Official Report: Minutes of Evidence

The Chairperson (Ms Kimmins): You are all very welcome. I apologise for the slight delay. In attendance we have Margaret Kelly, the Northern Ireland Public Services Ombudsman (NIPSO); Sean Martin, deputy ombudsman and director of investigations; and Corinne Nelson, director of investigations. We are delighted to have you here today. Your visit is timely, given the debate that we had in the Chamber this week and the work that the Committee has been looking at. Members, we have 45 minutes for this session, which will be covered by Hansard. I ask you to be mindful of that time frame, because we have two more oral briefings to get through. With that, I will hand over to you to make some opening remarks, after which we will open the session up for questions.

Ms Margaret Kelly (Northern Ireland Public Services Ombudsman): Thank you, Chairperson and Committee members, for the invitation. I want to reflect a little bit on our work and then give you the opportunity to follow up and ask us any questions that you may have. We have given you a paper, in which we reflect some of the key issues for us.

Earlier this year, we held a patient safety conference: Patient Safety — Public Trust. A decade of inquiries — what is the learning? I want to reflect on some of the key themes from that conference and to highlight the work that we do that led us to hold that event. This year, the Office of the Northern Ireland Public Services Ombudsman expects to receive 1,300 to 1,400 complaints, close to half of which will relate to Health and Social Care. We have a three-stage process, the third stage of which is an intensive, 52-week investigation. Some 70% to 80% of those complaints are Health and Social Care-related. While I acknowledge that we tend to see the cases where things have gone wrong — often significantly wrong — that provides us with a detailed knowledge of what happens when things go wrong, how the system responds, where significant failings are, and where there are issues of avoidable harm.

I preface our discussion by saying that it is our experience that the vast majority of health and social care professionals turn up every day to work in the best interests of those for whom they are providing care, and that they currently do so in what is, quite possibly, the most pressurised and difficult environment that we have seen. Therefore, my reflections are not criticisms of individuals, but they are reflections on the system. Every system, regardless of how highly we regard the professionals in it, has to be open to reflection and criticism.

Sometimes, we think that everyone complains, but that is absolutely not the case. All the international research shows that only about 30% of people who have a very poor experience of a public service, including a serious or significant failing in Health and Social Care, will complain. What we do know, however, is that, in all complaints, openness and transparency are key. Openness and transparency make the difference between resolving a complaint or compounding the harm and trauma that may result from a serious complaint. Unfortunately, in my office, we continue to see harm and trauma compounded because of a failure to be open and honest after an incident of significant harm.

In the past year, I have not only seen many more complaints coming to the office but many more serious complaints. In the past year, I have seen more complaints where, with appropriate management, death or significant harm would have been avoided than I have seen in my previous three years in the role. I have been in my role for four years. On average, we do 80 to 100 of those big investigation reports a year, and I see all of those. I am reflecting on my four years' experience.

I want to give you a few examples — there are, unfortunately, many that I could draw from — so that the Committee understands some of what we see: the failure to identify a cervical fracture and a missed diagnosis, which led to a spinal cord compression and, ultimately, death from pneumonia, despite the fact that members of the patient's family were medical professionals and had been raising their serious concerns for weeks: the intrauterine death of a baby at 34 weeks, where there were what I can only describe as acute failings and, again, a failure to listen to the mother involved, who was raising significant concerns; the failure to manage severe pain and diagnose sepsis that led to a patient's death; a young man with learning difficulties who sustained kidney damage because his renal stent was left in place for 18 months with no review or consideration despite the fact that he was supposed to have a review within a month and despite the stent manufacturer's guidance giving three to six months at the absolute outside as a guideline for a renal stent to be left in place; and the death of a man — you may have seen the recent coverage of Mr Cull speaking about his father's death — within 24 hours of his premature discharge from hospital, from bowel necrosis that was missed. That gives a flavour of some of the many serious and significant cases that I see.

Unfortunately, alongside many such cases, we have seen a lack of candour and, very occasionally, not just a failure to be open but the creation of inaccurate records that attempt to disguise where, when or whether service has been provided. My legislation provides for me to share my report with professional regulators. I do not do that in the matter of a mistake, where there has been openness and honesty, so, in general, I do not share it. The occasions on which I share my report with a professional regulator are where there has been a failure of candour and, in particular, where inaccurate records may have been created.

We have fallen seriously behind developments elsewhere in the UK. There is an opportunity for Northern Ireland not to simply catch up but to become a leader in how we approach patient safety and candour. There is no patient safety strategy or framework for Northern Ireland. The urgent need for such a framework to drive change at a systemic level is clear. The serious adverse incident (SAI) process is not fit for purpose, and there is a need to look at how we address failures in the system.

In the past three years, about 4% of NIPSO reports have referenced SAIs, and, in six out of eight such reports, the SAI was linked to patient death. We see recurring issues: we see trusts failing to initiate an SAI review when the criteria have clearly been met; we see trusts initiating an SAI review only on receipt of a complaint and where complainants really push for it; and we see a recurrent failure to properly communicate with patients and families about an SAI.

I will reflect for the Committee some of the criticisms that we made in a couple of those reports. In one report, I said:

In another report, I said:

It is imperative that we address SAI reviews, that we make them fit for purpose and that we focus not on the number of them but on the effectiveness of what we do. The Committee will have received our submission on a duty of candour. We, in my office, believe that a clear duty of candour is needed. It has been too long since Mr Justice O'Hara made his recommendations on an individual and an organisational duty of candour, and there is a need to take those forward. There is also an opportunity to look at developments in Scotland, for example, where an independent whistle-blowing champion is in place in the ombudsman's office to assist with cases in which staff raise serious issues. Looking at the experience in Health and Social Care, we might sometimes think that patients and staff are on different sides of the debate. I think that they are on the same side. Staff have communicated to us about cases where they have attempted to raise concerns but that has not happened.

We are happy to discuss further the office's position on a duty of candour, but we draw the Committee's attention to developments in England with the Hillsborough Bill. That points in the direction of the need for a clear duty of candour, not just on medical professionals but, across the system, on public services and health service managers, and is an indication, given what the Prime Minister has said publicly, of the need for a criminal sanction to go along with that.

Patient safety is critical not just to those who use our healthcare system but to those who deliver it. It requires change if it is to improve. I absolutely support the calls for a culture of openness — a just, fair and honest culture — but that will not happen on its own. It requires the underpinning of legislation, policy and processes to make that happen, and the evidence that comes to my office supports that.

The Chairperson (Ms Kimmins): Thank you, Margaret. That is an excellent start to our meeting. A lot of what you said echoes the debate and discussion that we have had both in the Chamber this week and over the time that the Committee has been in place. The difference is that you have the evidence to back that up, which verifies the points that we have been trying to make. I absolutely agree with the point about patient safety being not just for the people who are using our health service but for those who are delivering it. That is the clear message that we have been trying to send. It is about protecting patients and staff and, as you said, enabling them to raise concerns and issues safely.

The first thing that really strikes me is the failure to listen to patients. I am dealing with one case in which what you have described is exactly what happened. The case was of an expectant mother. It was her fourth or fifth pregnancy. She raised concerns with numerous health professionals but they were dismissed, and the outcome was that she had a child who developed a life-changing condition that could have been avoided. She has to deal with that. The child is coming 12, but the investigation into the case has still not concluded.

A critical factor in all this is that we ensure that people are listened to. Before we started the session, I mentioned the British Heart Foundation event yesterday, which a number of us attended. We heard from two young women — sisters — who knew that something was really wrong but were told, "It can't be your heart. You're only 27". Both of them were at a stage where, but for their persistence, their condition could have ended in death. The point that I am making is that it should not come to that. Yes, people have professional skills and professional judgement, but, if they listened to their patients, we could avoid a lot of this.

We have had a lot of debate on a duty of candour. There are real concerns among health professionals in particular, which we understand. We want to ensure that any process is done in partnership, so that we address those concerns and make sure that we have the best outcome. You talked about the culture of openness being so important, but we know that that is not working in its current form. How will introducing an individual and an organisational duty of candour with criminal sanctions change what we are dealing with now?

Ms Kelly: It is absolutely necessary to introduce an organisational and an individual duty of candour. If you look at the Care Quality Commission (CQC) in England, you will see that there is an organisational duty of candour with significant criminal responsibility. CQC undertakes significant prosecution of organisations on that basis and, occasionally, of a named individual who has responsibility. I know that it is difficult. Sometimes, when I consider the issue, I point out that we are all under an individual duty under GDPR and could, therefore, be subject to a criminal sanction. If any of us maliciously destroys evidence that has been asked for under a subject access request (SAR), we commit a criminal offence and can be held responsible for it.

I know that it is difficult for health professionals, but I do not think that it should be applied only to the medical profession. To create that openness, it has to be applied across the board. It has to be clear that it is not about making mistakes. We see mistakes frequently. If a genuine mistake is made, and the person is open and honest at the first opportunity, we find that people are willing to accept that. It is when people do not get honesty, and get a drip, drip, drip, that real difficulties are created. It is important that there is both of those.

Sean, do you want to say a little about separating out duty of candour and criminal responsibility?

Mr Sean Martin (Northern Ireland Public Services Ombudsman): The organisational duty needs to be broadly drawn. The proposal in 2021 had a fine for the organisation, with £5,000 as the upper limit. It is not really about the fine, although we said that we did not believe that that was enough. We believed that it sent the wrong message, and that it should be for the judge in the case to determine any financial liability on the public service. It is about the accountability that would come after that, because, for a prosecution under the organisational duty of candour, people have deliberately covered up something, and that has prevented learning on future harm. That needs to be taken seriously. Alongside the criminal responsibility of the organisation, there needs to be clearer accountability mechanisms. More generally, across Health and Social Care, we need to be clearer about accountability mechanisms, how they work and who is accountable for what, because that is a bit unclear at times.

The consultation gave three options around the individual duty: Justice O'Hara's recommendations; the duty of candour with no criminal sanction; and a decoupling. The more that we have thought about it, the more that we think that there is merit in decoupling the two things. The duty of candour is a positive thing — it is about being open and honest and helping the system to learn. You have that positivity, and everybody is under that obligation. A decoupled criminal sanction would be for people who deliberately act to cover up. It is not something that you do inadvertently; it is a course of action where you set out to cover up something and, therefore, prevent future learning.

There is merit in looking at the proposal around decoupling between a positive duty of candour and a separate criminal sanction. When I think about duty of candour, I see it as a positive thing. It is about people needing to be open, honest, helpful and reflective. We see good examples: we see people not being candid, but we also see good evidence of reflection of learning. We want a system that encourages a duty of candour. The deliberate act of cover-up, destruction or creation of a false narrative is something separate. I do not believe that the staff in the health service would believe that it is appropriate, and I do not think that public servants, generally, would believe it is appropriate. Therefore, there is merit in considering the proposal that was in the original consultation.

The Chairperson (Ms Kimmins): That is the point that we have been trying to make. We do not want people being criminalised for making mistakes. We have talked clearly — you talked about it, too, Margaret, in your opening remarks — about the huge pressure, which creates a higher risk of mistakes being made. We recognise that. The key is this: if people feel comfortable and safe to be open about it at the earliest possible stage, that provides the best chance for learning and to deal with it. It is about trying to get that message through.

I also want to ask about the SAI framework. You outlined a number of the concerns that we also have. Accountability, and those things, are key priorities for the Committee. I go back to the failure of trusts to enact the SAI process, even where there is a clear threshold. That is very concerning. The Committee is aware that a redesign of the framework is ongoing. Have you had any insight into how that is going? Do you feel that there is proper co-design in the process? We have had issues raised in relation to that, so we are trying to look more deeply at that as well.

Ms Kelly: There are a couple of things. First, I will pick up on the point about duty of candour and decoupling. A recent report that I did was to do with the death of a baby. That was investigated, and there was an SAI review. The case went through that process, but the person was still unhappy about it. When it came to me, one of the midwives said to our investigators, "The record I created that said I was with that lady at that time, providing that care — I actually was not there, and I asked somebody else to write it for me". That only came out at the point where our investigation kicked in. I would not say that we see that often, but it is there. I will say that to begin with. Decoupling those and having both could be helpful.

We had a little look at the figures on SAI reviews, because there has been a bit of a narrative that we do too many. That is not our experience, to be honest. There were not clear figures, but, overall, it appears that there were around 125,000 adverse incidents in Northern Ireland. When we looked at those for which a SAI review was done, we found that the figure was around 0·3%. It is, therefore, a small number, and the majority of those appear to be level 1 SAI reviews, which are done internally, and not a level 2 or a level 3.

There are a number of things. What I see with SAIs is that families and patients are not listened to. If you were to ask to me what is the recurrent theme, I would say that the recurrent theme is that families and patients are not listened to, the communication is really poor, the standard of investigation is really poor, and it goes on for a really long time. Any redesign of the SAI process, at its core, has to address that. A couple of people have reached out to us and said, "Look, we do not feel like the patient voice and the patient experience are being properly reflected". We know that the proposals will go out for public consultation soon. We have not seen them, so it would not be appropriate to comment. We will respond when we see them. However, those themes are constant in the cases that we see. In the serious cases, those themes are there.

The Chairperson (Ms Kimmins): I can certainly say that that is a common theme in the cases that I deal with in my constituency office. That is why it escalates. If an issue is recognised early on, you can deal with it a lot more easily, and people will be more upfront. If not, you find that everything is convoluted and there is a long process.

This is my last question, because I am conscious of time. A really important issue for us, as a Committee, is the learning. I feel strongly that we do not see the learning. We have talked about the major inquiries that we are all aware of, and those are tied in with the duty of candour, in particular, and SAI reviews. Some of the people whom we spoke to said, "You could paper the walls with SAI reviews, but what are they achieving?". Margaret, you said that not enough of what should be done is being done, given the threshold and all that. Are you able to see where there is learning, or is that just not there? What is your take on it? Will the redesign process address that? Hopefully, it will.

Mr Martin: Hopefully.

Ms Kelly: It is a very mixed picture. To be honest, we tend to see complaints from people who, after going through the SAI process, are really unhappy. We also see complaints where we think, "You should have done one, and you have not". Often the learning from that is not disseminated.

In the case of the baby who died, the complaint came to my office. I was really concerned about the failings that I saw. One of my recommendations was that the trust look at that maternity unit and undertake a three-year review, looking back at all its high-risk cases and the learning from those. I do not think that the learning from SAIs is properly put in place. What is your process and mechanism for that learning? How do you share it across all the trusts? What is the accountability mechanism to ensure that it takes place? In a redesign process, you would look to see whether all those things are there.

Mr Martin: When we make recommendations, we now follow up and ask for the evidence to show that that has been done. We are just starting to take that further to see whether that has had the impact that we expected. I think that that is a good model: look at the SAIs, look at the recommendations that have been made and look at whether they have been achieved. Have they been achieved within the organisation that did them, and has that learning been shared more widely across the system? We know only too well that investigating takes resource, so, if you commit to doing an SAI review, it is really important that you do it well and that you make the recommendations that will make a difference and that those are then implemented and shared so that others can learn. We are conscious about our own work of ensuring that what we recommend brings about positive change. When we have discussed it, we have agreed that that will be a key for a new, redesigned SAI process: it is clear, both in the organisation and more widely across the system, how that learning is embedded, checked and having positive impact.

We reckon that, on average, about 500 SAIs are reported on each year. That requires a considerable amount of investigative effort. It is a very small percentage of the, probably, 125,000 adverse incidents that happen. Rightly, rather than focus on the number, you focus on the issues that caused the most harm and where there is greater opportunity to learn and make a difference. Some of the senior people in the health service whom we have spoken to think that we need to do it differently. They are really clear with us that they, too, do not think that the current process is delivering what we all expect from it and what they expect from it. We need to think differently. In England, they have gone to the patient safety incident response framework. It is too early to say whether that has brought about the changes that they were hoping for, but, from what we see, there is absolutely no doubt that we need to look at a different way of doing it and make sure that we listen and learn.

The Chairperson (Ms Kimmins): Absolutely. Thank you. I could ask lots of questions, because I am interested in all of this, but I am going to move on.

Mrs Dillon: Thank you, Margaret and Sean. I really appreciate the briefing. Margaret, you said that it would not be appropriate for the Department to reach out to you about the work that it is doing on the redesign of the SAI framework. Would it not? That is my first question. You are dealing with these things all the time, and you see where improvements are possible. You will have the opportunity to contribute to the consultation — we will all have that opportunity — but maybe the consultation document would be better if you were engaged sooner.

Secondly, you mentioned that Scotland has a whistle-blowing champion. I do not have a view about that, but are there other places, whether Scotland or elsewhere, that are examples of best practice? You said that, for England, it is too soon to say, so let us take England out of it. Are there areas — I do not just mean on these islands — that we could look at and say, "Here is best practice, and these are some of the things that we should be doing"? That does not mean that we do not have to make it suitable for here. We are a small place. It seems really strange that we cannot manage these issues much better than we are doing, given the size of this place.

Finally, on the listening part, you have outlined that patients are not listened to. That is my experience of every case that I deal with in the constituency office. It is always because the patient or the patient's family were not listened to. You alluded to the fact that health professionals are not being listened to either. It is really frightening if that is the position that we are in. Neither patients and the families of those affected nor health professionals are being listened to. You have to wonder about the value of redesigning a framework if senior officials, the Minister and the entire Department are not going to listen to the people who have the lived experience, whether they are medical professionals, those who are on the receiving end of treatment, or those who, unfortunately in some cases, are not on the receiving end of treatment. Sorry; that was long-winded, but my main points are on best practice and why you have not been engaged with already.

Ms Kelly: We engage where particular reports have come up and there are issues around SAIs. I have shared a number of those with the Department. We have met departmental officials and said, "Here is our experience of this. Here are the things, we think, you need to address", and the Department came to the patient safety conference and presented and engaged. However, to clarify, we do not sit on departmental groups. We have a degree of engagement and feed in, but, because of the independence of the office and its investigation role, we do not sit on the SAI groups.

It is my understanding — I am sure that Sean will tell me if I am wrong — that Scotland is the first jurisdiction on these islands that has put in place whistle-blowing champions. That is for staff in health services who have raised a concern but feel as though they have not been heard. If they go through that process and feel that the organisation has not listened to them, they may bring that to the ombudsman's office under that national whistle-blowing role. The ombudsman may then give that person a degree of protection and investigate the organisational response to establish whether the organisation properly looked at the concerns that the person raised. It is early days for that process. I think that the ombudsman has had that for two years or two and a half years.

Staff tell us that it is really difficult to raise a concern. They often feel that, when they raise a concern, they are at a disservice, personally and professionally. The evidence around staff who raise serious and significant concerns shows that it impacts negatively on them, personally and professionally. There are many examples of that. The purpose of the national whistle-blowing role is to provide a place where someone who has tried to raise a concern in that context can go independently and outside.

I would have to look for examples of best practice for you, Linda. All the things that we have talked about, and which, I have no doubt, other people have told you about, need to be included in best practice, such as listening to patients and their families, communicating with them, taking their concerns seriously, and doing proper investigation. At one level, we know all those things. It is about putting in place legislation, including the bits around duty of candour, organisationally and individually, that will cause that change. We have been talking about that for a really long time. Professionals have had a duty of candour for a really long time, but we have certainly not seen the shift that we want to see.

Mr Martin: Last year, our ombudsman colleague at the time in England, Rob Behrens, produced a report in which he looked at 22 deaths in relation to the health service. The role of that ombudsman is very focused on central government and the health service. It does a huge number of investigations. He said that five key things came out of those specific investigations around death: failure to make the right diagnosis; delays in providing treatment; poor handovers between clinicians; and, importantly — this reiterates the point that you made — failure to listen to the concerns of patients or their families. He pulled that out as one of the key things that contributed to failures in patient safety. We see that in our work. It is hard at times to understand, because people are being really clear about what is wrong, and yet they do not seem to be heard. Key for us is to understand whether that is culturally in the organisation or whether it is dues to pressures. What leads to people not listening and, therefore, causing harm? Afterwards, the harm is compounded if you fail to listen again through the complaints process or an SAI. We do people a great disservice. There is the failure to listen while care is being delivered, and then there is the failure to listen afterwards. We compound the harm that has already been caused.

Mrs Dillon: I really appreciate those answers. We need to find out whether the not listening is because they are not listening and think that they know better, which is a cultural issue, or whether it is because they are not being given the time and space to listen. I will say, again, from my experience in dealing with constituents, very often, it is not listening and, "We know better". When patients are actually telling a consultant or medical professional what exactly is wrong with them, they refuse to investigate, and they spend a fortune sending them to appointments all over the place looking for things that are not wrong with them. For me, that is a big concern. That is costing our health service a colossal amount of money because we are failing to diagnose early enough and failing to treat properly and in a timely manner and then we are often having to pay out money because of people being left, as you outlined, with long-term harm or even death.

This is not about money. This is about best outcomes for people. We really need to get to the bottom of this, and it is a massive culture change. It is easy to be defensive when you think that you are doing the best you can. We have all been there as professionals, as elected representatives and as people who very often come off on the hard end of what people have to say. It is easier to be defensive sometimes: but stop and know that you will get the best outcome on every occasion by just listening.

Thank you for the presentation. I appreciate it, and the conference was excellent.

Mr Robinson: When you have a respected judge such as Mr Justice O'Hara and a respected ombudsman's office now painting the picture and highlighting the need for change, anyone who may have any doubts or concerns needs to think again. You will be aware of the debate in the Chamber earlier in the week. I do not know about anybody else in the room, but, certainly, I picked up that there seemed still to be resistance to change in the Department of Health with regard to duty of candour. Are you picking up any frequencies that there may be a change of mindset now? If there is resistance at the top level of the Department, it will be very difficult to implement change at the lower levels. Are you picking up anything? It was my view when I left the Chamber after that debate that we will still be battling with this in the next mandate.

Ms Kelly: When we held that conference in March, there was still a split view. I think that the departmental view at that point was a real concern about an individual duty of candour with a criminal sanction. I am not privy to any information that suggests that that view has changed. That is a heated debate. We meet the GMC, the Nursing and Midwifery Council (NMC) and all the regulators. We have had the debate with the regulators that we have a different view on that.

I could be wrong, but decoupling the duty of candour from the criminal sanction that is about wilfully covering up may allay fears. I think that a huge part of it is about fear; a real fear that somehow mistakes that are genuinely made will be criminalised. When we have had that debate, that is often what people have said to us. We are saying, "This isn't about mistakes". We see mistakes; we know that mistakes are made. People are only human. If there has been a genuine mistake and people have been open and honest, most complainants are unbelievably accepting. It is about when you deliberately cover up. There is work to be done on being clear that this is about deliberate and wilful cover-up, because there is some misunderstanding. I do understand that fear, but my role is about accessing justice for ordinary members of the public and the improvement of public services. Having been four years in the role, it is my view that we need the duty of candour but also a criminal sanction that is about wilful cover-up, if we want to see change, and 99% of healthcare staff and, indeed, managers have absolutely nothing to fear from that.

Mr Robinson: Thanks, Margaret.

Miss McAllister: Thank you very much for the presentation today. It is timely, given the debate that we had in the Chamber this week and with what the Committee has been doing with regard to all the ongoing inquiries. I am glad that we have your remarks on record now regarding the duty of candour. It is especially beneficial when organisations and persons such as you, Margaret, come out and say that it is not about mistakes. That is important.

I want to speak about and focus on the relationship between you and the trusts or other organisations after an investigation. Your report refers to 377 complaints about trusts and 126 about other providers. After you have an investigation, what is the relationship between you and the trusts? Let us take them in the first instance. Do you report on themes that come up continuously? Are there performance issues that you make recommendations about? Do you have authorisation to require feedback or confirmation that it has been implemented? I want to learn more about that relationship, after the fact.

Mr Martin: As Margaret said, we have a three-stage process. Of those 500 health complaints, last year, probably about 100 will go to that final stage of the process — the further investigation stage. We will have been able to resolve some before that. We do get complaints that come to us first, and one of the requirements of the legislation is that you give the body the opportunity to resolve it, which, I think, is right. If we get the complaints process fixed, where we listen and engage with people, hopefully fewer of those will come to us.

We share a draft with the organisation to seek its comments on our recommendations. Sometimes we tweak them because they say, "We know what you are trying to achieve, but that could be achieved better in this way". Then, when the final report has been issued, we will normally ask them to send us an action plan with the actions and the timescales. We, then, follow up. We have done an exercise internally to check that our staff are actually following up to see that we have got evidence to show that those recommendations have been implemented.

We are doing another piece of work now to check whether our recommendations are actually effective: have they brought about the change that we have been seeking? We have just started that piece of work, and we will have to engage with the GPs and the trusts on that. I can think of one where, with the particular type of cancer, there was a clear gap. You could not speak to the consultant. They were really busy. However, people had all sorts of questions about their care, and they needed to speak to somebody, so one of our recommendations was a specialist nurse for that type of cancer. We know that the cancer specialist nurse was put in place, but has that made the journey better for people? Is there somebody whom they can contact? We are conscious of checking to make sure that the recommendations that we make have an effect.

Corinne's team do this, day in and day out. We have good engagement from the trusts. When we get to that final report stage, it is rare for them not to accept a recommendation that we make and not to engage positively around that. I have been with the office for 10 years. I would probably reflect that acceptance of the independent nature of our office and the recommendations that we make has got better and better. They may not always see things in the same way that we do, but they accept that we have looked at it independently and made those recommendations, and they do get on with implementing them.

Margaret and I have seen good examples, when we have engaged with senior staff from the trusts, of how they are reporting internally. Some of the trusts, in particular, will pull out the recommendations that we have made and will report those up through senior management and to board level, to show that they have taken the issue seriously and have taken steps to implement them. Have I seen occasions where we have been told that something has been done and it has not actually been done? Yes, but that is a rarity, I have to say, and it was probably some time ago. More and more, we are seeing those things being taken seriously.

The Professional Standards Authority made a recommendation in its 'Safer care for all' report around inquiries, as well: that there was a need for a mechanism to take all the recommendations that were made in the various inquiries and for somebody to independently check that they had been implemented and were having the effect that those who carried out the inquiry intended. You have taken evidence at Committee around some of that in the oversight board for that and the challenge. That is really good because, when you commit resources to the investigations that we do or to a public inquiry, it is really important that we learn and make improvement.

Ms Kelly: The other thing that Sean and I have been doing is speaking to the trust boards. It is not uniform across all the boards that, when that data on complaints comes and where there has been an ombudsman's report and significant recommendations, they automatically go to all: some do; some do not. There is probably an issue to do with trust boards, their functions and their accountability in ensuring that, where there has been significant investigation and failings, there is a responsibility for all trust boards to consider that and to ensure that they go to the board again.

Miss McAllister: I want to expand on that, but, before I do, I will ask this: are they obligated to comply?

Ms Kelly: No, they are not.

Mr Martin: We work through soft power. I come from a regulatory background, and we get better compliance through that soft power. This Committee and the other Committees of the Assembly are the ultimate recourse, where our investigations are not accepted and something remains outstanding. If that were to occur, we would do our special report.

Ms Kelly: I can lay a special report in the Assembly, when a public body — not just a trust — has refused to accept my recommendations or refused to implement them. In four years, I have not had to do that. However, should I need to do so, I most certainly would.

Miss McAllister: You have not needed to do that, but, unfortunately, it still takes a lot of time. We talked about the SAIs. You have to go through the trust's complaint procedures and then — let us say that it is an SAI — to NIPSO. How many years might have passed? How many people might have given up? How many lose the will to fight because it is like hitting a brick wall? We need to fix that, absolutely.

In the relationship that you talk about amongst the trusts and in the accountability within trusts and at the board, whose role is it to implement recommendations? Is it the role of the chief executive or the board? Where, then, does the accountability lie? Is it with the chief executive to the board? Does the chief executive sit on the board? Do they have a say? Is there an issue with the accountability structure?

Mr Martin: The way that it should work is that the senior management team, including the chief executive, is responsible to the board, and the board, which comprises non-executives, provides scrutiny and challenge, so they are an accountability mechanism, in my view. Between the trust and the senior management team, there is a level of responsibility and accountability. There is a level of responsibility and accountability with the trust board. There is also a level of accountability and responsibility with senior departmental staff who commission and, at times, direct the way in which services are delivered. We need to be clear about all those relationships, so that there is accountability, and we are clear about it.

Miss McAllister: You say "need to be". Are they not clear now?

Mr Martin: I do not think that they are clear.

Miss McAllister: OK. You say that the Department has accountability, but do you include the strategic planning and performance group (SPPG)? There is the commissioning of services centrally and then the five trusts. Is the current accountability structure for where accountability lies messy?

Ms Kelly: It is less than clear. It could be much clearer.

Mr Martin: I think that it would be a useful exercise.

Ms Kelly: It would be worth considering that. I have not done a piece of work that has looked at exactly how that works and exactly where all that accountability fits together. However, there are times when it is less than clear, and it would be helpful to look at that.

Miss McAllister: That is helpful.

I have one last question, Chair, which is separate but linked. If people think that I am going on, forgive me, but families raise this with me all the time. When there are complaints to NIPSO and there is a conflict of interest, I assume that the people are not involved in investigating any public body — that is the assumption. However, in the Department and in trusts, the very people who are included in inquiries and have been involved from the start now sit on implementation boards, implementing the recommendations following inquiries. Is that clear accountability, or is there a conflict there? Do you have a view on that? Leaving individuals aside, is there a conflict?

Mr Martin: During investigations, we are clear that, if you have been involved in the actions that the complaint relates to, other than giving your account and responding to issues, you should not be involved in the investigation. We are always clear about that, but we find problems with it. It is clearly not appropriate for people who have been directly involved to then involve themselves in the inquiry. The implementation of recommendations is slightly different: as long as the person is contributing in a useful way, as part of a wider group, and is not the person who directs or controls. It is a difficult one to answer because we are not looking at the circumstances. Again, if you wanted to pick up on something in particular with us, we could give you a view. I would not say that it is an absolute no. It would be very context-driven.

Ms Kelly: There are obviously different levels of investigation and different levels of adverse incidents. When a complaint comes in, some of the trusts have moved to going to the clinician or whoever to get their view, but they will ask someone else within the trust to review that. Again, that is not uniform across all the trusts. It is very early days, but it looks as though that is helpful. It is like asking me whether I did something wrong; you might want to ask someone who works with me to look at it. There has been a move across some of the trusts to build more independence in how they look at complaints, and that is certainly something that we welcome.

Miss McAllister: Thank you. That is another piece of work for the Committee with regard to looking at the accountability structures.

Mr Donnelly: Thank you for your presentation. It was very strong and quite concerning. I appreciate that the vast majority of healthcare professionals are doing their best for patients every day —

Ms Kelly: They are.

Mr Donnelly: — and you have highlighted that. What really struck me initially was that you said that you have seen the creation of inaccurate records that attempt to disguise where, when and why care has been delivered. That is absolutely chilling to hear. That is a blatant attempt to cover up, obfuscate and get away from the truth of what happened and to shift blame.

Ms Kelly: Danny, I want to be clear that I do not see that all the time. However, from the past four years, off the top of my head and taking into account the fact that I look at 80 or more of those reports in a year, I could certainly list four or five occasions where records have been wilfully changed or not properly recorded. I want to be clear that, in the vast majority of cases, I do not see that, but I see it occasionally.

Mr Donnelly: For me, that absolutely underlines why we need a duty of candour for individuals and organisations. There is no question about that, if you are seeing that, again and again. It is not in the majority of cases, but it does happen, and that is why it underlines the fact that we need that.

Another thing that really struck me was your mentioning recurring issues. If we had a proper complaints process and proper accountability, there should not be recurring themes, because they should have been addressed and then would not occur again. The fact that you are seeing recurring themes and that one is the trusts failing to initiate SAIs is hugely concerning to hear. That is a recurring theme that you are seeing again and again. What do you think is driving that? Is there an issue with the threshold for SAIs? Is it being ignored, not well understood or ill-defined? Could you speak about that and what you see as a duty of candour or an individual duty of candour?

Mr Martin: On the matter of recurring themes, one of the key things that we are doing as part of the engagement on complaints standards is about data and the use of data. Health and Social Care, in some respects, is ahead of the curve in that it collects information and makes it publicly available — not all sectors do that — but we could do better. Between 6,000 and 7,000 issues of complaint are recorded, but, given the number of patient interactions in Health and Social Care, that is tiny. I suspect that the number of complaints is way beyond that. There is always a balance between recording and the effort in recording, but we need to capture more data so that we can then do better analysis of what those issues are, what led to them and what we can do so that they are not major recurring themes.

Collection and analysis of data is a big thing for us in our complaints standards approach. We had an event two weeks ago, and we brought over people who have done some work across the UK virtually. They engaged with people in our health and social care system on how they have made strides forward using the same system as we use — Datix — to capture more data, analyse that data and use it to drive improvement and learning. There is a lot more that we can do on that. My sense is that there is agreement within the system to do that so that we learn, capture the data, analyse that data and use it to drive improvement, both at an organisational level and across the system, because those recurring themes are there, such as failure to listen and, particularly with SAIs, failure to identify. At times, people are saying, "We think that this is an SAI", and we look at it and say, "Yes, it absolutely is. I have the definitions in front of me for an adverse incident and a serious adverse incident". It is hard to understand, when something has that potential — it does not have to have caused harm; it is about the potential to cause serious harm — why that is not seen and taken forward. Sometimes, it is not even recorded on Datix. It has not gone on in the first place, so the checking mechanisms that would be there to perhaps trigger the SAI are not there.

Mr Donnelly: Sorry, can you explain that again? If there is no Datix record, how do you know that the incident happened?

Mr Martin: We get a complaint.

Mr Donnelly: You get a complaint that then triggers —.

Mr Martin: Yes.

Ms Kelly: It triggers an SAI, so we see it where there is a complaint.

I will say a number of things. Does the system work well in the vast majority of cases? Yes, it does. However, when things go wrong, is that system working well, on the basis of what I see in my office? No. We have seen many cases where it is the complaint — there has been a really serious incident. Normally, to be honest, it has caused actual harm. It is not where there is potential to cause harm but where there has been actual harm. That has not led to an SAI; the person complains and, as a result of that complaint, either coming to me or as part of that process, that is what triggers it. That does happen.

We talk to health trust leaders and health trust staff, and I think that they are committed to trying to deliver the best system, but, if you never look at what goes wrong and how you make it better, you will not improve. Improvement is a continuous process. When it comes to how we deal with harm, how we deal with people who make complaints and how we deal with addressing the issues that come from inquiries, we certainly have lots of improvement to make, and I think that it is part of that journey.

Mr Martin: I wrote down a quote from Liam Donaldson that struck me as relevant to the evidence that we are giving today. He said:

That is very relevant to what the Committee is grappling with and trying to take forward. That is from someone who was very much involved in the delivery of healthcare in England and contributed to some of the reviews and work that were done here. We all know that mistakes will happen. We need to own them, and we need to try to make it better and learn from that.

When I debated the issue with the health regulators, everybody agreed with the need for candour in the system. What we disagree on is how we get it to work, but we should not lose that prize. In the overall debate, we need to make decisions on that and then move forward. We are nearly seven years on from Mr Justice O'Hara's recommendations. Those recommendations had been made before back in 2013. They were made in England but they were not taken forward at that time, and we are now revisiting it with Hillsborough. In some respects, some of the evidence that the Committee has received has said that Northern Ireland might be an outlier and that it might be creating a problem for us in recruiting clinicians. I actually think that, if we get this right, the opposite could be true.

We all agree that there is a need for legislation and work on the culture around supporting staff and allowing them to speak up. That includes having speak-up guardians and work that is being done in other places. If we get it right, the prize is worth pursuing. All the different perspectives that we had in the debate on Monday and that there might be in this room are helpful for getting us to the right place, but we need to take decisions and move forward.

Mr Donnelly: One of the key objectives for the duty of candour is rebuilding public trust in the institutions. Public trust has been shattered by inquiry after inquiry. I noticed that your report notes that there is an upward trend in the numbers of complaints. We are getting worse; I do not think that we are complaining more. Do you think that there are more incidents, or are we complaining more?

Ms Kelly: That is a good question. In truth, I am not entirely sure of the answer. We have done quite a lot of engagement in the office. That was really important to me when I came in. We are the alternative access to justice. We are the alternative to the courts. We are free, independent and impartial. You need to know about that in order to use the office. When I came in, I had a concern that people were not really aware of the office and did not know exactly when to come and how to use us, so we have done quite a lot of engagement.

It is hard for me to say at this point what exactly is driving that trend. As you know, there is real pressure on public services. When there is real pressure and people are under pressure, things go wrong. It could also be because of that. It is quite hard to give a definitive answer.

When we do those big 52-week investigations, they are really thorough. They involve finely balanced judgements. We go to independent professionals in Britain and an equivalent clinical specialty to really consider the notes. When we do those investigations and make those findings, those are never done lightly. They are done with real rigour. We share those findings with the public body and the complainant. The things that I have drawn on to share with you are obviously some of my most serious concerns, but they have been rigorously and independently considered and investigated. I think long and hard before I say that, on the balance of probability, a death or incident of harm was preventable. When I am trying to make that judgement, the team and I draw on those clinical specialties that help us to do that. I just want to be clear about the fact that we do not arrive at those judgements lightly or without due rigour.

Mr Martin: Danny, we see harm that is caused by lack of resources. On occasion, when you ask, "What is the staffing complement for this ward?", you find that, when the harm happened, the ward was not at complement. People are doing their best in very difficult circumstances. One of the factors that the system has been struggling with is making sure that there are safe staffing levels. Safe staffing is an important patient safety issue.

Mr Donnelly: Certainly, we are very much in favour of that, and we hope that the Minister will bring it in. At the minute, the pressures that are on the system are incredible, so we hope that that will be the case.

Mrs Dodds: Thank you for your leadership on this. It is a difficult area. It is important that you give the leadership that you are giving. I know that judgements are finely balanced and that there are huge things at stake for families and patients as well as for staff. It is important to say that. I apologise for not being here earlier. I was at another event, which overran.

First, I am interested in following up on some of the stuff that Nuala talked about. I am really interested in learning and accountability. It seems to me that you have given us a very mixed picture on learning and accountability across the trusts. It seems to follow a general trend in health service provision to patients and the general population in which there is a lack of consistency across what is a relatively small population in Northern Ireland. We need to try to understand how we get to consistency, because, if trusts are to implement reform, which is about consistency and doing things better, but cannot initiate learning and accountability, that is a big problem.

Secondly, do you have stats on the length of time that some of your investigations have taken from the initial complaint to the trust to the final report? I really think that people are losing faith in the system because they have to fight it so often. I talked to Claire Roberts's parents this week, and, 30 years later, they still have court cases to deal with. That is intolerable. They may well be an exception, but the process can take a very long time, so if you had some statistics on that, it would be very helpful.

Finally, how do you make people accountable? I noticed a headline in 'The Times' — I do not know whether the paper made it up; I am sure that there is an element of truth in it — that quoted Wes Streeting saying that if NHS chiefs do not perform, they would be sacked. Where is the accountability mechanism in Northern Ireland?

Mr Martin: I will say a little bit about timescales and learning. We commissioned some research on learning from complaints, and it was found that there is not a huge amount of research to show how to do that learning well. We are drawing that together, and we will publish something to help us do that better and feed it into our work on complaints standards.

You asked about timescales. We see complaints that go on for years with HSC organisations before they come to us. The complaints are probably with us for a couple of years at the other side of that. We sometimes say exactly what you said: you have to be a marathon runner and have perseverance. We believe that there are people with genuine concerns and to whom harm has been caused, but they do not have the emotional capacity to pursue those through a complaints process. That is one of the things that we are trying to work on in the complaints standards process. We need to do our investigations more quickly and robustly and have a rigour in the process. That would mean that more of those issues would be addressed by the organisation and would not need to come to the ombudsman. Obviously, when it gets to us and that third stage, you would expect that we would take the time to meticulously consider everything. The hope is that the matter will be addressed much earlier.

While I cannot give you statistics, I know that, from the experience of me, Margaret and Corinne, we see investigations that go on for years. I have a lady who contacts me regularly, and she is still concerned and fighting about care that she received in 2006. It stays with people. The harm is compounded, and that is not good for anyone. Margaret and I met a lady to whom incidents happened 30 years ago, and she still carries those and a desire for justice, as she would see it. That is not helpful. We need to find a better way of looking more rigorously at the issues that are raised, providing answers earlier and feeding those back in order to help improve the system.

Do you want to pick up on accountability, Margaret?

Ms Kelly: We see a mixed picture with consistency. I do not think that that will be a surprise to anyone; you all see it too. There are issues with accountability. Accountability is not always as clear as it could be. The Department needs to look at a patient safety framework. The whole picture should be looked at, not just SAI and candour. If you look at the whole picture, the clear lines and mechanisms of accountability will be considered. I am not able to say to you, "This needs to change, and that needs to change", but there are issues, even with the inconsistency across trusts, such as how different people report on complaints or how different trusts deal with ombudsman reports. Notwithstanding the bigger issues of accountability, it all contributes to a patient safety framework and really good patient care. All those things need to be looked at, and that includes the workforce.

Mr Martin: I have heard it said that it should not be a postcode lottery. We would all agree that we are a small place, with around two million people. The safety of the service that you get should not differ depending on where you access it. Again, that is all about the accountability mechanisms and structures. Margaret is right: that could be a key issue for a patient safety framework, where we set out clearly who is accountable and responsible for delivering safe and effective care to patients. We are very clear that our healthcare workers do a really good job, and we have all experienced that and benefited from it. However, things go wrong, and it takes far too long for the open and honest explanation of what happened to come out.

Mrs Dodds: This is a huge and massively important subject. We have to remember also that our healthcare workers are almost holding up a broken system. That is not good for anybody, and it is not good for being open and transparent. We have to acknowledge the really important work that they do in helping us with health. Are the sanctions that are available enough? What are they, and how are they applied? Where there are sanctions, a £5,000 fine does not seem to be a lot of money to a trust. How do we get to real accountability?

Mr Martin: A monetary fine against a public-sector organisation is not really helpful, because you are removing money from —.

Mrs Dodds: You are just whirling it around the system.

Mr Martin: Yes. It is all about really considering accountability in the system and being clear about where those lines of responsibility and accountability lie between structures in the Department, including SPPG and other parts of the Department, and, in the trusts, the trust boards and senior management. There is a piece of work that could be done on that as part of a patient safety strategy or framework that sets that out clearly so that we all know where those lines lie.

Normally, the accountability in any organisation lies with the senior people, and, in most organisations, there is a board. It is the board's role to hold those senior people to account. If that board fails to perform, it is clear that the Department has some responsibility for that. It is about setting that out. Then, if we think that there has been a failure to deliver in the Department, what is the accountability mechanism for the Department? I assume that that is for the Minister and the Assembly. It is about looking at the various levels, determining where the responsibility and accountability lie and setting that out clearly. Fining a public service such as a trust, which is already under pressure, is not the way to do that.

Ms Kelly: There is a complexity to it. When I was looking across bodies, I looked at some of the Care Quality Commission's work on the duty of candour and the failure of organisations and, occasionally, individuals. It may be worth the Committee's asking someone to look at what the Care Quality Commission has done in that area. I had just a preliminary look.

We have significant medical negligence bills in Northern Ireland, which is the other thing that I looked at. I find that the people who come to my office are not looking for money; they are looking for things to change. The most common things that people say to me are: "I want to know what happened"; "I want somebody to tell me that they are sorry"; and "I want to make sure that it is not going to happen to somebody else". Those are three really good drivers to consider when you are thinking about how to help to make that change and how to have accountability. It is complex, and whle we are, obviously, involved in the complaints system, we are only a part of it.

Mr McGrath: Thank you for your presentation. This is such an important issue, not least because of the litany of examples that we have of where things have gone not just wrong but terribly wrong. Sean, you mentioned the Donaldson report, which goes back so many years, yet here we are and there has not been a single change to the system. We have not changed the culture or the organisation, and, by default, we are not changing individual behaviours. As a result, our offices deal day and daily with cases of people who are being impacted on.

I have a few questions on SAIs as an indicator of where things are going fairly badly wrong. You referenced the number of SAIs. Is that number increasing? How are we with benchmarking against other places such as England, Scotland and Wales? Are our SAI numbers higher or lower than the numbers in those places, or are they at a similar level?

Ms Kelly: I do not know whether you know, Sean, but I would have to go and check. It is hard to know whether the numbers are increasing or decreasing, because it is quite difficult to get the figures. Some of the trusts report the number of adverse incidents and SAIs in their quality report. I think that the Department does a central SAI report, but that does not show all the adverse incidents. I do not know whether you know, Sean, but I would need to check.

Mr Martin: A response was put up to a question on SAIs. I think that it covered up to September this year. That told me that the number varies considerably from year to year from maybe about 350 to over 500 serious adverse incidents. I looked at 2022-23, and Belfast Trust reported, I think, 51,000 adverse incidents and we found figures for some of the other trusts in that. The year before, I think, there had been 43,000, so there is a variation.

A piece of work needs to be done on that, which we have not done. We are not in possession of that data; those numbers come from us looking for them. If somebody collated the data, it would be useful to see whether the number of adverse incidents is increasing and whether the number of serious adverse incident investigations is increasing. As I said, serious adverse incidents are collated centrally and that information is available. I do not know that we have a sense that they are going up. You would need to look at the data over five or 10 years to see how it has changed.

You asked about comparisons. We mentioned the fact that England has changed its system to a patient safety incident response framework, so it is difficult to make comparisons with other jurisdictions. I certainly do not have that data. It might be useful to ask the Department; I am sure that it has done some reflections and comparisons as part of its work on the matter.

Mr McGrath: I appreciate that it is not your job to do that comparison, but it would be interesting to have a yardstick by which to measure whether candour or anything else that we put in place is helping. Maybe a superficial measure would be that fewer SAIs mean that the system or culture that we are getting is the right one to drive down the number. If places like England, Scotland or Wales are ahead of us because they have introduced various bits and pieces, we should be able to see whether that is helping their culture to improve, and, if it is not, we could learn from that to find other ways to improve the system. The key thing is to improve the outcomes for patients. If England, Scotland and Wales are delivering a system that does not drive down SAIs, that system may not be the one to use. We can learn from that and incorporate it into the changes that we bring in.

You mentioned a couple of cases of people deliberately and wilfully changing figures and facts, which is really worrying to hear. Did you say that that is breaking the law?

Mr Martin: That is not for us to discuss; it is for the agencies that do that work. Margaret alluded to situations in which there is a subject access request for information and someone wilfully destroys the records. All public services are subject to that. The things that we see are not that — they are not cases of people taking medical records and shredding them, though we have seen pages missing from nursing care booklets and so on because they have been removed. Again, those are one-offs; they are not frequent occurrences.

It would be interesting to see whether other areas of law cover that sort of thing. Clearly, it would not be their intent to cover it, but they might. It would be much clearer if we were clear about what is acceptable behaviour. That goes back to our decoupling the duty of candour from something that, we would say, appears to be criminal behaviour, meaning the wilful destruction of records or wilful cover-up.

Ms Kelly: At the moment, we go to the professional regulator with those cases. To me, that does not seem to be appropriate conduct for someone who is in those professions. At the moment, my route, if you like, is to share such reports in detail with the professional regulator and ask it to undertake its process. I share the report, and it undertakes its process, in which it considers my report. It interviews the person and decides what action to take. My understanding is that that is the route. I do not know whether there are other legal routes, but we go down that route. The legislation specifically allows me to do that in those circumstances.

Mr McGrath: getting in the way of your investigation should be something that people should be able

Margaret. [Laughter.]

Finally, you said that investigations can take years in the trust and your organisation. I ask this gently, and I know that you are interacting with the processes that are in another place: how, under God, does it take years? Do you not just put people in a room and say, "We are dedicating the day to this"? I presume that it is down to your people writing to others, those people saying something and you having to write to other people and waiting until they come back to you. If we are honest about it, should we not put people in a room or a space for a day or a week to try to get something done? It is just not acceptable for the process to go on for years literally because of letters and email chains going back and forwards waiting for people to answer things. Is that what is taking the time?

Ms Kelly: In our experience, a number of things can make investigations take time. It is partly what I call a "drip, drip, drip". Someone might raise a significant or serious complaint, and the first response is, "No, there was nothing wrong there". The person then says, "No, there was, and I want to know exactly what it was", so you get a drip, drip, drip of information. In my experience, that really damages trust and confidence. It is much better for people to come out and say, "You have raised this incident. There is potentially an issue. Let us take a proper look at it, and we will come back to you". People get caught in a process, and sometimes trusts will go over and over a process.

I understand that trusts are balancing a number of things — staff needs, clinician and medical views and opinions and patient needs — and they have to pull all those together. There are other issues, particularly when it comes to SAI, about the level of training that we give people doing SAI reviews and about the level of independence of chairs and how well they are supported in that. You can get into a real round, particularly when something is serious. Sometimes, as it moves on, more and more information comes out. Often, people end up coming to us in those situations because they feel that, every time they ask a different question, they get a bit more information and because they have lost their trust. It then comes to us. The person brings their complaint to us, and we go to the public body and say, "We have had this complaint. Can you share something with us?". It is then a matter for us to really begin to look at those documents and records and take clinical advice on board. That is a little bit of it.

We did some work in which we spoke to complaint handlers not just in trusts but in other public bodies, and, to be fair to them, being a complaint handler can be quite a difficult job. They can often find themselves caught between a rock and a hard place. Complaint handlers have to go back to whoever provided the care and ask them to give them the care records and provide a response. One of the red flags that we saw in the neurology inquiry report was the failure of the consultant who was involved in that to engage with the complaints process and to properly and appropriately respond when complaints were raised.

The time that it takes is partly because we do not get everybody in the room and because of the chains that go backwards and forwards, but it is also about managing that complaint and about complaint handlers trying to get responses. We have been doing some work with the trusts, and, again, there is an inconsistent pattern with them. Some are doing really well at getting responses out, and some are doing less well. We have been trying to do some work with them. We have met all the chief executives and shared with them where their trust is with providing responses. It is about trying to help people improve, and that is the focus of our work, but sometimes that also means sharing the difficult things that we see.

Mr Martin: If we start to have an open culture and to embrace complaints as something from which to learn, one indicator that we might see is the number of complaints going up and more complaints being resolved locally. There is a pressure in the system, in that it is clinical staff who respond to the complaints. They are really busy delivering care but then have to find the time to respond to complaints. It is therefore about the importance that is attached to an SAI or a complaint, and that comes from the leadership of the organisation saying that learning from SAIs and complaints is really important. That message has to come down through the system.

Margaret is right. When we engaged with the complaint handlers, it is fair to say that we found that some of them felt unsupported. When they said, "Look, we need to get a response to that person", they had nowhere to go. A complainant wanted a response, but the complaint handlers were provided with no real leadership support. No one internally in the organisation was saying, "My complaints team are really important, so when they ask you about a complaint, you need to give them a response. The complaint needs to be looked at thoroughly to enable them to respond to the complainant". If we get the work on the complaints standards right, we hope that, over time, people will get answers more quickly, that those answers will be clearer and that people will get what they want from the complaints process.

Mr Chambers: I apologise for not being here for the start of your presentation, Margaret. I appreciate and fully support the work of your office.

An organisational duty of candour is in place in England and Scotland and was recently introduced in Wales. Have you had any feedback from colleagues in those jurisdictions on how the organisational duty of candour is working for them, or are they pursuing the addition of an individual duty of candour, with a criminal sanction attached?

My second question is about the unintended consequences, which have been mentioned, of having an individual duty of candour with a criminal sanction. Does your organisation recognise the potential for there being unintended consequences that could have an adverse effect on patient care generally? Do you take that into consideration when adopting a position on the issue? I fully understand why you have adopted the firm position that you have, but will you give me some insight into those issues?

Mr Martin: I will talk about what is proposed here and what is happening elsewhere with the organisational duty of candour. Justice O'Hara proposed a wide-ranging organisational duty of candour that goes beyond health trusts to cover all the relevant organisations, including the Business Services Organisation (BSO) and the Patient and Client Council (PCC). Our view is that that is the right way in which to go about it. Sometimes, the point of the law is to say what we expect as a society. It is not about taking people to court and criminalising behaviour but about setting a standard. We have good examples from over the years of legislation driving change. Some of us who are old enough will remember a time when we drove about without wearing a seat belt. That was a huge safety issue. When the law changed, however, there was a change in behaviour. We also debated the risk of second-hand smoke to workers for years and years before eventually taking the plunge and saying, "No, it is not OK to smoke indoors, as it creates a risk to others". Sometimes legislation is therefore about saying very clearly, as a society, "We now believe that that behaviour is not acceptable, and we are going to act to protect you all".

The organisational duty of candour is part of that. It is about saying not just to health trusts but to the entire public sector, "We expect you to be open, honest and candid in how you deliver things. If something goes wrong" — the way in which the legislation works elsewhere is that incidents have to be above a certain threshold — "you need to be open about it". People should be open when things go wrong, full stop, but the duty when serious incidents occur is on people to come out and tell the patient and the patient's family. I do not have any direct information to suggest that the organisational duty of candour is working particularly well in Wales, where it has just been introduced, or in Scotland or England. I have not received any feedback to suggest that there is something that we can learn from others. Departmental officials are probably looking at what best practice looks like so that, when they consult on the Being Open framework, we may get some more helpful information.

Margaret, do you want to deal with the adverse effect on staff of the individual duty of candour with a criminal sanction?

Ms Kelly: Alan, we have talked to health regulators about that. Sean and I have been invited on numerous occasions to talk to nurses, GPs and other doctors, and you will not be surprised to hear that that comes up. Do I think that taking a decision on having an individual duty of candour is easy? I do not. Rather, it is quite a difficult decision. It is easy to say that individuals have an individual duty of candour, but every single healthcare professional has that duty under the professional code. We still know, however, that that is not working well in practice. We said earlier that we think that you could place a legislative duty of candour on individuals, which I think is about setting standards, and that you could then have a separate offence about wilfully covering up an incident. Separating out the two things for healthcare professionals may make it clearer to people that it is not about their making a mistake. That is one way of doing it. We gave our response some time ago, and, the more that we have thought about it, we have started to think, given all our conversations and given the fact that people definitely confuse making a mistake with wilfully covering up, that that might be one way in which to deal with an individual duty of candour.

It is interesting, because what has been said there to date seems to indicate that England is moving in the direction of having an individual duty of candour with a criminal sanction, not just for healthcare professionals but for senior public servants. Was my call a difficult one for me to make in the office? It was. Introducing a criminal sanction will be like the one that is there under GDPR for all of us, in that very rarely will you see it used. On balance, I came down on the side of thinking that there needed to be something included in order to move us forward properly. I understand when healthcare professionals say to me that having a criminal sanction is difficult. It is also part of the reason that, as senior public officials, we should all have that responsibility put on us so that it is not just peculiar to healthcare professionals. I accept that there are two sides to the debate. In making my decision, I went on the basis of my experience in the office. It is for all of you as MLAs to make the call. Although I can express an opinion, it is thankfully not my decision to take.

Mr Chambers: Thanks for that.

The Chairperson (Ms Kimmins): We are well over time, and I am conscious that we have two more briefings to follow. For all of us, however, this is such an important topic. I have to say that yours is probably one of the best briefings that I have received in Committee. It has been very clear, and it has really helped crystallise a lot of our key questions and concerns. Thank you all. We really appreciate your time.

Ms Kelly: Thank you, Committee.