BIOA Legal Panel Meeting 25 October, 2013 held in the Garda Ombudsman Commission, Dublin
Items 1-3
Michael O’Neill, of GSOC,welcomed everyone. He gave general background on GSOC’s work.
Marie Anderson, of the Office of the Northern Ireland Ombudsman, dealt with items 1-3 on the agenda and these were agreed.
Item number 4
Guest Speaker, Catherine Pierse of the Enforcement Division of the Central Bank of Ireland – “the Role of Regulation in Enforcement”
Catherine previously worked in GSOC and has an interest in how regulatoryagencies and ombudsmen might work together to be of mutual benefit to each other. She explored the issue of information exchange and whether Information from specific cases could/should that be shared? Data protection issues arise inc. that the law in that field is untested re sharing for regulatory (rather than criminal law) purposes.
She also raised the question of why the roles of regulator and ombudsman exist separately and she explored the possibility of one body performingboth the functions. However she considered that, if the functions were merged,the regulated market might cease to co-operate and, therefore, there remains a need for both sanctioning and redressas two separate bodies.
Comments:-
- Marie Anderson (Office of the Northern Ireland Ombudsman) noted that information sharing rights can exist among some agencies;
- There was some discussion around differing mandates of ombudsmen inc. their powers and roles, sanctions/redress function of different bodies. Some ombudsmen investigate,some also adjudicate and/or impose sanctions and/or make recommendations etc.
- There was consideration of the impact of ombudsmen moving more into regulation - however, in some areas it has been found to produce less co-operative stakeholders. In many cases complaints are low level conduct/customer services issues;
- Liz Thomas (Public Service Ombudsman for Wales) explained how that office had worked with a regulator to enable them to take on board changes to their systems to achieve, not just short term relief, but longer term improvements;
- Niamh McKeague (GSOC) indicated that the potential outcomes of the complaints process (what could this lead to) is sometimes raised by complainants and can influence the level to which they are willing to engage with the process;
- Anne Harding (Office of the Parliamentary and Health Service Ombudsman)discussed the high bar that must be met when sharing information with the health regulator. There was also some panel discussion around “choosing” to provide information and being “compelled” to do so.
- There was also some panel discussion around sharing information (inc. about complainants) with the police - inc. the risk of alienating complainants/witnesses who reveal possible criminal issues – and the need to strike the appropriate balance.
- There was some general panel discussion in relation to an approach to requests from the police for information for purposes of investigations inc. in serious cases (e.g. life/death or serious harm) where one may be dealing witha statutory bar/restrictions to information sharing.
- Tony McCourt (Ombudsman for the Defence Forces Ireland) advised that his office can, subject to certain statutory restrictions, share information with the Department of Defence and the Defence Forces.
- Peter Whitely (Pensions Ombudsman) advised that his office has a statutory list of bodies with whom information can be shared, including the regulator;
- Marie Anderson (Office of the Ombudsman for Northern Ireland) has refused a request from the DPP for information, but has twice shared information with the Medical Council (who then hold hearings in public, but her office requeststhat the information should be treatedas confidential);
- Imran Abrahams (Office of the Independent Adjudicator) advised that his office has shared information with GMC or NMC where they have found a systemic issue. Complainants must sign up to a set of rules when making a complaint, including that the CEO can share information if they think it appropriate. Undertakings not to share information are also sometimes requested from complainants.
Item number 5
Update on the Human Rights Project undertaken in the Office of the Northern Ireland Ombudsman
Marie Anderson (Office of the Northern Ireland Ombudsman) gave an update on their office’sproject with the Northern Ireland Human Rights Commission. An intern is providing training to staff and drafting a manual. They are considering assessment and validation processes.
The intention is not to declare human right breaches but to ask ‘where is your human rights policy, and how have you implemented it in this case?’
Resistance to adjudication on human rights was discussed. NI Ombudsman’s position statement on maladministration was considered, i.e. guilty of maladministration because in this case you failed to consider the human rights of the complainant.
After lunch
Item number 6
Update on Members jurisprudence/cases
Ros Foster (Browne Jacobson Solicitors)discussed a disability discrimination claim.
Marie Louise Lowry (Elliot Duffy Garrett Solicitors)discussed the difficulties with personal litigants and the time involved in dealing with them.
Tony Child (Browne Jacobson Solicitors) discussed a case involving the Northern Ireland Ombudsman, at Court of Appeal stage, involving an alleged failure by a doctor to treat a patient who died of a heart attack. He explained that there were important issues under consideration including the extent to which the Ombudsman can report to the Assembly on its findings and alleged Human Rights breaches –Articles 6 and 8 ECHR.
Discussion ensued in relation to privilege attaching to legal advice and the ability to compel organisations to disclose this.
Ros Foster (Browne Jacobson Solicitors) discussed the Supreme Court case of Kennedy in relation to Article 10. Mr Kennedy, a journalist,wanted a copy of a statutory report from the Charity Commission and argued that once the enquiry was finished he should be entitled access to the report having regard to Article 10 andaccess to information. Mr Kennedy’s argument centres on what is the point of having right to expression if I do not have information to comment on. He says you must read exemptions down to comply with Article 10 rights. The report followed a statutory enquiry and FoI has specific exemption. Kennedy is seeking clarity from the Supreme Court as to whether Article 10 comes into play.
There was also some discussion on data protection inc. data controllers –v- data processors of information and documentation.
Niamh McKeague and Michael O’Neill (GSOC) gave a general briefing on inquests and Article 2.
Item number 7
The Legal Interest Group Database
Andrea McIlroy (Office of the Northern Ireland Ombudsman) updated the group on the developments. The format of the current database is changing and the new format will include: categories – case headline –topic – citation – and then comment. There will also be a list of key references and links to judgments.
Theywould appreciate if members could provide cases to them in this format.
Item number 8
Virtual Hub for Administrative Justice Research and Development
It was suggested that there is a gap in the research and the intention is to bid to the Nuffield Foundation for monies. There was some discussion on whether it is a good idea to have a central hub where academics can engage in research.
Item number 9
Update on Ombudsman Association Matters
Ian Pattison (the Ombudsman Association) advised that the Ombudsman Centre at Redding has been established by Professor Roy Gregory.
Other developments:
- Protection of the Ombudsman – “ombudsman” to be a protected name and will need permission from Secretary of State. It is to be a criminal offence to call yourself an ombudsman without permission.
- Strategic review of organisation. Four of the larger members raised funds to commission research and will approach all member schemes. The hope is to have a seminar of office holders in January in relation to how the organisation should look over next 5 years.
- Seminar on 12 December, 2013 on Quality Assurance. Scottish Public Service Ombudsman hosting.
- No newsletter for a while – printed version abolished six months ago and online version abolished in favour of continuous blog.
- Interest group meetings – this is the first of a series of group meetings over next two to three weeks.
- 16 and 17 May, 2014is the next annual event in Manchester – workshops and formal annual meeting at University of Manchester.
Ian Pattison advised that he will be stepping down next year.
Item number 10 – Open Forum
Review processes were discussed.
Anne Harding (Office of the Parliamentary & Health Service Ombudsman)advised that her office operates an internal review process that is separate from the investigation process, but there are also external reviewers and complainants are notified of the review process.
Annabelle Cyprys (Office of the Pensions Ombudsman) stated that her office has a statutory review scheme.
Marie Anderson (Office of the Northern Ireland Ombudsman) indicated that her office operates an internal review mechanism only. To date this has resulted in a small number of cases being re-opened.
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