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Joint Committee on Public Service Oversight and Petitions debate -
Wednesday, 30 Sep 2015

Office of the Ombudsman Reports: Mr. Peter Tyndall

The committee is now sitting in public session in its capacity as the Joint Committee on Public Service Oversight and Petitions. I wish to apologise to the Ombudsman, Mr. Peter Tyndall, and his team for the delay. We have in these Houses an unfortunate practice where committees sit while the Houses are sitting. This is not the case in other administrations. If Mr. Tyndall had any opportunity, as Ombudsman, it may be something he would wish to comment upon at some stage.

The committee, as always, looks forward to his presentation. The committee is very pleased to welcome the Ombudsman, Mr. Tyndall, who will make a presentation on the issues addressed in his 2014 annual report. He will also report on the complaints handling system for public hospitals, Learning to Get Better. Mr. Tyndall is accompanied today by Ms Jacqui McCrum, director general and by Mr. Tom Morgan, senior investigator at the Office of the Ombudsman. I thank the witnesses for forwarding their presentation which has been circulated to members.

Mr. Tyndall, who was appointed Ombudsman in 2013, has previously held the posts of chief executive of the Welsh Arts Council and head of education and culture for Welsh local government. The committee is keen to hear his report on the issues he has addressed over the past 12 months and also his views on establishing a comprehensive complaints handling system for public hospitals, an issue he has raised with this committee on previous occasions.

Before commencing I must inform witnesses that, by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to this committee.

If witnesses are directed by the committee to cease giving evidence on a particular matter and continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. Witnesses are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. I invite Mr. Tyndall to give his presentation.

Mr. Peter Tyndall

I welcome the opportunity to discuss the annual report and the report entitled, Learning to Get Better. Given the constraints on the committee's time, and I appreciate the difficulties it is labouring under, I will keep my presentation brief to allow maximum time for questions.

It was a very busy year, as the committee will see. Much of the growth we experienced in the number of complaints was probably attributable to the number of new bodies that came into our jurisdiction. It was a very smooth transition in bringing new bodies into our jurisdiction. Some of the themes I have previously spoken to the committee about came to pass during the year. The casebook celebrated its first anniversary. Introducing the casebook was one of the commitments I gave when I first came here and I hope the committee finds it useful in its work.

The increase in the year was 11%, which was one of the biggest annual increases we have seen. It posed some challenges for us in terms of dealing with the volume of complaints but in general, we are dealing well with the volumes that reach us, although we did have some difficulties with performance occasioned by some experienced members of staff retiring at the same time, which caused us certain challenges. Members will see the details of where the complaints were, against who they were made and the outcomes were included in my remarks. I will not go through them in detail here. They are also included in the annual report.

As part of our work, we see difficulties with particular agencies that are systemic. I have mentioned a few of them in my remarks. Tusla is one particular example. We continue to have difficulties with the way particular cases are handled where adults are accused of child sex abuse. While I would not for a moment want to do anything that would undermine the measures put in place to protect the safety of children, it is very important that people facing such serious allegations are also treated fairly and expeditiously and this has not always been the case. We had a number of constructive meetings with Tusla to try to address these matters. We have made some progress but it is fair to say that there is still work to be done.

The committee recently took evidence from the Secretary General of the Department of Health about the mobility allowance and motorised transport grant schemes. The committee was reassured that progress is being made. I accept that this is the case. I think we would all take the view that it would be much better if the matter had been concluded by now. I can only hope that the committee's intervention will lead to an early satisfactory conclusion to that matter. I continue to hold it under review.

One of the issues I previously spoke to the committee about is the fact that my remit did not extend to private nursing homes. I am very pleased that this has now been changed. We ran a series of seminars around the country for the proprietors of homes. One of the other themes I have talked to the committee about is standardised complaint handling. As part of taking the private nursing homes into our remit, we published our first model complaints policy and this is being adopted by the private nursing homes in dealing with complaints. This will mean that not only can people come to my office where previously they had no access to independent redress, they can also have some assurance as to the process they can expect the private home to follow when they first deal with the complaint. It is a substantial piece of work. It will be some time before we see the impact in terms of volumes of complaints but we are very pleased that this has come about.

Equally, I attended the launch by the committee of its report into issues around direct provision. My predecessors and I have strongly made the case that people in direct provision and people using the immigration system generally should have the same access to the Ombudsman as people using any other public service. We are pleased that the committee and the judicial inquiry concluded that this should be the case. We are looking to have a dialogue with the Department of Justice and Equality to progress that but I would welcome the committee's continuing support. It still seems that there are groups of people, such as prisoners, who are not in its jurisdiction who should have access to the services of the Office of the Ombudsman.

The cases the committee sees before it speak for themselves. I will not go through them in detail to allow members time to get around to questions. In respect of Learning to Get Better, I want to highlight the fact that this is the first "own initiative" investigation to be undertaken by the Office of the Ombudsman in Ireland. The power has existed for some time but it has not been exercised. In exercising the power, I have been looking to those individuals who may have difficulty for one reason or another in bringing complaints to my office. The kind of groups we are looking to for future initiatives could be homeless people or people with intellectual disabilities - people who for one reason or another are less likely to be able to complain. That seems to me to be the most appropriate exercise of the power.

The report looked at why we were getting low volumes of complaints about health care, which has been a concern of mine because I did not believe that this reflected high standards within the health service. I believed there were factors operating that were discouraging people from complaining to my office. The report identified a number of them, not least the fact that people were afraid to complain because they feared negative repercussions for themselves or their loved ones if they did so. Unfortunately, we did get some examples.

This has been a particularly innovative report. It sparked a lot of interest from other ombudsmen's offices internationally because we used a set of techniques that are not normally used by ombudsmen. We invited members of the public to come forward to the office and say what their experience of complaining had been like or if they had not complained, the reason they had chosen not to do so. We held focus groups. We went into a selection of hospitals and looked at complaint files to see how they had been handled. We did things like review websites to see how easy it was to find out how to complain - not very easy was the initial conclusion. We found that signposting to my office was not happening as it should be. We have addressed all of those. The other thing that was innovative about it was that we did work with the HSE. We shared the draft recommendations of the report so that it could agree to implement them at the point it was launched. It has agreed to do so. However, we have met with it and requested a series of action plans. We have said that we will want updates on the implementation of those action plans and that at a suitable period, perhaps a year after the action plans have been received, we will repeat the investigation on a smaller scale to make sure that the reassurance we have received is reflected in practice on the ground.

I will stop at this point. I know it is a whistle-stop tour but in fairness to the members, keeping it brief is probably preferable.

Before I let my colleagues in, I have a few questions to ask. I commend the Ombudsman on the Learning to Get Better report. I know that from the get go, this is an issue he has committed himself to changing. I commend him and his team on the progress he has made. However, I would relate to him my experience. As he knows, it has changed from dealing with individual hospitals to dealing with hospital groups. With the centralisation of administration, I have found that to be very frustrating as a public representative. Obviously, all that we can do is clarify a patient's rights and issue. As public representatives, we cannot get something to which a person is not entitled but I believe we have an important role to play in terms of our constituents.

In my experience, it has got much worse in terms of quickly getting clarification and answers as a public representative around somebody's experience within the hospital. I have had a poor experience in recent times in this regard. I ask that this be relayed by Mr. Tyndall's office to the various hospital groups. I will not name the hospital or group but, in my experience, there has been a dramatic change in comparison with the past. One could approach an advocate or an office within the hospital that would handle one's concern. Now one is directed to a busy office and it is at the mercy of the gods whether one gets a response. That is not acceptable, and, in respect of the change Mr. Tyndall is trying to bring about, I wanted to relay my experience to him. Perhaps other members would like to comment on that issue.

I thank the Ombudsman. The fact this is the first own initiative, so-called, taken in 30 years is worthy of recommendation. Mr. Tyndall made a number of recommendations which were accepted in full by the HSE, and he asked its officials to put the complaints procedure in place. What timeline has he sought? Given the Ombudsman is the last resort rather than the first, if the HSE starts to flag that complainants have recourse to the Ombudsman, is he inviting a channel of complaint? These are relatively minor issues but I do wonder.

Mr. Peter Tyndall

We have made clear that we have provided guidance as to how signposting should be done. For instance, we have provided standard text for use on websites and letters which makes clear that, in the first instance, people should try to resolve the matter locally, and if they fail to resolve the matter locally, it should come to my office. We have been worried about inconsistencies in referral by hospitals to the HSE review process. Some hospitals were referring while others were not and, by and large, the HSE review process was not proving an effective channel. We are content, therefore, that once there has been an attempt to resolve the matter locally, it should come to my office. The bigger advantage for us is that the subject matter of the complaint is usually fresher in the minds of those concerned than if it has gone through a lengthy process.

The biggest problem we have hit in terms of dealing with consistency has been the number of people dealing with complaints within the HSE. In the longer term, we think it is better that there should be some professionalisation of that process and that the people dealing with complaints should be of sufficient seniority because many of the people we were dealing with could not get responses, for instance, from consultants who would not deal with somebody whom they felt was insufficiently senior to ask questions of them about their practice. In the longer term, we need to get the sense of having a smaller number of better qualified people doing it as their full-time job rather than many people doing it as a small part of their other duties and who have no expertise or clout. We will take time to move them from where they are to where they need to be.

Coming back to the Chairman's point, I have not noticed greater delays for us in getting responses. It is very much a curate's egg. Some people are prompt and they are the same people who have always been prompt while others are slow and they are the same people who have always been slow. Our IT systems are elderly and creaking and I want to introduce a measure of how long it takes me to get responses from individual bodies within remit and to publish the statistics about that in order that we can highlight areas of consistent bad practice - a league table - and then tackle the areas where it is worst. However, I am interested in the Chairman's comment and I appreciate he does not, for the moment, want to mention the particular group. I am happy to have some conversations outside of the meeting to see if there is anything we can do to address the problem.

I asked about the timeline. Mr. Tyndall believes the HSE will put a robust complaints system in place, but that will take a long time and he referred to the need to professionalise it. Will it take a year or five years?

Mr. Peter Tyndall

We asked for action plans by the end of next month and I expect to see the complaints system in place within 12 months of that. It will not happen overnight.

Twelve months is reasonable. My fear is the lack of professionalisation and the fact it is a part-time job for some people. They do not see complaints as a priority and if anything else comes in, it will always have priority over sorting out the complaints system, which will then fall to the bottom. We will never get a robust system established on that basis.

Mr. Peter Tyndall

If it is of any reassurance, the first national meeting of complaints handlers, which will be a smaller meeting than previously when one would have needed Croke Park, is to be held within weeks and somebody from my office will be present to talk about our expectation.

Professional complaints handler is a new job title.

Mr. Peter Tyndall

It will not be professional.

Mr. Peter Tyndall

If a hospital group is large enough to justify having a department with people to deal with complaints, I have made it clear that it is not to mean that there should not be somebody in each major hospital, just that they should be part of a team with somebody clearly heading it up. Otherwise these complaints will just get lost.

The committee will compile a report on the waiting times people experience when they engage with Departments and other public bodies. We are monitoring our own experience as part of that.

It is a good initiative. According to the Ombudsman's findings, people are afraid to complain because they believe nothing will change if they complain, and they find it difficult to discover how to complain, which is not a positive view of the complaints mechanism in our health system. Will the new hospital trusts which are being set up automatically fall under the Ombudsman's remit as new entities?

Mr. Peter Tyndall

Yes. It is not a good picture. A set of solutions is recommended in the report. For instance, on the issue of people not believing that anything happens, having posters that say "You said..." or "We did..." can give a great deal of reassurance to people that their complaint will make a difference.

We made a few recommendations about the nervousness. One of them, clearly, is that there needs to be a culture evidently in place that welcomes complaints. People should be invited to comment and it should be easy to comment. Equally, the issue of advocacy is important and we have made it clear that advocates need to be available. There is a limited and patchy availability of advocacy services at the moment, but for many people in emotionally trying circumstances trying to construct a complaint in a scenario where they feel such a large imbalance between themselves and the hospital having somebody there to help them is also important. As the Chairman intimated, the role of Members as elected representatives is also important in helping people to voice their complaints.

I am delighted by the comments of the Ombudsman. I sit on the Joint Committee on Health and Children and representatives of maternity hospitals and parents who have lost babies have appeared before us to give evidence.

What was most hurtful was that nobody spoke to them or admitted guilt. I listened to a programme on radio while travelling to work today and a solicitor was advising people that if they were involved in an accident, they should not admit liability. That is probably the case in the hospitals also where people might be protecting themselves. My difficulty with that is that if someone was damaged at birth or involved in a car accident, it might be ten years down the line by the time he or she gets compensation. The families needed that money for rehabilitation and other medical expenses but the money was not available at that stage. Mr. Tyndall's points in that regard are excellent.

Regarding the particular hospital, its representatives gave evidence that it had a type of management board that dealt with the complaints and yet it failed miserably. When the Health Service Executive, HSE, representatives were giving evidence before the committee, nobody mentioned that the Ombudsman had been in and that it had agreed a protocol. I did not hear about that until today. What is the reason for that information deficit? Why was that not said?

Mr. Peter Tyndall

One aspect that concerns me is that often we hear of these situations in the hospitals or, as we have heard, in State nursing homes, which are in my jurisdiction, but none of the complaints ever reached my office. Some of them have gone the road of litigation, which would take them-----

Mr. Peter Tyndall

They have chosen to go to the courts rather than to my office but my great concern is that people are not being signposted. That was something we found evidence of, and we will continue now to make sure that is properly addressed. At the very least we have seen, for instance, changes to websites. The HSE website now signposts properly, which it did not do when we looked at it initially, but it will be a question of vigilance.

We have to recognise sometimes that although somebody is not saying, "I have filled out an official complaint form", the comments he or she has made about the service constitute a complaint and it should be dealt with as a complaint and due process followed. We find in some of these instances that people have raised concerns but that they have not been dealt with as a complaint and, therefore-----

Mr. Peter Tyndall

-----the person has not been told that if he or she is not happy with the hospital's response, he or she can come to my office. Again, that is the reason we are looking to get some of the detail. That is why we brought out the model complaints policy and ran it with the private nursing homes. Ultimately, we want to run that across the whole of the public sector because issues to do with what is a complaint are at the heart of this process. If somebody is not told that his or her remarks are being treated as a complaint, it just gets lost. It has no locus within the hospital system and we need to get that changed.

I call Senator Ó Clochartaigh, following whom I will put a few questions and then call Senator O'Keeffe.

I have a couple of questions. I note the extension of the remit is coming up again, and I welcome the fact that Mr. Tyndall has stated the position regarding the prisoners, which is something the committee may support and has supported in the past.

I welcome the comments on direct provision, which is an issue all members of this committee are passionate about. We will see a huge influx of refugees, particularly from the Syrian conflict, and a new system will be put in place that we are not yet clear about. Has there been any engagement between the Department of Justice and Equality and Mr. Tyndall's office on the complaints mechanism that will exist within that system, which we are led to believe will be different from but perhaps similar to the direct provision system?

Mr. Tyndall points to three main culprits around the complaints process, namely, the Department of Social Protection, the local authorities and the HSE. What could this committee do to help Mr. Tyndall highlight the issues he is raising, namely, that they are serial offenders and they need to be brought to task on the findings he has made on that?

My final question, which is asked every time we meet Mr. Tyndall, is on resources, and he has been diplomatic in his answers. His office's workload has increased. He has noted the IT needs. Does he have other needs from a resource perspective that would help him do the work more efficiently and effectively?

Mr. Peter Tyndall

I will start with the issue of remit. In a sense, we end up having discussions about certain restrictions and limited extensions. Most public service Ombudsmen would expect to have the public services in their remit, unless there is very good reason for a particular part of it to be excluded, and that is where we need to end up-----

Mr. Peter Tyndall

-----instead of picking them off one at a time. It is very welcome when we get the extensions. We got the extensions to the 200 bodies in the 2012 Act. We got the extension now to nursing homes but, ultimately, we have to ask if we should turn it on its head and say that the whole of the public service is within the remit unless there are specific reasons to do otherwise. For instance, the Children's Ombudsman might have a remit in some areas rather than my office, which is fine.

As well as the ones the Senator mentioned, the one to highlight is the issue around clinical judgment. Many complaints come to my office that we cannot deal with. People say there is the fitness to practice process, the Medical Council, but we get the type of complaints where somebody says, "I was not given the correct prioritisation on a waiting list and I had to wait much longer for treatment than I should have done." That is a clinical judgment. It has no impact on the ability of the doctor making that judgment to practice. It is not a matter for the Medical Council. It should never have been excluded, and it needs to be addressed. I have had a positive and constructive meeting with the Minister for Health, and I have had similar meetings with the Department of Public Expenditure and Reform but, hopefully, we can wrap up some of these issues now and address them.

I have a meeting coming up with the Department of Justice and Equality to discuss the implications of a potential extension of remit. I will raise the issue of the new arrangements at that point because as the Senator implied, it seems that the correct time to put a correct mechanism in place is before it is needed rather than after the event. Surely there should be recourse to the Ombudsman under those circumstances. All I can say is that, inevitably, much of the workload of my colleagues in southern Europe, for instance, the countries bordering the Balkans, Austria and so on is taken up with these issues because those are the pressing issues of the day and it seems odd that my office should be excluded from what is mainstream work for most Ombudsmen. That is a general point I would make.

I am missing something but the Senator can remind me in a moment. In resource terms, the issue for us is that we are to the pin of our collar, as they say. For instance, when we lost skilled, experienced people through retirement and it took several months to fill their posts, work piled up; we have no head room. When we have taken on new areas of work we have generally had additional resources to deal with that. Principally, that has been not on the Ombudsman side, but the workforce stretches across all the offices. The Standards in Public Office Commission, for instance, had additional staffing to deal with the lobbying. We had additional staffing on the Information Commissioner's side to deal with the implications of the 2014 Act, and we had assistance when the 2012 Act was introduced. We are monitoring the situation carefully with nursing homes. An 11% increase in work is a substantial increase.

We have done a lot to streamline our systems. As the Senator knows, a major effort was made under my predecessor. I have introduced some further streamlining, and that is helping us to manage but, to be honest, it would not take much to push us over the edge.

The backlog that had built up has been reducing steadily; we have halved it in the past 12 months or so.

Ms Jacqueline McCrum

It has been reduced by 50%.

Mr. Peter Tyndall

We are on top of things but if we are to take on new responsibilities, we will need new resources. We have no capacity to take on additional responsibilities.

I have stated before that our IT systems date back to the 1990s and are not fit for purpose. They do not have workflow management. Thus, when somebody comes into work in the morning, the system does not indicate that he or she needs to finish a certain job by Thursday or has a certain job pending. It is a very basic, old-fashioned system and it is not very reliable. We want to replace it with something that forms the basis, for the future, of a standard platform for managing complaints across the public sector. We are in discussion about resources. We will be able to make a start but we will need resources in order to do so. At a very minimum, we need to replace what we have with something that is at least 15 years more up to date, or preferably 20 years.

Senator Trevor Ó Clochartaigh: What role can the committee play regarding the serial offenders?

Mr. Peter Tyndall

With the serial offenders, it is difficult. The bodies on top of my list are the ones that have the most dealings with members of the public. The Department of Social Protection is always high on the list but we have very good relations with it. In general, if we identify something and have a robust debate on whether it needs to be done, when we have persuaded the Department that it needs to be done, it usually just gets on with it and does it. I need to be clear that the Department tops the list not through any deficiencies on its part but simply because of volumes.

The odd issue tends to arise. Let me mention one that affects several agencies. Sometimes bodies make payments in error, and it is their error. It can be a student grant body or a body dealing with welfare benefits. Our general view is that if somebody gives false information and consequently gets a benefit to which he is not entitled, the State should claim that back because the money is being received fraudulently. However, circumstances are different where people receive money through no fault of their own, as with somebody who moves away from home and is paying rent during the second year of a course only to find he or she is not only not entitled to the grant he or she applied for and got but also that he or she must repay it, with the consequence that he or she has no money to pursue his or her course of study. It is through no fault of his own. We take a view that this is not good administration. At times, if we cannot resolve the various outstanding issues, they may be ones we bring to the committee. We take the same view where people are asked to repay benefits many years after the event. The money is taken from their pension when they eventually qualify for one. We get cases like that. These are systemic issues. They are not huge areas.

With local authorities, the volume is simply associated with the fact that they are the housing authorities and are dealing with planning. They are in many contentious areas. There is not a pattern that I can identify. When there is, we meet the County and City Management Association. Generally, it has been possible to agree to collective solutions. One or two councils manage to be outliers. When everybody else agrees and implements a solution, they manage to find ways of interpreting the agreement in a way that was not intended. Generally, however, it is not so bad.

We generally do not feel the need to draw matters to members' attention to it because, by and large, people are pretty good at doing what they say they will do.

Obviously, the Ombudsman and his team will work diplomatically to find solutions. Where they feel this poses a problem, we encourage them to report to this committee. We are more than happy to follow up on cases. We see it as a core part of our responsibility.

With regard to some of the issues the Ombudsman has raised today, I propose that we write to the Minister for Public Expenditure and Reform on clinical judgments. The Ombudsman raised that with us when he appeared before us on 1 October last. We wonder whether the Minister would consider extending the Ombudsman's remit to deal with that. Second, we would like to raise the issue of resources, as mentioned by the Ombudsman today on our probing rather than his own pressing. Is that agreed? Agreed.

I wish to add to that. If we are to write in that manner, we should also mention direct provision and prisons.

We are on the same wavelength because that was the next point I was going to make. With the agreement of members, we will write to the Minister for Public Expenditure and Reform on resources for the Ombudsman's office, as has arisen today. Second, we will write about clinical judgments and, third, about direct provision. Considering that our committee and the judicial working group have recommended an extension into these areas, we would like an update, obviously in consultation with Minister for Health and the Minister for Justice and Equality. Is that agreed? Agreed.

Mr. Peter Tyndall

Let me contrast the two issues. There are discussions ongoing about clinical judgment. Would the committee be supportive of the ongoing discussions and-----

Encourage a positive outcome.

Mr. Peter Tyndall

-----encourage a positive outcome? Discussions are not really ongoing on direct provision and prisons. I would contrast the two.

I appreciate your guidance on that. What we will do regarding the first clarification point is state we are aware that discussions are ongoing and that we encourage a positive approach. Second, we will refer to our committee's findings and obviously those of Mr. Justice McMahon and the working group.

When the Ombudsman for Children appeared before us, we dealt with professional legal privilege. Whenever ombudsmen's offices are dealing with Departments, this is often used, rightly or wrongly, as a device that can prevent clarification. We would like Mr. Tyndall's thoughts on that.

Every time the Ombudsman appears before us, he raises issues of concern at a given time. He publishes his annual report. This committee often says it will revisit issues and report back in six months. We build it into the report. Has the Office of the Ombudsman considered for its annual reports revisiting issues outstanding from the previous year as an accountability device? I am sure the office does that, but could it be done in a more clear format? An issue that has not been addressed and that must be revisited in an annual report should automatically form part of a submission to our committee so it may be addressed. The objective is to ensure the very structures of government respond to genuine concerns and respect the office.

Mr. Peter Tyndall

The suggestion is a good one. We follow up on issues but not in the very systematic way the Chairman is suggesting. We will incorporate the suggestion into future annual reports so it will be very clear if there are any outstanding issues. The Chairman is well aware of the issues that arise. Mention was made of the motorised transport grant, the mobility grant and issues concerning jurisdiction.

In addition, the Lost at Sea report continues today and it is the only report of the Ombudsman's offices in 30 years that looks like having no beneficial outcome. We will make sure that we systematically reflect those issues in future reports.

The issue of legal privilege vexes my office in the same way it does the Ombudsman for Children. It is very frustrating when a Department says, "I have legal advice that says that you are wrong but you can't say it". That seems an entirely inappropriate way to deal with matters. The committee will be aware that the legislation in respect of the Northern Ireland public services ombudsperson, NIPSO, is currently working its way through. That explicitly says that the ombudsperson is entitled to access to documents, even those protected by privilege. There is no bar to legislating on this issue. Our legal advice is that the current legislation might allow us to go to the Circuit Court and ask for an order to have that revealed to us. It has not been tested. We do not know what the outcome would be.

Fundamentally, the committee has to understand that we see a lot of information that is confidential in the course of our work. We talked about issues around child care, for instance. We see a lot of files that are highly confidential and we need to see them in order to form a judgment. That does not mean that we immediately put that into the public domain. If something were covered by legal privilege, there is no reason we could not see it, use it to help us form a conclusion and then not formally publish it within the context of the report.

I have always felt it was a weak tactic. If one has an argument that says one is right, why would one not reveal that argument? I am with the Ombudsman for Children on this, if the committee is able to do anything, but I suggest that if committee members were looking for advice, their colleagues in Northern Ireland would be able to provide them with some background to their thinking and the solution they found. I believe the committee for the First Minister and Deputy First Minister was responsible for drafting the legislation. It is the same issue as far as I can see.

I thank the Ombudsman again for his presentation, particularly in relation to the Learning to Get Better report. Not only is it a good report, but it is clearly laid out, easy to read and I am heartened by the fact that the bright spots are also given notice because the Ombudsman's job is all about people complaining, so it is good for us to see that he can see where the progress is and that the people concerned see that. It is a small thing but it is quite significant because I have not seen it like that before. I commend him on that.

In respect of the fact that the Ombudsman is extending his jurisdiction, particularly across the nursing homes and clinical cases, encouraging the HSE to be more active and to take more complaints, is there an argument for having an ombudsman for health? I do not mean as a separate body in a separate office but a related position that specifically has jurisdiction because if the Ombudsman were then to get jurisdiction in the matter of direct provision as it stands, many of those problems would also relate to health matters, among other issues.

My other question relates to the change in the nursing home clinical situation. The Ombudsman is saying it is in progress. Is he in a position to say whether the legal constraints or the financial constraints are the ones most delaying this, or is it just that it is in discussion and all these matters are equally on the table for resolution?

Mr. Peter Tyndall

In general, I prefer a simplification of the ombudsman landscape, rather than having many ombudsmen, even within the same office. It is possible to have specialists within one's office who deal with particular areas. Members are probably aware that we recruited some people with a specific health background, but the experience is often that the pressures of the day are driven by current events. Coming up to the leaving certificate, we will get a lot of casework around education, for example. If we had to have a team in education that was big enough to deal with that, it would spend other parts of the year not very busy. Having the flexibility in general works better than having too much-----

Except that I am arguing that because the Ombudsman is specifically looking to extend his jurisdiction in areas that are exclusively to do with health, assuming that he gets that jurisdiction, the forecast would be that he would double the workload in that area and that the level of work would be very diverse. That is the only reason I ask, not because I am trying to dilute his office.

Mr. Peter Tyndall

It is an interesting debate and it happens quite extensively. My general view remains that having the capacity to deal with the complaints is largely to do with access to clinical advice and we have mechanisms that enable us to have access to independent clinical advice that is quite costly. The work of a caseworker in a health complaint is not greatly dissimilar to the work of a caseworker in other areas and specialisation has generally led both to problems with silos within offices and inflexibility in dealing with varying workloads. My general view is that it should not happen, but I can understand the arguments the other way. There are two separate issues.

The nursing home thing has gone ahead. Nursing homes are within my jurisdiction since 24 August and that is very good. It will take a while for complaints to come through because it is only complaints-----

The Ombudsman can only take recent complaints.

Mr. Peter Tyndall

Yes, I can only take recent complaints. That is all fine. I have to commend the Department of Public Expenditure and Reform for expediting that. It was all dealt with in a speedy and efficient manner. I also commend Mr. Morgan and my own staff, who have taken on a huge task. I think members have copies of the pack that we produced.

Mr. Peter Tyndall

We have produced an awful lot of material and provided an awful lot of training in a very short time, so people have done an excellent job on that front. I suspect the delay on clinical judgment is because there will be groups of professionals who will not want to see the jurisdiction extended. It is worth saying, just briefly, that as Ombudsman, if the jurisdiction comes my way, I will not be making comments about individual clinicians. It is the bodies and the treatment that are in jurisdiction, so one will not see, as one would with a proceeding before a professional body, a doctor, nurse or other medical professional named in my reports. The role of an Ombudsman is a different one. As I said, there is a huge lacuna at the moment. Both the Minister for Health and his Department and the HSE are supportive because their jurisdiction on this is very unclear. It may well be that, although they deal with these issues at the moment, whether they have the clear legal authority to do so is a moot point. Everybody agrees that it needs to be addressed but there are sensitivities to be dealt with. I would just like to see it moved forward.

In other words, it will take some time to be resolved.

Mr. Peter Tyndall

Yes. It will also take resources. There is no question about that.

There is a financial constraint.

Mr. Peter Tyndall

There is a significant financial constraint. I would not dream of taking it on without having the resources to do it.

That is quite a different matter. There needs to be access to expert clinical advice and that is costly.

I thank Mr. Tyndall.

I propose that we send the full transcript of today's hearing to the Minister for Public Expenditure and Reform, drawing particular attention to the matters of extending the jurisdiction of the Ombudsman's office to cover direct provision and bringing the immigration system in line with Mr. Justice McMahon's report and the committee's report. I also propose that we note the ongoing discussions on clinical judgments and that we hope to see a favourable outcome. I also propose that we draw the Minister's attention to the issue of professional legal privilege and, referring to the NIPSO legislation in the North that is being directed by the OFMDFM committee, ask if the Minister will consider a similar approach here. The last is the issue of resources. Those are the four points from proceedings today. We will draw the Minister's attention to them, asking him for a response on all points, and we will revert to the Ombudsman's office when we have that response.

I thank our guests. We appreciate the opportunity to discuss with the Ombudsman and his team their concerns and to act on them. We will go into private session briefly.

The joint committee went into private session at 6.11 p.m. and adjourned at 6.25 p.m. until 4 p.m. on Wednesday, 7 October 2015.