood officer A's letter of 28 July 1994 (paragraph 6.8) to mean that DH would not usually endorse publication of work done for a higher degree, but they did not entirely rule out the possibility of publication of his thesis. He could not remember the details of his conversation with officer A in the intervening period but he thought that it must have left the door open for DH to provide him with an endorsement to publish, otherwise there would have been no reason to send officer A his letter of 3 August 1994 (paragraph 6.8). He had never asked for a preface from DH indicating that the findings of his study were of national importance and relevance. Dr B said that he had seen officer A's letter of 24 August 1994 (paragraph 6.9) as saying that DH were not willing to endorse publication of his thesis by HMSO, but officer A had not said that publication by HMSO would not be permitted even if the university were willing to satisfy HMSO's requirement for an endorsement. Accordingly he had seen no need to follow up officer A's suggestion of an alternative publisher (paragraph 6.9) as, with the endorsement from the university, he had thought that HMSO would publish his thesis.

6.33 Dr B also told the Ombudsman's staff that he was fairly certain that he had told officer X around June 1994 that copyright was owned by the Crown. He had taken the reference to copyright being assigned to the Crown in officer X's letter of 1 August 1994 as indicating that she had known that Crown copyright applied (paragraph 6.8). There had though been something about the draft agreement (paragraph 6.10) which had made him think that officer X had forgotten that Crown copyright applied. He had therefore tried to mention it as tactfully as possible in his letter of 20 December 1994 (paragraph 6.10). He had been very surprised to learn that officer X had not realised that the Crown owned the copyright. As the letter of 13 February 1995 from HMSO (paragraph 6.11) had included another draft agreement he had not expected any further problems.

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6.34 Dr B said that when he had received officer X's letter of 27 February 1995 (paragraph 6.11) he had telephoned her to ask why HMSO had not published his thesis. Officer X had told him that she had explained to officer A that HMSO were not seeking an endorsement, as the university had provided one, but officer A had not wanted HMSO to be associated with the publication of the thesis. Dr B had telephoned officer A on 3 March 1995 but she had given him no real reason why the thesis could not be published through HMSO. He recalled she had told him that he was experiencing the sort of difficulties which his peers had experienced much earlier. He had inferred from those words that she had been indirectly and maliciously referring to the length of time it had taken him to complete his thesis. He had asked officer A if he was entitled to a written explanation for her decision. She had agreed to send him one but it had never arrived.

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Later developments

6.35 After the Deputy Secretary had responded to the Ombudsman's predecessor (paragraph 6.19) he wrote to Dr B on 12 August 1996 to apologise for DH's failure to agree publication of the thesis by HMSO once the university had agreed to support it. He also apologised for DH's failure to investigate the case more fully and said that they would be prepared to tell any prospective publisher (including HMSO) that they were content to see it published. After receiving that news Dr B contacted HMSO but their successor SO Ltd declined to publish on commercial grounds. Dr B, when that became apparent, wrote to DH on 5 December 1996 to ask them to consider offering SO Ltd a subsidy to assist with the publication of the thesis. That DH declined to do, but said, on a without prejudice basis, that they were exploring the possibility of making a special payment to Dr B to compensate him for losses suffered in his dealings with them.

6.36 On 27 January 1997 Dr B wrote to the Deputy Secretary rejecting the idea that officer A had been under any doubt as to the nature of HMSO's request in February 1995 (paragraph 6.11). Dr B suggested that it was more likely that officer A had acted from malice and that officer D had then attempted to "cover up" her flagrant maladministration. Dr B said that his inability to publish his thesis had compromised his academic career (he had not held a university post since March 1995) and had thereby caused severe damage to his physical and mental health. The Deputy Secretary replied on 17 February that he had seen no evidence that officer A had acted from any malicious intent nor that officer D had sought to conceal any maladministration, and that DH rejected those allegations. He denied that DH had any liability for Dr B's failure to secure a teaching post, for his failure to obtain a publisher, or for the deterioration in his health. He repeated that any failure by DH to provide an adequate explanation of their actions was "due to confusion over precisely what was being requested, rather than any attempt to conceal maladministration". On 20 May Dr B wrote to the then Controller of HMSO (Residuary) asking that HMSO (Residuary) publish his book as originally intended. The then Controller replied on 21 May that HMSO (Residuary) did not have the authority or facilities to undertake general publishing and they were therefore unable to help Dr B. On 10 October the Deputy Secretary at DH offered Dr B a payment of £7,000 which he said was intended to compensate for DH's delay in agreeing to waive Crown copyright and their failure to make it clear to HMSO at the time that there was no objection to the publication of Dr B's thesis. The Deputy Secretary said the amount had been calculated on the basis of what it might have cost to have the thesis published privately. Dr B protested at that decision and on 9 January 1998 HMSO (Residuary) told him that although the matter was no longer an issue for them they had made contact with SO Ltd who had agreed to publish his work. (It was eventually published on 3 August 1998.) Dr B continued to complain to both DH and HMSO (Residuary) that actions for which they were responsible had had a devastating effect on his life and that he was entitled to financial compensation. He submitted substantial claims.

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Additional evidence from DH

6.37 During the course of the investigation DH sent the Ombudsman's staff details of the new internal review procedures introduced by RDD as a result of Dr B's case. Those procedures were, as DH explained, based around the principle that line managers should be informed of complaints, and that the Deputy Director or Director should be notified of any long-running or potentially serious complaint. Where a complaint is referred to DH by a Minister additional safeguards are brought into play, namely the prescription of the seniority of the officer handling the complaint (branch head) and an explicit instruction that the officer handling the case ought not to have been previously involved or have had any direct interest in the case. The Ombudsman's staff put it to DH that, even had the new guidelines applied at the time of Dr B's complaints, those complaints would have still been dealt with by the same personnel but for the fact that he had taken his complaint to a Minister. DH replied that that interpretation was correct and that RDD were now considering whether the safeguards applied to complaints received through a Minister should be applied more generally when a complaint was referred to the Director or Deputy Director. DH also said that RDD would be looking at the question of how best to amend their internal procedures so that DH staff would be clear that complainants should be made aware that they could take their grievance to the Ombudsman via their Member of Parliament.

6.38 DH were asked after officers A and D had given their evidence whether DH had a written policy on the publication of theses produced by students in receipt of a DH studentship, whether that policy distinguished between publication by HMSO and publication by other bodies and whether and in what regard that policy had changed. DH said that there was no written policy which specifically covered the matter, that officers A and D had based their views on what DH now accepted to be a misinterpretation of Dr B's request, that Dr B's case had no precedent and there was no guidance or policy specific to publishing research done by students on research grants funded by the department.

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Findings

6.39 When Dr B wrote to HMSO on 15 June 1994 he did not make it clear that the Crown through DH owned the copyright in any proposed publication of his thesis, although he did say that the study had been funded by DH (paragraph 6.7). It would have been helpful if officer X had used that information to clarify the ownership of the copyright in the thesis but she assumed that Dr B owned the copyright as he was not a civil servant (paragraph 6.31). Officer X told Dr B that HMSO would require an endorsement from DH or the university before publication could take place (paragraph 6.7). Dr B wrote to officer A on 5 July asking for that endorsement. He did not see officer A's reply of 28 July (paragraph 6.8) as ruling out the possibility of DH endorsing his thesis and on 3 August, following a telephone conversation with officer A, he wrote again (paragraph 6.8). He accepted that officer A's letter of 24 August meant that DH would not provide the necessary endorsement but did not realise that they were unwilling for his thesis to be published by HMSO. Having received an endorsement from the university, Dr B thought he had met HMSO's requirements for his thesis to be published. Even when HMSO found out that DH owned the copyright, they were prepared to proceed with publication until officer B of DH wrote to officer X at HMSO on 14 February 1995 (paragraph 6.11). So while HMSO's initial confusion over who owned the copyright did not help matters I do not see that as the cause of Dr B's difficulties. I do not find that HMSO were at fault when they did not proceed with publication after they received officer B's letter of 14 February 1995. Dr B's problems arose not from their actions (which accordingly I consider no further) but from those of DH.

6.40 The problems which led to Dr B's complaint had their origins in the actions taken by officer A. She was not helped in her task by the fact that DH had no written policy for publication of material from a research student's thesis, other than that in the 'conditions of support' document (paragraph 6.3 and paragraph 6.38). She later told the Ombudsman's staff that DH's practice effectively prevented an unamended thesis being published by HMSO (paragraph 6.22). Unfortunately she did not tell Dr B that in her letter of 26 April 1994 though, in telling him that DH would require to agree the draft version of his proposed book, she did not close off at that stage the possibility of DH's refusing to allow publication of his thesis by HMSO.

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6.41 When officer A wrote her subsequent letter of 28 July 1994 to Dr B, she was less neutral on DH's position vis a vis the proposed book. She said DH "would be quite happy to be associated with publication based on [Dr B's] study" although she qualified that by adding that she did not think that DH "would be able to give the type of support required to ensure it was published through HMSO" (paragraph 6.8). Not surprisingly, however, Dr B seized on the clear offer of DH's "association" which, as he stated in his reply to officer A of 3 August, was all that he understood HMSO to require (paragraph 6.8). Officer A's next letter of 24 August 1994 (paragraph 6.9) was sent after she had received internal professional advice from her colleagues. They had been asked to comment on the basis that Dr B wanted a preface from DH that his work was of national importance and relevance (paragraph 6.9). According to officer A, Dr B had asked her for just such an endorsement in a telephone conversation (paragraph 6.23). However, she made no note of that conversation and Dr B has denied ever having said such a thing (paragraph 6.32). As Dr B had made it quite clear in his letter of 3 August 1994 that he sought only such limited acknowledgement as HMSO required (paragraph 6.8), on the balance of probabilities I find his recollection of events to be the more likely. The responses of officer A's colleagues were bound to be coloured by Dr B's supposed desire for the preface but, despite that, two out of three of them supported some form of limited endorsement from DH (paragraph 6.9). I found officer A's letter of 24 August surprising in that it disregarded (and arguably misrepresented) that advice. The letter later written by officer B on 14 February 1995 (which officer A saw and approved - paragraph 6.23) was similarly misleading in saying that DH's "unanimous" advice was that they could not endorse the publication of Dr B's book by HMSO (paragraph 6.11). I criticise officers A and B for those letters.

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6.42 The then Deputy Secretary ascribed officer A's actions to a misunderstanding over the precise terms of the support or endorsement which Dr B wanted from DH (paragraph 6.19). Officers A and D do not accept that. When speaking to the Ombudsman's staff officers A and D maintained their opinion that publication of Dr B's thesis in book form by HMSO would have been contrary to the then publication policy of DH, which they said they were responsible for determining and operating (paragraphs 6.23 and 6.26). DH have said that there was no written policy which specifically covered the matter, that there was no precedent to Dr B's case and that there was no guidance or policy specific to publishing the research of DH-funded students such as Dr B (paragraph 6.38) apart from the 'conditions of support' document (paragraph 6.3). DH subsequently took a different view of the publication of Dr B's work by HMSO than that maintained by officers A and D. As Dr B's case was without precedent and there was no relevant specific guidance or advice I do not criticise officers A and D for initially taking a view different to that which DH eventually followed. What, however, of their actions in relation to what they understood to be DH's policy? Despite her stated understanding of the publication policy, officer A sought the opinions of her colleagues about the proposed publication. On balance those colleagues concluded that publication could proceed (paragraph 6.9). Officer A disregarded those views and I have criticised her for that. Additionally neither she nor officer D ever told Dr B that it was (their understanding of) DH's policy that had led to the objection to him using HMSO as a publisher. I therefore find DH's actions in denying Dr B the opportunity to publish his thesis through HMSO, despite internal departmental advice to the contrary, maladministrative because the reason for so doing was not made clear to Dr B and the process by which that decision was made by officer A was flawed. I am pleased to see that the Deputy Secretary has recognised that there should have been no bar to HMSO publishing Dr B's thesis (paragraph 6.20). Unfortunately, with HMSO privatisation looming, it was by then too late for Dr B to publish through HMSO - while its successor, SO Ltd, initially declined to publish the thesis after conducting viability studies into its likely profitability (paragraph 6.35). HMSO (Residuary) subsequently arranged for SO Ltd to publish Dr B's thesis after all and they did so on 3 August 1998. I welcome that.

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6.43 I turn now to the handling by DH of Dr B's complaint about their refusal to allow HMSO to publish his thesis. Officer A, who in March 1995 (by not denying his suggestion that such action would be appropriate) had led Dr B to believe that he would be provided with a written explanation, decided on 3 May (paragraph 6.13) not to write to him. In the meantime she had received advice from the departmental solicitors that, as no cost would fall to DH and they were not being asked to endorse the views of the thesis, it seemed difficult to identify a sustainable objection to the proposed publication. Despite being given that clear advice, officer A told officer D "it appears this is a fairly clear cut case which is being pursued pointlessly". Officer A did not record the telephone conversations that she had with the solicitor or the university (paragraph 6.24) which led her to make that statement. Officer A did, however, record her proposal not to write further to Dr B, which was endorsed by officer D. I consider officer A's decision not to write to Dr B to have been high-handed and indefensible and I consider that she misled officer D by misrepresenting the solicitor's advice. I criticise her strongly for that.

6.44 For his part, officer D showed an error of judgment in relying too much on the evidence of officer A (who was the subject of Dr B's complaint) rather than reviewing the case in more depth personally. When Dr B expressed his dissatisfaction with the initial response officer D should have ensured that the complaint was reviewed by someone other than officer A. Officer D failed to record the discussions he had about the complaint and I could find no evidence that he had sought advice from the department's solicitors to support the statement he made, in his letter to Dr B of 12 February 1995 (paragraph 6.17). On the evidence available I do not believe that officer D carried out a sufficiently thorough investigation and he therefore missed the opportunity to act on the advice given by officer A's policy colleagues and the department's solicitors about the publication of Dr B's thesis. I consider that officer D's actions contributed to DH's maladministration and I criticise him for his poor handling of Dr B's complaint. I suggested to the Permanent Secretary that he might review the effectiveness of RDD's new complaints procedures (paragraph 6.37) to ensure complaints are better investigated in future. In reply he said that DH had received very few complaints since the new procedure was introduced in 1996, and none of this seriousness. He has arranged to receive a full report from the Director of Research and Development in twelve months time to make sure that the new arrangements are working properly.

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6.45 Dr B has complained that DH's decision not to allow publication of his thesis by HMSO had had an adverse effect on his life in general (paragraph 6.36), considering publication of his thesis when he originally sought it would have been likely to enhance his academic reputation. The delayed publication might have less impact as the relevance of some of the work involved may have decreased with the passage of time. I suggested to the Permanent Secretary that DH should consider making a compensatory payment to reflect that and also have regard to the distress caused to Dr B by the maladministration associated with the initial decision to prevent publication by HMSO and the subsequent very poor handling of his complaint. In reply the Permanent Secretary said that, given that Dr B's thesis had been published, the basis on which DH had computed the proposed payment of £7,000 was no longer appropriate. Nevertheless DH were still prepared to make an ex gratia payment in recognition of the worry and distress caused to Dr B by their handling of his request for the release of Crown copyright and the associated delay before publication. The Permanent Secretary went on to say that normally payments of that type by Government departments would be quite modest but in view of the offer of £7,000 already made he would be prepared still to make that payment.

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Conclusion

6.46 DH's actions in denying Dr B the opportunity to publish his thesis through HMSO were maladministrative because the reason for so doing was not made clear to Dr B and the process by which that decision was made by officer A was flawed. I criticised officer A for disregarding the views of her colleagues that publication could proceed. I did not find HMSO at fault when they did not proceed with publication after they received officer B's letter of 14 February 1995. I am pleased to learn that SO Ltd have now published Dr B's thesis. DH did not handle Dr B's complaint at all well and I criticised officers A and D for their part in that. The Permanent Secretary has said, notwithstanding that publication has now taken place, that DH are still prepared to make a payment of £7,000 to Dr B. I am pleased that DH are prepared to make an ex gratia payment to Dr B for the reasons given by the Permanent Secretary. I see the quantum of that payment as a matter for DH having regard to all the circumstances of the case and I do not question the Permanent Secretary's decision which, with the apologies already offered by the then Deputy Secretary (paragraphs 6.20 and 6.21), I see as a satisfactory outcome to a justified complaint.

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Appendix

Terms used and their meaning

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Short text of this investigation

Last updated: 19 April 2006