In this blog post, Della Reynolds, Co-ordinator of the PHSO Pressure Group, explains why a focus on restorative justice would help empower complainants who use ombuds schemes.
By Della Reynolds
Legal definition: The need to repair the harm done through a process of negotiation, mediation, victim empowerment and reparation.
Colloquial definition: Don’t get mad, get even.
Here in the UK we live in a democracy. We relinquish individual control to those in authority, who in turn protect the citizens from the abuse of power. At the apex of this process sits the Ombudsman: free to use, independent of government and able to give impartial and independent adjudication in matters of dispute. Much like an insurance policy, it provides a feeling of safety, and much like an insurance policy it doesn’t always pay out.
The first problem with using the ombudsman is that they control the rules and the rules change according to their control. Although the ombudsmen state that they will adjudicate on cases of maladministration, there is no definition of ‘maladministration’ or ‘investigation’ or ‘remedy’. It is whatever the ombudsman determines it to be on the day. More than simply moving the goalposts, effectively this is a game played without any goalposts.
You may consider that a breach in policy would be maladministration, only to find that policies are simply guidelines. No case to answer. You may provide evidence which demonstrates that the law has been breached, only to be told that it is not the ombudsman’s place to determine the law. No case to answer. Like a badly aggrieved child you approach your parent ombudsman with tales of woe and the evidence to prove it, only to be told that it is just your ‘perception’ of injustice. No case to answer.
No victim empowerment here; instead you become a victim all over again, a victim of the complaint process. Many regret that they ever took a case to the ombudsman, as it served only to compound their emotional stress; others wish that the body didn’t exist at all rather than raise false expectations.
Some of the key obstacles faced by complainants are:
- lack of communication – you have to drive the case forward
- secrecy – no knowledge of statements made by public body, though they are given access to your evidence
- manipulation of the facts
- factual error
- staff away on leave regularly or case passed between staff so you start again with new case worker
- blanket statements from staff which do not address key points raised
- acceptance of statements made by public body at face value
- refusal to release details of clinical advisor used – report written by clinical advisor – questions asked of clinical advisor or evidence supplied to clinical advisor
- no action taken if a service delivery complaint made
- any complaint made about the decision will be met with suggestion to go to judicial review
Before we had an ombudsman to settle disputes, communities had their own style of restorative justice, for the concept is as old as time itself. It might be payment for a wrong, tar and feathering, or a turn in the stocks on the village green. These remedies may have been short on negotiation and mediation, but they certainly paid out on victim empowerment and reparation.
As more citizens realise the futility of trying to meet the high threshold of official maladministration, they are turning to their ‘digital democratic tools’. Almost anyone can set up a website berating the public body concerned. Personal naming and shaming on Twitter is the equivalent of the stocks of yesteryear – the rotten tomatoes replaced by 140-digit character assignations.
The absence of authoritative justice has left a vacuum which is being filled by ‘TripAdvisor’-style sites such as Patient Opinion for the NHS or forums such as Ethical Consumer. These may not deliver anything in terms of reparation but do a great deal to provide victim empowerment, which is not to be underrated.
The need for research
Research is needed on the views and experiences of complainants. One approach would be to monitor real case studies. Complainants could be asked at the outset what their expectations would be, and their progress monitored. The obstacles listed above could form a series of questionnaires to gather qualitative data, which could be used as a counterbalance to the enormous volumes of quantitative data released by ombudsmen on an annual basis. The research would have to run for over a year and possibly much longer as most cases take at least 12 months to go through an investigation to final report stage.
For the vast majority of citizens, the present Ombudsman system fails to restore justice or provide remedy. This leads to a feeling of helplessness and righteous anger. Let down and abandoned by those in authority, more people are finding alternative means to address their need for empowerment. If this situation is not addressed when the new Public Service Ombudsman is formed, there may be a whole new meaning to the phrase ‘alternative dispute resolution’.
About the author:
Della Reynolds is Co-ordinator of the PHSO Pressure Group, which has been in existence for two years. She writes: ‘We are citizens who have come together to fight for reform of the Parliamentary and Health Service Ombudsman. All of us have been badly let down by the complaint investigation process and we have no confidence that this body is capable of internal reform. We are the service users, half of the complaint-handling process, yet our voice is hardly heard. Individually our correspondence to Parliament was mainly ignored. Now that we have formed a Pressure Group we have met with Jeremy Hunt, Health Secretary and Oliver Letwin from the Cabinet Office. We have contributed to select committee public consultations – PASC and HSC and also to the Cabinet Office consultation regarding the formation of a new Public Service Ombudsman. We attend conferences and APPG meetings held in Parliament. We are experts by experience who deserve a place at the table. You can see more about our campaign on our website http://phsothefacts.com/.’