Firstly we were both impressed with AvMA as an organisation and their determination to help NHS complainants through the difficult maze of both the complaint system and the legal process. Neither of us had any experience of AvMA before and we came away with the impression that they were a charity who were actually making a difference in a number of important ways. You can see their website here: www.avma.org.uk Don’t be confused by the word ‘accident’ in the title, they also deal with clinical negligence.
Peter Walsh, the Chief Executive talked on their behalf. He confirmed that it was illegal for a trust to deny an investigation if a complainant was also taking, or thinking about taking legal action. AvMA have campaigned hard on this issue and threatened the Dept. of Health with judicial review if they did not make a clear statement. This statement was released by D.O.H. recently.
“Where the complainant is taking, or plans to take legal proceedings, a complaint may only be put on hold where there are exceptional reasons to justify it or the complainant has requested that investigation be delayed.”
AvMA have also fought to establish a ‘duty of candour’ and it looks as though all these years after Will Powell’s first call for honesty as a legal right, it is about to happen. It will be statutory for all parties who register with CQC, including private providers. There will be no individual criminal responsibility and any individuals concerned will be dealt with through the internal disciplinary procedure rather than the courts.
Later in the afternoon Lisa O’Dwyer, Director of Medico-Legal Service spoke on behalf of AvMA about Complaints, Claims and Inquests. We both got the impression that AvMA have a strong legal team to support complainants and this would be a good starting place for anyone thinking of taking legal action. Lisa said to us after the meeting that AvMA would be happy to hear from individuals who have been through the complaint system without success who wish to know their options for legal action. There are time limits and also discretions, so you need advice before you start spending money. Lisa spoke about the ‘inquisitorial’ nature of inquests and stated that Coroner would normally disclose all relevant documentation to all interested parties at any stage in the process. PHSO also use the inquisitorial method to carry out their investigations yet deny access to documents provided by the public body until after the decision is made. It is clear from the statements made by Lisa that protecting data in this way is not a legal requirement of an inquisitorial approach.
I asked Lisa at what point it was possible to go to the European Courts and use the human rights agenda. She stated that it was only possible once every legal route available in this country had been exhausted, so presumably that would include judicial review. It would be far too costly for most people to try every legal option here and fail, thereby incurring costs and still have both the funds and the energy to go to the European Courts. Looks good on paper but …
The meeting was actually opened by Chris Bostock, a civil servant who is Head of Complaints for the D.O.H. Out came the sound bites; ‘We need to pick up complaints and learn from them.’ Then came the mechanics. There has been a ‘Complaints Programme Board’ set up as a talking shop and someone called Robert Gordon is due to write a report. I would like to contact him, but have no idea who he is at the moment. Please inform if you know more. Chris talked again about the single Ombudsman, so this looks like a done deal. It would be a Public Service Ombudsman for England but led by whom? The worry was that the creation of a ‘Patient-led vision and expectation for NHS complaints handling’ was to be led by PHSO and Healthwatch England. Chris stated that many complainants did not realise that PHSO was an independent body directly accountable to Parliament. So I asked at the end, to whom in Parliament was PHSO directly accountable and it turned out to be PASC. When I pointed out that PASC did not have the powers to hold the Ombudsman to account and could not discuss individual cases with Dame Julie Mellor, he looked confused. It would seem that many people in Parliament do not realise that PHSO is an independent body not accountable to anyone.
Matthew Trainer talked for CQC. He spoke very convincingly about the need for CQC to be on the side of the complainant or the public will lose trust in their service. I agree and this is a sentiment that should be taken up by PHSO who have totally lost public confidence. There are new inspection processes which involve listening events during the time of the investigation where members of the public can raise concerns. CQC cannot investigate individual complaints, but evidence from a case could be used to trigger an investigation and look for systemic difficulties. Matthew said that it would be worth taking an historic complaint to CQC where the regulatory system had failed to deliver justice. It could provide evidence of a long term issue if the facts matched up with more recent complaints.
James Titcombe then spoke for CQC. He said that CQC were working with the Patients Association to agree enforceable standards. The 12 standards can be seen here: patients-association.pdf and they have been endorsed by the Francis Report. (Number 8 is interesting from a PHSO point of view.) James stated that these standards are now being used and none of the trusts reviewed so far have met them all. A promising start. For his final word James powerfully stated that it shouldn’t be the responsibility of the complainant, a lay-person, to gather the evidence and report events in order to trigger an investigation. That ultimately he wanted an investigation to be automatic when something went wrong, with or without a complaint. This would take the pressure off the individual to do all the work and would deal with issues in a more timely manner, but self-regulation of this kind has so far been wholly unsuccessful. It would require strong and fair management practice.
If you want to know more about CQC then check out their website here: www.cqc.org.uk or you can contact James Titcombe directly at firstname.lastname@example.org
Arianna Kelly spoke for Healthwatch England which was launched in April 2013. The previous day, Healthwatch England had released a press statement condemning the complex nature of the complaint process with over 70 different organisations involved. You can see a summary here: www.bbc.co.uk/news/health In the year of their existence they seem to have a very accurate handle on the complaint system and Arianna spoke honestly of the difficulties of making a successful complaint. She spoke of poor advocacy, reluctance to complain, lack of data on complaints, system not joined up and the need for core principles. She also stated that presently the trusts investigate themselves and effectively mark their own homework. Healthwatch England are pushing for an independent element to this investigation process on the lines recommended by Francis. This also has overtones for PHSO and their entirely ‘in-house’ monitoring system.
Lee Bennett then spoke about PALS in relation to Addenbrookes Hospital. He spoke in such glowing terms that if I hadn’t read Julie Bailey’s book, ‘From Ward to Westminster’ I would wonder what anyone had to complain about. He stunned us with the smooth operation of the PALS complaint facility to such an extent that no-one asked a single question afterwards. Lee Bennett has recently taken up a position with NHS England. I just hope that Addenbrookes don’t fall apart without him!
Helen Hughes spoke for PHSO. There was no explanation from anyone as to why the sudden change in timetable as Dame Julie Mellor was originally down to speak. Interestingly, when DJM was in the hot seat we were informed that we would not be able to ask a direct question, but could refer a question through the chair. Once Helen Hughes stepped in, no such restriction. She started by saying that PHSO ‘wanted to learn from casework’ – including previous casework? The big push was on the number crunching with a proposed 2,000 cases investigated in 2013- 14 as opposed to 384 in the previous year. Of those only around 50% were being upheld according to H.H.
The Ombudsman want to share more of their work with the public and will be publishing case studies regularly which will mainly consist of ‘upheld’ cases. Now take a deep breath – I’m just reporting what was said. PHSO want to root out the ‘underlying causes’ of any issue investigated, not just look at what happened to the individual. They insist on a ‘meaningful apology’ and are able to cluster cases to review systemic failures such as the much mentioned ‘Sepsis Report’. There is a Parliamentary report on complaint handling being compiled by Bob Kerslake www.civilservice.gov.uk and PHSO are contributing to this report. I think the Pressure Group’s thoughts should definitely be included and will be contacting Mr. Kerslake very soon. Helen Hughes talked about ‘human factors’ but as PHSO did not provide a copy of their powerpoint in the conference folder I can not remember a great deal of detail on this. The only other fact that I can recall is that Helen Hughes has been seconded to NHS England in order to develop named ‘human factors’ leaving a bit of a gap for DJM.
Overall, I found it to be a very positive day. We complainants are battle scarred. We have heard so many promises and been let down by so many lies that it is difficult to trust. We put the cync in cynical.
But, people are talking, people are listening. The debate is on the table and many are telling honest truths about the corrupt nature of the complaint system. From where I am standing it looks like this fish is going to be cured from the tail up, because the first tier system is the one under the spotlight and the second tier, the Ombudsman, is still tucked away behind the safety of their legislative restrictions. Hopefully, we can ensure that PHSO are brought into the debate and that they receive a complete overhaul, including changes to the law.
Your comments are welcome.