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Note Of Decision Web Version

Complaint nos. LA/WL/797 & LA/WL/811 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor Ellen Glass of West Lothian Council

1. Complaint numbers LA/WL/797 and LA/WL/811 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor Ellen Glass (“the respondent”).

2. It was alleged that the respondent had contravened the Code, in particular, Section 2 relative to the Key Principles of Duty and Leadership.

3. The persons complaining Mr Jim Devine MP (“the first complainant”) and Dr Charles Winstanley, Chairman, NHS Lothian (“the second complainant”), alleged that the respondent entered a ward at St John’s Hospital Livingston on 21 October 2008 and posed as a member of hospital management, or posed as a Member of Parliament or posed as a Member of the Scottish Parliament to access confidential papers at a nurses’ station.

4. The two complaints received deal with the same course of conduct or, alleged conduct by the respondent. Both complainants considered, essentially, that the respondent had abused her position as a councillor and acted in a way that was improper. It was the case that, (unlike the Code covering Councillors’ Conduct in England and Wales), there was no provision made for alleged actions by a councillor bringing the office of councillor into disrepute.

5. I found that as the Code was framed, the alleged actions of the respondent on 21 October 2008 fell to be considered in terms of section 2, specifically, the Key Principles of Duty and Leadership.  The Code covered specified actions of a councillor whilst acting as such. I noted that the subject matter of this complaint dealt with alleged actions in a hospital facility. Whilst it was generally the case that complaints against councillors derived from the statutory functions of the local authority to which a councillor was elected, having considered the particular evidence in this case, it was clear that the respondent was acting as a councillor on this occasion.

6. The context of the two complaints was a situation of some tension between NHS Lothian and West Lothian Council regarding the health services provided in the West Lothian area and in particular at St John’s Hospital, Livingston. There were clear divergences of opinion between these two authorities on the nature and extent of the services assessed as being required. (Scottish Government policy in this sphere in recent years had focussed on the need for community health partnerships between the NHS and Local Authorities to ensure the most efficient provision of services and use of resources.)

7. It could be said however that the public perception of a number of voters at the last Council election about the services provided by St John’s Hospital was such that they elected 3 councillors to West Lothian Council who stood on a political platform as “Action to Save St John’s Hospital”. They formed part of the Administration of that Council and the respondent was a portfolio holder, namely, as Executive Councillor: Health and Care.  In view of the respondent’s known public political platform, it was clear that she had developed a working pattern of dealing with individual concerns of patients and also staff at St John’s Hospital.

8. I found that the respondent’s action in deciding to visit a ward of St John’s Hospital on 21 November 2008 had to be criticised.  She interrupted a member of staff who was going about her busy professional duties at a point the respondent herself recognised (from her own past nursing experience) was a busy time. That member of staff had no prior knowledge of the respondent. She had only commenced working several weeks previously and had had no management information provided to her about the Action to Save St John’s Hospital Group on the Council or the Stop the Downgrade Campaign. She had no interest in, or knowledge of, local politics.  The member of staff was in the middle of a complicated task and it was quite clear that, however the respondent first spoke to her, it was not sufficiently clear to enable the member of staff to understand, from the outset of the conversation, the respondent’s identity and her precise purpose in being there. 

9. In contrast, I found that the member of staff could not be criticised in any way for how she dealt with the encounter in all the circumstances. Her remark that she felt “tricked” in some way was telling. That standpoint was entirely understandable. She had been extremely anxious and upset about the matter. During the course of the conversation with the member of staff, greater clarity about the identity of the respondent was achieved when her business card was presented. It was indeed unfortunate that this had not been presented immediately on arrival. (It was noted that the respondent’s attempts during the conversation to commiserate with the member of staff about the nature of the nursing duties in that type of ward only lead to further uncertainty about the respondent’s purposes in speaking to the member of staff.)

10. I counselled the respondent to consider carefully how she should action any constituent matters brought to her attention and to review what were the most appropriate approaches to take in seeking to how best to discharge her elected member role. Whilst there was no evidence before me that the respondent deliberately sought to place the member of staff at a disadvantage, I found the respondent’s actions ill-considered. The member of staff had clearly been distressed by the whole matter.  I also observed that when a councillor received an inquiry or complaint about a Council service, the usual procedure was for the councillor to notify the Head of Service or Director of the Department about the matter and to request a response to enable the councillor to deal fully with the enquiry. No “investigatory” role was usually involved as taking such action could lead to the role and responsibility of the councillor in question being compromised.

11. One of the key aspects of these two complaints was the proposition that the respondent had sought to pass herself off as a Member of Parliament or Member of the Scottish Parliament or a member of hospital management.  It was not surprising that the use of the word “constituent” by the respondent raised questions in the member of staff’s mind. Originally, that term had been used to describe the electorate in the constituency of a Member of Parliament. It was increasingly used by elected councillors to describe the electorate in their council ward area.  It was my conclusion, based on the evidence before me that whilst, as outlined, the respondent’s approach was confusing to the member of staff, it was not the respondent’s intention to pass herself off as an MP or MSP or a member of management and she did not do so. I accepted the respondent’s assessment that because of her public profile such a strategy would not have been sustainable.  It was noted that the respondent’s business card was produced during the encounter.  I did not consider that was the action of someone intending or seeking to hold herself out as anyone else.

12. The other key aspect of these two complaints was the serious allegation that the respondent, during her visit, accessed confidential papers at a nurse’s station. There was no evidence before me, (confirmed by the second complainant), that the respondent accessed patient information.  It was a matter of agreement between the parties that the respondent noted the terms of a memorandum to all Ward Staff which was sellotaped to the Nurses’ Desk. This had dealt with the procedure to be followed by staff in reporting Sickness Absences and confirmed the then level of ward absences as being 8.29%.  (NHS Lothian had a target requirement to achieve absence levels of 4% by March 2009.) The respondent admitted to reading this figure and writing it down.  I noted, in particular, that this memorandum was not marked “Confidential” as might have been expected if NHS Management was expecting it be treated as such by staff.

13. From the evidence before me, it was clear that the level of staff absences was a matter of some general knowledge amongst staff (and patients) and of concern to them.  The memorandum was addressed to all ward staff. It advised them of the current sickness absence statistics and confirmed the management target for this to be reduced. This information was, therefore, not confidential in the normally accepted sense.  Indeed, having heard about this matter before ever visiting the ward, the respondent, in my view, could perhaps have raised such a concern with hospital management without any ward interview of the type which took place. Her visit was, in such circumstances, perhaps superfluous and the only practical outcome seems to have been upset and anxiety caused to a new member of staff who had no knowledge of the respondent and her current public position. 

14. I found that the respondent was relatively inexperienced as a councillor having only been elected in May 2007.  Nonetheless, she held a very responsible and challenging position, (for the reasons outlined in this note), of some seniority in the Council Administration, given that her remit covered the portfolio of Health and Care.  It was clear that the respondent had not been motivated in this matter by anything other than a genuine concern to promote St John’s Hospital Livingston.  I observed that other councillors could also have equally strong views about the issues they were responsible for but, with experience, they developed methods of working and achieving their goals which did not render them liable to complaints to me about alleged breaches of the Code.  I observed the respondent might find it beneficial to seek some guidance from more experienced colleagues in how she might otherwise achieve her aims.

15. I had to consider whether or not that the circumstances I found could amount to a breach of the Code of Conduct. Whilst the behaviour of the respondent in this instance was reasonably criticised for the reasons I have outlined in this section of my Note, it was my clear assessment that her visit to the ward was meant to be in the respondent’s capacity as a councillor. She had not intended to present herself as holding any other office and, in any event, did not do so.   There was no evidence before me that she accessed confidential patient records.  There was no evidence before me that she accessed confidential staff information that was known solely to hospital managers. The information on the level of staff absence, the reduction target to be achieved by staff and the procedure for reporting absences was, by its very nature, disseminated to all staff involved, any of whom could have advised the respondent at any time of the statistic in question.

16. Having considered the information that arose from my investigation, I concluded that Councillor Ellen Glass had not contravened the Councillors’ Code of Conduct.

D Stuart Allan

Chief Investigating Officer

Forsyth House

Innova Campus

Rosyth Europarc

Rosyth

KY11 2UU

14 May 2009