Advertising Standards Authority (ASA)

Complaint date: 14 August 2011

The phrase in the advert "you could make the difference that gives someone on incapacity benefit a brighter future" is not honest in that in respect of the recruitment of a GMC registered doctor there is an implicit understanding that the skills of the doctor will be deployed in helping to deliver "a brighter future".

I have uploaded a General Medical Council document www.gmc-uk.org/static/documents/content/Mallios.pdf in which is stated "The GMC initially relied upon both paragraphs 2(a) and 65 of Good Medical Practice. Late in the hearing, the GMC invited the Committee to focus on paragraph 65 since there was doubt as to whether you were providing "clinical care" in the circumstances of this case. The report was provided for the purposes of the DWP and was not produced in the course of providing conventional "clinical care" for Mrs A. The Committee does not consider that paragraph 2(a) of Good Medical Practice is applicable in this case. It is of the view that, on the facts of this case, you were not providing clinical care to Mrs A."

A doctor who attending a recruitment meeting wrote "The message from the recruitment evening was quite clear. We were told: "You are not in a typical caring role. This isn't about diagnosing." And: "We don't call them patients ... We call them claimants."

I suggest the GMC and the Atos recruitment evening provide strong evidence that Atos is not recruiting for the purpose suggested by the phrase "a brighter future" and thus the advert is not honest.

"...Edward Cooper is mistaken that the principle of making the care of your patients does not apply to doctors when they are assessing benefits claimants on behalf of ATOS...

"The first duty of all doctors is 'to make the care of your patient your first concern'. But that is not the only duty doctors must observe. Being open and honest and acting with integrity is also an essential part of medical professionalism...

Dishonesty in writing reports cannot be justified by reference to the first duty of doctors. Further advice on disclosing information for employment, insurance and similar purposes can be found here: www.gmc-uk.org/Confidentiality_disclosing_info_insurance_2009.pdf_27493823.pdf"

    From:     ComplaintsReception@ASA.Org.uk
    Date:     Mon 15/08/11 09:58 
  
    Subject:  Advertising Standards Authority - Complaint Acknowledgement
    

Thank you for submitting your complaint to the Advertising Standards Authority. We will assess your complaint and reply in full as soon as possible.

For information on our procedures and the action we can take on complaints please see our leaflet Your complaint. What happens now? (http://www.asa.org.uk/Complaints/~/media/Files/ASA/Misc/ ASA_Your_Complaint_What_happens_now_mar2011.ashx).

    Should you need to contact us regarding your complaint please quote A11-168732

    The Advertising Standards Authority Ltd, Registered Number 0733214.
    The Advertising Standards Authority (Broadcast) Ltd, Registered Number 5130991.
    The Committee of Advertising Practice, an unincorporated association
    The Broadcast Committee of Advertising Practice Ltd, Registered Number 5126412

    Registered Office: Mid City Place, 71 High Holborn, London, WC1V 6QT
    

Advertising Standards Authority Please Quote: ...

Dear Mr B... 1 September 2011

YOUR COMPLAINT: ATOS ORIGIN IT SERVICES UK LTD

Thank you for your recent complaint regarding the above advertisement. I'm sorry to hear it has caused you concern.

We assess the content of ads and can act if they are, among other things, likely to cause significant harm, to mislead or to provoke serious or widespread offence. Looking at the point you raise, however, I'm afraid we will not be taking further action under our Code. Let me explain in more detail why.

We consider readers would understand that the claim referred to the impact of the assessments made, rather than suggesting that the doctor would personally be assisting the claimant in achieving a "brighter future". The ad states that the role involves carrying out medical assessments and we consider it unlikely that readers would assume that the position was a clinical care role. Overall, we consider it unlikely that the ad would mislead readers to their detriment for the reason you suggest.

I am sorry if you are disappointed but thank you nonetheless for taking the time to contact us. Further information about the ASA and the work we do is available on our website, www.asa.org.uk.

Yours sincerely

...
Complaints Executive
Tel: ...
Email: ...@asa.org.uk
    

Complaint date: 30 November 2011

I would like to complain about the false claims made in the Atos Healthcare website regarding the number of referrals, the number of face-to-face assessments and the grossly false claim about the number of healthcare professionals available.

The website includes the following three paragraphs (images uploaded):

"Atos Healthcare provides independent medical advice to the Department for Work and Pensions (DWP). We conduct disability assessments for people claiming a range of disability benefits including Employment Support Allowance, Incapacity Benefit, Disability Living Allowance and Industrial Injuries Disablement Benefit."

"Each year Atos Healthcare process over 1.2 million referrals for medical advice completing over 800,000 face-to-face medical assessments within our nationwide network of over 140 medical examination centres."

"All our 1700+ healthcare professionals are fully trained to undertake disability assessments. Doctors are registered with the General Medical Council, nurses with the Nursing and Midwifery Council and physiotherapists with the Health Professions Council. All healthcare professionals are approved by the Chief Medical Adviser of the DWP."

If you refer to the DWP statistics (esa_wca_25102011_tables.xls), Table 1 states 1,502,200 referrals / assessments were carried out between October 2008 and February 2011.

In response to a DWP Freedom of Information request made 3 June 2008, the DWP wrote "In March 2008, Atos Healthcare employed 347.8 full time equivalent Healthcare Professionals (this includes doctors and nurses) and 841 sessional Healthcare Professionals (doctors only)."

In response to a DWP Freedom of Information request made 12 August 2011, the DWP wrote "... as of 31 August 2011 Atos Healthcare has 847.24 (full time equivalent) Healthcare Professionals (HCP) undertaking medical assessments."

In summary the facts, as reported to the DWP by Atos Healthcare, are that the number of HCPs was 348 in March 2008 and 848 in August 2011. These numbers are far less than the claimed 1700+ and so are false, a gross distortion and without substance.

I believe Atos Healthcare use these false figures in other advertising material including advertisements, flyers, recruitment material, training material etc.

By misleading potential customers into their capabilities and the assets that they can deploy Atos Healthcare may gain additional customers to the detriment of other honest companies who are truthful of the resources that they can deploy. Atos Healthcare pulled out of a ten year contract for NHS services in Tower Hamlets London after three years for it is believed quality issues.

    From:     ComplaintsReception@ASA.Org.uk
    Date:     Mon 1/12/11 12:49 
  
    Subject:  Advertising Standards Authority - Complaint Acknowledgement
    

Thank you for submitting your complaint to the Advertising Standards Authority. We will assess your complaint and reply in full as soon as possible.

For information on our procedures and the action we can take on complaints please see our leaflet Your complaint. What happens now? (http://www.asa.org.uk/Complaints/~/media/Files/ASA/Misc/ ASA_Your_Complaint_What_happens_now_mar2011.ashx).

    Should you need to contact us regarding your complaint please quote A11-180372

    The Advertising Standards Authority Ltd, Registered Number 0733214.
    The Advertising Standards Authority (Broadcast) Ltd, Registered Number 5130991.
    The Committee of Advertising Practice, an unincorporated association
    The Broadcast Committee of Advertising Practice Ltd, Registered Number 5126412

    Registered Office: Mid City Place, 71 High Holborn, London, WC1V 6QT
    

    From:     ...@ASA.Org.uk
    Date:     21 December 2011 12:36
  
    Subject: Case Ref: A11-180372
     

Dear Mr B...

Further to my below email, we need to clarify a few issues in regards to your complaint.

Referring to your complaint form, you stated that under your FoI requests to DWP you found that the number of full time equivalent (FTE) Healthcare Professionals (HCPs) employed by Atos was 347.8 in March 2008 and 848 in August 2011. However, for the March 2008 figures there was an additional 841 sessional HCPs. In your complaint form, you do not seem to have included the sessional HCPs for 2011 as the total would appear to require both FTE HCPs and sessional HCPs. Could you please clarify whether you agree with us on this point? Furthermore, could you please refer us to your original source of information.

We would be grateful if you could respond by 22/12/2011. If we do not hear from you by this date, then we shall assume that you no longer intend to pursue with your complaint and shall close the matter

Thank you for your co-operation on the matter.

Kind Regards

    From:     ...@ASA.Org.uk
    Date:     21 December 2011 13:20
  
    Subject: Case Ref: A11-180372
     

Dear ...

Thank you for considering my complaint.

The DWP and Atos when reporting to Parliament only ever report Full Time Equivalents (FTE). Companies in financial reporting and in general when reporting human resources available to be deployed always report FTE. I have expert and in depth knowledge of recruitment, personnel and payroll applications and so can confirm that if numbers of employees are stated then FTE can be assumed unless explicitly stated that the numbers are for full time and part time employees. If Atos now claim that the figure of 1700+ is a combination of full time and part time employees, without explicitly stated this clarification, Atos is misrepresenting the human resources that they can deploy. Further assume that each of the 1700 only work one hour per week or alternatively assume each works thirty hours per week, the 1700+ claim is meant to be read as Atos being able to deploy 1700+ full time employees. This is false. Atos should amend the claim to be FTE at a particular date or even better full time FTE and part time FTE at a particular date.

To the best of my knowledge Atos has never provided the 1700+ figure to their customer the DWP and this figure has never been passed to the Select Committee for Work and Pensions or provided to Parliament. The 1700+ figure cannot be substantiated and differs so widely from the figures supplied to Parliament. Please note as part of Contract between the DWP and Atos, the way Atos reports on employee numbers are defined.

In my view the 1700+ claim is false, cannot be substantiated and thus the ASA should request that the website be changed to report the truth.

I look forward to hearing from you.

Highest regards

    From:     ...@ASA.Org.uk
    Date:     22 December 2011 10:36
  
    Subject: Case Ref: A11-180372
     

Dear Mr B...

Thank you for your below response, which we will now review along with your complaint.

We will be in touch shortly.

Kind Regards

    From:     ...@ASA.Org.uk
    Date:     28 December 2011 11:02
  
    Subject: Case Ref: A11-180372
     

Dear Mr B...

We propose to pass your complaint to our Investigations section regarding the claims in the marketing about 1.2 million annual referrals, 800,000 face-to-face assessments and 1700+ healthcare professionals. However, can you confirm that, since you campaign about this subject via your website whywaitforever.com, we have your permission to name whywaitforever.com as the complainant in any published adjudication? Public complainants are not usually named but we do require complainants who have a competitive or campaigning interest to be named. I also need you to confirm that there are no legal actions relating to the subject of your complaint. If you can get back to me by Friday 30 December, or earlier if possible, that would be very helpful.

Regards,

... Complaints Manager

    From:     ...@ASA.Org.uk
    Date:     28 December 2011 15:00
  
    Subject: Case Ref: A11-180372
     

Dear ...

Thank you for your action on this matter.

I am happy to give you permission to name "whywaitforever.com" as the complainant.

I have not regarded WhyWaitForever as having a campaigning interest but purely as a website which publishes facts supported by evidence, my case, Hansard etc, that others, Ministers, Select Committee Members, MPs etc, may use to ensure Statutes, Rules, Regulations and Contracts are complied with. I regard the website as collating relevant information. It is true many campaigning interests do cite and/or copy parts of my website to further their aims. I believe "whywaitforever.com" does not put forward a view on how the Law should be changed though suggestions are made as to how the current implementation of the Law could be improved. In my view there should be no need to lobby or campaign to ensure that the existing Law should be complied with. To paraphrase the Government, openness, transparency and debate are the route to progress.

I confirm that there are no legal actions relating to the subject of my complaint.

I hope the above allows you to proceed. Please let me know if you need further information. Thank you.

Yours sincerely

    From:     ...@ASA.Org.uk
    Date:     28 December 2011 15:14
  
    Subject: RE: Your Complaint ASA Ref: A11-180372 Atos IT Services UK Ltd t/a Atos Healthcare
     

Many thanks Mr B.... As you can appreciate, these are formalities and if we acknowledge at the outset that you have a particular interest in/ knowledge of this matter it helps to avoid any complications down the line. I will pass your case to Investigations and an Investigations Executive will contact you in due course.

Thanks again for getting back to me so quickly.

Regards,

Ref: A11-180372/NM/lb        14 February 2012
                             By post
Dear Mr B...

YOUR COMPLAINT

Thank you for confirming that you do not contemplate legal action in this matter and that you are happy to be named in any published report. We have considered your complaint and we will take it up with the advertisers.

We intend to deal with your complaint under our formal investigations procedure, which means that we will ask Atos IT Services UK Ltd to comment on the complaint and send evidence to support the claims. We will then draft a recommendation and refer your complaint to the ASA Council for adjudication. You will have an opportunity to comment on the recommendation before it is considered by the Council. Once the Council has made a decision, the adjudication will be published on our website.

If Atos IT Services UK Ltd respond to your complaint by offering to change the advertising in a way that resolves your concerns, we may close the case without referring it to Council or publishing an adjudication. This has the advantage of resolving your complaint more quickly. However we resolve your complaint, we will let you know the outcome.

You should have already received a copy of our leaflet "Your complaint. What happens now?" which explains our complaints procedure and what action we may take. If you would like another copy please let us know, or download the leaflet from our website www.asa.org.uk/Complaints.aspx.

Yours sincerely

...
Investigations Executive
...@asa.org.uk
020 .... ....

50 years
Legal, decent, honest and truthful
     

Ref:A11-180372/NM/ld         1 March 2012
                             By post

Dear Mr B...

Your complaint

The attached report is now ready to be sent to the ASA Council. We have based it on the information we have at the moment. If you want to send us more, please do so now.

As you can see from the attached we are recommending your complaint is upheld.

The report is a draft recommendation and the decision and wording will rest entirely with the Council, who may see things differently.

Please ensure you have made all the points that you want to make. We shall consider written comments on the factual accuracy of the draft if we receive them by 8 March Atos Healthcare will also receive a copy of the draft recommendation today.

If we change the draft recommendation materially as a result of comments we receive, we shall tell you. If no material changes are needed, the draft recommendation will be forwarded to the Council for consideration.

We shall write to you again to tell you the Council's decision and the publication date for the final report. Please treat the draft recommendation as confidential until the final report is published.

Yours sincerely

..., Investigations Executive, ...@asa.org.uk

Ref:A11-180372/NM/ld         22 March 2012
                             By post

Dear Mr B...

Your complaint

The ASA Council has now adjudicated on your complaint and agreed with our recommendation that the ad breached the Code.

The attached report will be published on the ASA website, www.asa.org.uk, on Wednesday 4 April and we ask you to treat it as confidential until then. It will be made available to journalists, under embargo, from the Monday before publication. Atos IT Services UK will also receive a copy of the adjudication today.

Thank you for bringing the matter to our attention.

Yours sincerely

..., Investigations Executive, ...@asa.org.uk

ASA Adjudication on Atos IT Services UK Ltd

 
Atos IT Services UK Ltd t/a Atos Healthcare   Date:                 4 April 2012 
                                              Media:                Internet (on own site) 
                                              Sector:               Business 
                                              Number of complaints: 1 
                                              Complaint Ref:        A11-180372 

Background

Summary of Council Decision:

Two issues were investigated and both were Upheld.

Ad

Claims on www.atoshealthcare.com, visited on 30 November 2011, described Atos Healthcare's services. Text stated "... Each year Atos Healthcare process over 1.2 million referrals for medical advice completing over 800,000 face-to-face medical assessments within our nationwide network of over 140 medical examination centres ... All our 1700+ healthcare professionals are fully trained to undertake disability assessments. Doctors are registered with the General Medical Council, nurses with the Nursing and Midwifery Council and physiotherapists with the Health Professions Council. All healthcare professionals are approved by the Chief Medical Adviser of the DWP ...".

Issue

www.whywaitforever.com challenged whether the claims:

1. "Each year Atos Healthcare process over 1.2 million referrals for medical advice completing over 800,000 face-to-face medical assessments"; and

2. "our 1700+ healthcare professionals"

were misleading and could be substantiated.

CAP Code (Edition 12)

• rule 1.7 - Any unreasonable delay in responding to the ASA's enquiries will normally be considered a breach of the Code

• rule 3.1 - Marketing communications must not materially mislead or be likely to do so

• rule 3.11 - Marketing communications must not mislead consumers by exaggerating the capability or performance of a product

• rule 3.7 - Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.

Response

Atos IT Services UK Ltd t/a Atos Healthcare (Atos) did not respond to the ASA's enquiries.

Assessment

Upheld

The ASA was concerned by Atos' lack of response and apparent disregard for the Code, which was a breach of CAP Code (Edition 12) rule 1.7 (Unreasonable delay). We reminded them of their responsibility to respond promptly to our enquiries and told them to do so in future.

We noted that Atos had not provided evidence to show that each year it processed over 1.2 million referrals for medical advice and completed over 800,000 face-to-face medical assessments, or that it had over 1700 healthcare professionals. We therefore considered that the claims had not been substantiated and concluded the ad was misleading.

The ad breached CAP Code (Edition 12) rules 1.7 (Unreasonable delay), 3.1 (Misleading advertising) and 3.7 (Substantiation).

Action

The ad must not appear again in its current form. We referred the matter to the CAP Compliance team (www.cap.org.uk).