I am writing further to your request of 21 October 2015 in which you asked for information about the way PHSO handles complaints under the provisions of our legislation relating to secrecy of information. In particular you want to know how we would respond in a situation where a complainant has authorised a representative to act on their behalf in their complaint, including all correspondence.
You have also asked whether there has been any judicial review about a breach of our secrecy provisions.
I have considered your request under the Freedom of Information Act 2000 and can confirm that we hold the information you have requested. See below for my response to your questions. I have also attached the following documents which may provide you with useful information on how we handle complaints, including where a complainant has authorised someone to act on their behalf:
- Briefing Note – Who is a suitable complainant?
- Briefing Note – When may someone complain for or represent someone else
- Investigation Manual 6.0
First of all, it should be noted that the secrecy provision to which you have referred is section 11 of the Parliamentary Commissioner Act (PCA) 1967. The equivalent provision in the Health Service Commissioners Act (HSCA) 1993 can be found at section 15.
Our legislation addresses the circumstances you have outlined in your request. It is not uncommon for a complainant to authorise another person to act on their behalf in making a complaint to us. Examples include a grown-up son acting on behalf of his mother who has a mental disability, or a social services staff member representing a client who is a vulnerable person.
A complainant can choose to authorise someone to represent them for all or part of a complaints process. Under section 7(2) of the PCA 1967 and section 11(3)(b) of the HSCA 1993 the Ombudsman has the discretion to determine whether to allow a person to act as a representative on behalf of a complainant.
In exercising our discretion we may need to take particular care where there is an indication that:
- there may be a conflict of interest between the complainant and their representative, and
- it would give the representative access to confidential information about the complainant that the representative should not have.
The secrecy provision of the PCA 1967 and the equivalent provision in the HSCA 1993 prevent the disclosure of information obtained in the course of or for the purposes of an investigation, except in certain circumstances. One of these is where the sharing of this information is for the purposes of the investigation. Sharing information with a complainant’s representative would in most cases be considered as being for the purposes of the investigation.
I have set out examples of this from paragraphs 95 and 140 of the attached Investigation Manual below:
[95] Draft decisions can also be shared with advocates or other representatives, providing we have appropriate authorisation from the complainant for them to act on their behalf.
[140] In all cases where the complainant has been represented by an advocate or other professional representative we should (providing we have written authorisation from the complainant for the representative to act on their behalf or to receive copies of all correspondence) also send them a copy of the final report.
As you can see, we can only send information to a representative if we have the appropriate authorisation from the complainant for the representative to act on their behalf or to receive correspondence.
The complainant’s consent is a very important factor in determining whether we will allow a person to act as a representative on their behalf. However, even where the complainant has authorised a person to represent them in their complaint, it does not always follow that we should give personal information about the complainant to the representative. As discussed above, the Ombudsman has the discretion to determine whether or not to allow a person to act as a representative. Additionally, the Ombudsman may choose to limit the scope of that representation.
Finally, in relation to your question about judicial review, I can confirm that there has not been any judicial review concerning the breach of either of the relevant provisions against the Parliamentary and Health Service Ombudsman.
I hope the information I have provided is helpful. If you have any further queries, or would like to ask for a review of my decision, you can do so by writing to foiofficer@ombudsman.org.uk.
If you still have concerns after that, you can ask the Information Commissioner’s Office to look into your case. Their contact details are available on their website.
Yours sincerely,
FOI/DP Officer