Issue 37 June 2007 - Human Rights and the Scottish Public Service Ombudsman

"Human rights are universal principles, but, inspiring as those principles are, none implement themselves.

Good governance, effective institutions, adequate material resources and international support are usually what make the difference between noble aspirations and effective realisation." Kofi Annan (2003)

 

Introduction

 

Like many Ombudsmen throughout the world, the Scottish Public Services Ombudsman ("SPSO") has been exploring the relevance of human rights to their work. This issue has been brought into sharper focus by the setting up of two new bodies-the Commission for Equality and Human Rights ("CEHR") with a Scottish Commissioner, and the Scottish Commission for Human Rights ("SCHR").

 

The SPSO welcomed the decision of the Scottish Parliament to create the SCHR. It also welcomed the setting up of the CEHR and the role that both organisations will play in promoting the principles of fairness, respect, equality and dignity. The SPSO looks forward to entering into Memoranda of Understanding with both bodies at the earliest possible opportunity in order to set out and clarify respective and individual roles and responsibilities.

 

Background

 

The word "Ombudsman" derives from a Swedish term for "agent or representative of the people". The modern form of the office originated with the ]ustitieombudsman, established by the Swedish constitution of 1809 to oversee the Parliament and supervise public administration in government. Relatively few countries had Ombudsman before the

1960s, when the older democracies, such as the United Kingdom, started to use the institution as a way of tackling citizens' problems in dealing with public administration. In subsequent waves of expansion, Ombudsmen were established in many newer democracies as part of a commitment to the principle of democracy and to respect human rights.

 

The purpose of an Ombudsman can be defined as promoting and protecting individual rights. Citizens can bring their complaint to an Ombudsman if they have a concern about the way in which they have been treated. Public Service Ombudsmen, such as the SPSO, deal with complaints about administrative injustice and service failure by public bodies. They have the power to investigate, report and to make recommendations to both remedy individual hardship and to improve public administration and service delivery.

 

The SPSO

 

The SPSO was established by the Scottish Parliament in 2002 when three Ombudsmen offices were merged to create a "one-stop-shop" for complaints about public services in Scotland. The SPSO Act (2002) stipulates that the remit of the SPSO is to investigate complaints from members of the public that they have experienced hardship or injustice as a result of the administrative actions and/or service failures of a public body.

 

The actions of public bodies in Scotland have daily impact on the lives of most individuals. A primary role of the SPSO, therefore, can be seen as protecting individuals from the violation of their rights by public bodies. However, the SPSO is not an advocate for the individual, or a defender of public bodies- it is an independent and impartial investigator, and wherever possible, resolver of disputes. The SPSO cannot force bodies to comply with any findings or recommendations it makes and as such does not determine civil rights and obligations.

 

The SPSO's jurisdiction is very wide. It covers public bodies in Scotland, including local government and the NHS, the enterprise bodies, housing associations, the Scottish Executive and devolved administration, Scottish public bodies and further and higher education. The SPSO investigated over 1,800 complaints last year, and also dealt with almost 2,400 enquiries on a broad range of issues.

 

Sharing the learning

 

Complaints to the SPSO that proceed to investigation result in an investigation report. These reports may contain recommendations to the body, but the kind of redress that they provide is very far from "compensation". Recommendations frequently include that a body apologise to an individual, review a procedure or policy that has given rise to the complaint or take practical steps to put a person back into the position they should have been in had the injustice or hardship not occurred. The SPSO has a large degree of flexibility and practicality in what it can do to remedy injustice. Most individuals not only want their personal injustice to be remedied but want to ensure that the injustice does not happen to somebody else. The latter is the second part of the work of the SPSO: to go back to the body and check that lessons have been learned.

 

The SPSO is required to report investigation outcomes to the Parliament and in doing so the SPSO assists the Parliament in its functions of overseeing the work of public services in Scotland and, where necessary, of holding the Scottish Executive accountable for its actions.

 

Investigation reports laid before the Parliament are public documents. This allows best practice to be shared among bodies and any lessons for improvement to be drawn. The Ombudsman writes a Commentary that accompanies the set of reports that is laid before Parliament each month. The Commentary, which is widely disseminated to bodies under jurisdiction, MSPs, the Scottish Executive and other stakeholders, is the vehicle the Ombudsman uses to highlight issues and trends.

 

The SPSO and Human Rights

 

In an important sense, human rights are based on the desire to protect the inherent dignity of human beings. The SPSO believes that dignity is about seeing a person as a full human being whose presence matters. The SPSO has stated, in a submission to the Justice 1 Committee of the Parliament that "Human rights are fundamental to the concept of good public administration." The submission went on to state that:

 

"Although the legislation governing the SPSO'S remit makes no direct reference to human rights, some of the complaints we deal with are in fact issues of breaches of human rights (for example the right to peaceful enjoyment of property or to suitable care for the elderly). Further, maladministration may involve more general inconsistencies with human rights concepts, for example when a public authority fails to give adequate information regarding rights of objection or appeal."

 

The SPSO's point is that, rather than view human rights as an abstract concept, we should recognise that it is a day-to-day issue for most people as they go about their business, and that aspects of human rights arise through delivery of services to those people. For most people in Scotland, that is the most direct way in which they will encounter human rights issues, and it is an indication of the type of issues that the SPSO deals with daily. An Amnesty International

Report in September 2006 made a similar point:

 

"What do human rights mean in practice to all of us who are served by public authorities in Scotland? It means having your wheelie bin uplifted if you cannot do it yourself. It means having a genuine ability to choose your child's school. It means having a hospital A &E department which you can access. It means being able to get home by public transport whatever your age, stage or level of physical fitness. It means being able to have a real chance of influencing planning decisions or protesting about the establishment of a landfill site or mobile phone mast in your neighbourhood."

 

The SPSO agrees with the view of the Irish Ombudsman, which is that maladministration encompasses human rights issues and that ombudsmen should take the broadest possible view of their role and see it as encompassing two principal aims: promoting respect for human dignity and protecting individuals who are dependent on public authorities.

 

First, in common with all Ombudsmen, the SPSO recognises that complainants have the right to take legal action in relation to human rights violations and that in many cases this may indeed be the most appropriate course. However, the SPSO considers that it is not always reasonable to expect an individual to resort to what can be costly and adversarial court proceedings in order to seek an appropriate remedy to administrative human rights breaches. A choice of means of redress for citizens is a hallmark of developed democracy.

 

Secondly, it is the SPSO's experience that there may not always be an appropriate legal remedy to meet the needs of those who consider that their human rights have been violated. Ombudsmen schemes can often provide a flexible and creative remedy that a court could not and they can hold bodies administratively liable even where there is no statutory liability or legal duty of care. The SPSO also knows that many legal claims are settled out of court without the admission of fault or explanation. This gives no assurance to the complainant that any action has or will be taken to prevent the problem happening again and this is often a matter that greatly concerns them.

 

Human Rights Complaints investigated by the SPSO

 

The following two case studies illustrate the human rights dimension of the SPSO's work:

 

Case example: Dignity and respect in hospital

 

Mrs C complained about the nursing care received by her late father, an elderly man with dementia. She said that prior to admission her father had been mobile, talkative and continent, but on the first visit to see him in hospital she found him barely able to speak, unable to feed himself, incontinent and his right arm paralysed. At later visits, the family would often find him lying in bed soaked in urine and sweat with the constant struggle of trying to get up. They frequently had to ask for the linen to be changed before the visit could start. They often found him unshaven and on occasions lying in bed covered in nothing more than an incontinence pad.

 

Findings: the nursing staff failed to maintain the patient's personal hygiene and dignity, failed to ensure his nutritional needs were met and responded poorly to family concerns.

 

In her May 2006 Commentary, the Ombudsman summed up many of the themes that are brought out in investigations into health complaints. She stated:

 

"It is disappointing that poor communication and inadequate record-keeping are still causes of confusion and anguish for patients and their relatives. The quality of available nursing care, especially for the most vulnerable members of society-the elderly, the infirm and those with mental health problems remains an ongoing concern".

 

In relation to the complaint outlined above she stated that:

 

"Dignity and privacy are basic human rights and I am very concerned that they were denied by a public service to a vulnerable member of society".

 

Specific recommendations arising from this complaint included that the Health Board should apologise to the family for the failings identified and change procedures on all wards as a matter of urgency where vulnerable patients may be cared for.

 

The SPSO's most recent Annual Report stated: "Health professionals must attend not only to the physical symptoms of people in their care but also demonstrate respect for their emotional and psychological wellbeing. That translates into simple things like brushing hair and cleaning teeth and, crucially, keeping patients and relatives informed about treatment. These may seem too obvious to mention, and of course the vast majority of health professionals do adhere to the highest standards of care. This office though, sees too many complaints concerning just such matters, and it is our duty to investigate and where appropriate make recommendations to try to bring about improvement in the delivery of health care."

 

Case example: Young men with special educational needs ("SEN")

 

The complaint related to the transport of two young men aged 16 and 17, who have special educational needs, to and from their school. One of the young men had Cerebral Palsy and Spastic Quadriplegia, and required the use of a wheelchair at all times. The other had a severe learning disability, had a spinal steel rod in his back which restricted his movements and also used a wheelchair. Their parents complained to their council about the treatment of their sons by members of a bus company's staff while they were being transported to the special educational needs school. The SPSO investigation upheld aspects of the complaint and made several recommendations to the Council, including that the Council make a redress payment to both sets of parents in recognition of the anxiety and frustration they suffered during the course of their dispute with the Council, and for their time and trouble in pursuing their complaint, and issue them with a full, formal apology for the manner in which the Council dealt with the school transport dispute.

 

The Ombudsman's Commentary went further and gave the most explicit comment yet about the SPSO's approach to human rights:

 

"Although this specific complaint did not refer to human rights when it was presented to my office, the investigation demonstrates the requirement on public bodies to be mindful of human rights when they design and implement their policies and procedures. The Human Rights Act 1998 sets out the rights that need to be taken into account in the delivery of public services. The law on human rights is no different from any other law that my investigators may consider when looking into complaints. In this connection, I believe that the role of my office includes the promotion of respect for human dignity, particu1arlywhere vulnerable people and their families are concerned. My expectation is that public authorities are not only technically compliant with the law, and with their own policies and procedures, but that they make decisions and take actions that further an approach that integrates human rights into their work."

 

Ombudsman's Commentary, January 2007

 

Implications for the SPSO of a more pro-active approach to human rights

 

As awareness of human rights grows, the SPSO is receiving an increasing number of complaints that explicitly mention human rights. In some cases, it is an appropriate reference and there is an identifiable breach of an individual's rights; in other instances, "human rights" as a legal concept are used loosely in a general sense of "I wasn't treated fairly". Dealing with "unfair treatment" is not a new concept for SPSO complaints investigators, but human rights legislation-which makes implicit as well as explicit demands on public bodies--does present a new challenge.

 

These practical implications have come out of discussions both within the SPSO and with other public service ombudsman schemes in the UK and Ireland:

·         Ensuring that staff considering complaints have sufficient knowledge to understand the relevance of human rights whether or not the complainant specifically identifies human rights as an Issue;

·         Guidance to staff on how to handle any jurisdictional issues that may arise in relation to possible court remedies for any contravention of human rights;

·         Managing the complainant's expectations the SPSO cannot determine whether an individual's rights have been unlawfully breached, only the court can do this-but the SPSO can take account of the human rights of the complainant and can investigate how the relevant public authority has taken these into account in its actions or decisions affecting the complainant;

·         The need for ground rules for investigation staff about when it is necessary or desirable to make specific enquiries of the public authority relating to human rights issues and, if so, to provide guidance to staff on the types of enquiries that may be appropriate (e.g. reflecting the principle of proportionality);

·         Ensuring that, as a public body itself, the SPSO adheres to the highest standards of human rights principles in all its internal and external activities;

·         Where there is any apparent failure to respect a complainant's human rights, to include relevant recommendations to the authority in the Ombudsman's recommendations for a remedy, e.g. suggesting a review of the authority's policies or procedures for compliance with human rights legislation or recommending that the authority ensures that in its decision making processes there is an explicit assessment of any human rights implications of what is proposed; and

·         Capturing information when human rights considerations have been influential in decisions on complaints and feeding this learning back to public authorities through annual reports, digests of cases or advice and guidance on good administrative practice.

 

The SCHR will look at human rights issues which relate to devolved matters in Scotland and the SPSO believes that the roles of the two bodies are complementary. The SPSO will continue to deal with complaints from individuals about administrative and service failures which contain a human rights component. The SCHR is not charged with investigating individual cases, but it does have an important power that is not within the SPSO's legislation-that of conducting self initiative inquiries. As is the SPSO's practice with other bodies such as Parliamentary Committees and advocacy groups, it is the intention that SPSO investigation reports and other evidence from complaints could be used by the SCHR and the CEHR as a means of uncovering or highlighting breaches of human rights. In this way, the SPSO can make a contribution to building a society in which individuals are treated with fairness, equality, respect and dignity.