Ombudsman Peter Tyndall calls for role to be expanded to the health service, prisons, and the asylum system

Caroline O’Doherty talks to ombudsman Peter Tyndall on his role and how he wants to see it expanded to address problems in the health service, prisons, and the asylum system
Ombudsman Peter Tyndall calls for role to be expanded to the health service, prisons, and the asylum system

Peter Tyndall has to remind himself of one thing before he goes into work each morning — he’s only seeing what goes wrong.

Otherwise, in his role as Ombudsman, he could be convinced that the public sector is rife with inept, uncaring officials who run for cover whenever they make a mistake.

Not true, he stresses. Well, apart from the running for cover, which is a habit that’s still too prevalent for his liking, particularly in the health services.

“One of the things we’ve been talking to the HSE about is the poor quality of some of the apology letters we see which exacerbate things,” he says.

“It’s the letter that says: ‘I’m sorry if you feel unhappy’ as opposed to: ‘We got it wrong’. They are still doing that and it really does make things worse.

“We’ve developed advice on apologies it’s on our website — and we’ve agreed with the HSE that they would issue that advice to their staff.

“But we’ve also asked that they come up with some good examples of letters that have sent out, although I don’t want to use a template letter because one letter is not appropriate to every situation and it doesn’t feel genuine. A good personal letter can make all the difference.”

Often times the problem is not the personnel, but the rules they have to apply. For example, many complaints about the Department of Social Protection arise out of changes to benefits criteria.

“The Department of Social Protection accounts for a very high number of the complaints we receive but that’s mainly because they deal with so many people,” says Mr Tyndall.

“What tends to happen is a change to a rule around eligibility cuts someone off from payment or the department tries to reclaim overpaid monies because a rule change wasn’t applied and this can be years and years after the overpayments began.

“So the problem arises, not because someone in the department hasn’t followed their own rules — it’s because they have followed the rules.

“My concern with going after someone for a historic debt is that you couldn’t claim it through the courts because statutory limitations would have kicked in. And also, if you go after that person now, you could be pushing them over the poverty line.

“So of course we look at the rules and see were they followed but it’s also my job to say, is it fair, is it just? It’s not just to say, was every legal requirement observed? It’s also, was the outcome fair or just?

“We have been talking to the department about putting guidance in place about how discretion is used because, despite the number of complaints we get, we don’t see a pattern of failures by the personnel. We just see that they need to be allowed to use more discretion.”

What Mr Tyndall considers the overzealous pursuit of overpayments has also brought another department under his spotlight, this time the Department of Education.

Susi (Student Universal Support Ireland) got off to a shaky start when it was set up in 2012 to take over the administration of third-level student grants from all the local authorities and VECs that formerly ran their own schemes.

Between delays in payment, computer meltdowns, and eligibility mixups, some students were unfairly left without grants but others received grants which Susi subsequently declared they shouldn’t have.

Trying to get the money back from students who are still in full-time education or are on low-income entry level jobs or have emigrated has proved challenging and Mr Tyndall isn’t convinced the action is justified.

“We are having some difficult conversations at the moment about that,” he says. “These people filled the form out properly and they did absolutely nothing wrong. Susi are sympathetic to their plight but the Department of Education is taking a very hard line on it and we’re very unhappy about it.

“The right to good administration exists in European law — which Ireland signed up to with the Lisbon Treaty. People should be able to expect that proper decisions will be made and implemented properly.”

For all the difficult conversations, there have also been some very productive discussions, and Mr Tyndall cites his engagement with the private nursing home sector as a highlight of the past year.

Since August, his powers have been extended to include complaints about private nursing homes that receive public funding, either through subvention or the Fair Deal scheme, so that brings the vast majority of them under his remit.

In advance of the change, he met with the sector and set about developing a standard complaints procedure for all operators to use. It should have the dual effect of helping resolve issues at local level without need for involving his office and, where matters are brought to his office, it provides a clear checklist for his investigators so it’s clearer to see if and where failings arose.

“It was very well received,” he says. So much so that it has buoyed his longer term ambition to introduce a standardised approach to complaints, not just across individual sectors, but across all public service providers.

“In general most complaints mechanisms are different because they’re different,” he says. “There’s no rhyme nor reason to it.

“If everybody is using broadly similar complaints mechanisms, then you can produce training materials and run training courses that any public servant can have access to.

“You can also get comparable data across the public service — each hospital, each local authority and so on — so you can really see trends.”

It sounds simple, but standardising systems and practices across the vast array of public services is easier said than done. Across the HSE alone, there are some 800 people who have been dealing with complaints.

In May the Ombudsman published a report, ‘Learning To Get Better’, accompanied by some affecting short films, capturing the frustrations and despair of ordinary people who tried to raise issues or get explanations from hospitals and other healthcare providers about some aspect of a loved one’s care only to hit brick walls of bureaucracy, silence, fear of litigation, and, in some cases, apathy or hostility.

Since then, Mr Tyndall has been meeting with the heads of the seven hospital groups and nine community healthcare organisations that between them cover all of the acute and primary care services in the country to act on the report’s recommendations.

“It’s going to take time but we’re making progress,” he says. “We’re getting some reduction in the 800 people dealing with complaints. At least now we have designated people instead of everybody doing it as a sideline and few doing it very well.”

He has more radical plans too — he wants to be allowed investigate complaints about the clinical judgment of medical practitioners rather than simply the administrative failings.

HIQA, the health standards agency, can’t accept individual complaints and any investigations it carries out are usually prompted by a request from the Minister for Health.

The various professional bodies, such as the Medical Council and Nursing Board, do take individual complaints but the bar is set very high for the level of failure alleged because any subsequent fitness to practice procedure must take the form of a public hearing with the ultimate sanction being the loss of a licence to practice.

Mr Tyndall says there are many cases where an individual’s fitness to practice is not in doubt but questions need to be asked about a particular decision they made about a particular patient on a particular day.

“For example, somebody’s on a waiting list to have a scan because of a lesion and they’re told that they’re on the urgent list but a consultant reviews that list, decides that they don’t need to be on the urgent list and puts them on the general list,” he says.

“It’s the difference between being seen within weeks or within four years in the particular instance we’re aware of. That’s an exercise of clinical judgment that needs to be examined. It’s clearly not for the Medical Council and it’s not for HIQA so it goes nowhere. Those are the kind of cases we should be dealing with here.”

Talks have taken place with the Department of Health, HSE, and Medical Council, and some work has begun on compiling a potential panel of experts in different health fields from the UK who could be drawn upon for investigations, but it’s in the early stages. And then the subject will have to be broached with the medical unions.

“People will be nervous about change but we will have to do the kind of work we did on the nursing home front, talking to people to explain the jurisdiction,” says Mr Tyndall.

“The critical thing about an Ombudsman investigation is we’re not investigating an individual practitioner or their fitness to practice, we’re investigating an incident of care and so the reports that we produce will not identify the medical professional involved.

“Also, ombudsmen don’t operate on some platinum standard of care. You’re looking at what would a reasonable practitioner have done in those circumstances. It’s not the ‘benefit of hindsight’ type of investigation.”

He also wants to be given legal powers take on complaints from asylum seekers in the direct provision system, and from prisoners, and though it has been ruled out, he still hankers after a change of policy that would allow him act as a consumer ombudsman too.

Apart from the resource implications for his office — he has just 50 staff at the moment — the question arises whether the extra powers would be necessary in the era of Twitter, Facebook, and the ever lively Liveline, which are increasingly the forum of choice for members of the public to vent their frustrations about poor public service.

“I have no issue at all with people going down the route of taking their complaint to the public airwaves — some of the complaints we’re dealing with now have been out in public already,” he says. “But most people are quite private and don’t want to become a public figure. And the difference with us is that we don’t just want to resolve this immediate problem.

“We want to find out why the problem arose and have action taken that will prevent a recurrence so it’s more longterm than a service provider acting to satisfy the immediate problem because they’re being made to look bad on social media.”

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