Public services ombudsman for Wales wants more privacy power

Wales could become the first UK nation to have an independent watchdog with the power to stop the publication of some of its reports and to prosecute those who go against its wishes.

Public Services Ombudsman Peter Tyndall wants more confidentially powers to protect vulnerable people.

It would mean complainants could face contempt of court charges if they go to the media.

But some warn it would mean less transparency.

Mr Tyndall has legal powers to review complaints about public services such as hospitals or councils in Wales.

Reports following an investigation are always anonymous with names of complainants and those associated with the complaint always removed.

Currently, the ombudsman can choose not to publish reports but he does not have the power to stop a complainant speaking to the media.

While giving evidence on the Social Services and Well-being Bill to the Welsh assembly's health and social care committee, Mr Tyndall said he wanted to do more to protect vulnerable people.

He said he wanted to use the bill to amend the Public Services Ombudsman (Wales) Act 2005 to extend confidentiality powers already in it.

"At the moment, I have the power to issue an instruction to a body in my jurisdiction not to publicise; that is to treat my report as confidential," he said.

"However, that power does not bind any other parties in the case.

"So, potentially - and we have seen this happen - a complainant can decide to go to the press, even though in doing so information about vulnerable individuals can be revealed."

Elizabeth Thomas, the director of investigations and legal advisor for the ombudsman, who was also at the meeting, added: "In effect, if someone disobeys that instruction [to keep a report confidential], the ombudsman has the powers to certify it as contempt of court, which exists in relation to, for example, someone who obstructs one of our investigations."

However, a number of legal experts told BBC Wales that they believe it is the duty of the justice system, not the ombudsman, to decide whether confidentiality outweighs public interest.

Matthew Nicklin QC, a barrister for 5RB Chambers, said he thought the dangers were "obvious".

"The public expect an ombudsman's service to operate with transparency," he said.

"You can't have a service which operates behind closed doors because none of us would know what's going on.

"I struggle to see how it can ever be right for the ombudsman to produce a report in private."

'Valuable learning tools'

He added: "The ombudsman is one of the processes by which you can complain. It's wrong that as a price of complaining to the ombudsman, you ought to be signed up to some confidentiality undertaking."

Meanwhile, the Welsh Liberal Democrats warned if Mr Tyndall was able to keep some reports completely confidential it could prevent lessons being learnt from a public body's failings.

Party leader Kirsty Williams AM, who sits on the health and social care committee, said ombudsman's reports were valuable for people to learn from past mistakes.

"These reports often highlight significant failures in public bodies and if we're to stop those failures from happening again, we need to learn lessons," she said.

"And those reports need to be available to the public, they need to be available to politicians and they need to be available to other public service organisations that can look at those recommendations and test them against the practice in their own particular organisations.

"So if we're to learn from mistakes when things go wrong, these reports are a valuable learning tool and they should be available."

Speaking on BBC Radio Wales' Good Morning Wales programme, Mr Tyndall said: "We deal with complaints about individuals, some of whom are the most vulnerable in our communities.

"It's very difficult to anonymise cases about people whose circumstances are very particular.

"Let's say someone who's got a dispute about gender reassignment surgery. They would be very keen not to see any information come into the public domain."

Mr Tyndall said it was not realistic to expect someone who was vulnerable to take out an injunction if their details were to be included in a report a complainant wanted to make public.

"We've seen some individuals who have become, if you like, parts of other people's arguments and having their information come into the public domain can be personally damaging to them.

"We want to be very careful that information that might be detrimental to individuals shouldn't be allowed to come into the public domain in that way."

In a statement he also said just because a report is not given public attention, it does not mean he does not take action to ensure that the lessons from his investigations are learnt by the public body concerned.

He said the power to keep a report completely private would only be used on very rare occasions.