The central role of the parliamentary Ombudsman is to allow parliament to hold the executive (government) to account. It is therefore inappropriate for the executive themselves in the form of Oliver Letwin and the Cabinet Office to be put solely in charge of drafting the new legislation. Yet this is exactly the present situation.
The recent public consultation response from the Cabinet Office (below) displays the heavy hand of government control. The only evidence discussed is that which falls within the parameters of the questions set by the Cabinet Office themselves. None of the evidence submitted is printed in full and although the consultation was aimed at the public, no individual names are given in the Appendix of contributors. The new Public Service Ombudsman will be responsible for delivery of justice and remedy to thousands of citizens in the future. We need a much more open debate if this new body is to be effective in serving the public, holding the executive to account and driving public service reform.
PHSO Pressure Group response to the Robert Gordon CB report
Better to Serve the Public:
Proposals to restructure, reform, renew and reinvigorate
public services ombudsmen.
As a pressure group we directly represent the public. We are all service users who have been let down by the poor investigative process of PHSO. Many of our group have also used the LGO with disappointing results. We are calling for reform of the Ombudsman service as it is not fit for purpose and consistently fails to ‘serve the public’. We therefore welcome this timely report from Robert Gordon CB into the future of the Ombudsman landscape.
Our primary concern, which was not addressed within this report, is the pervasive culture of denial throughout the complaint handling process. It would appear that the default position is to ‘find no wrong’ and ignore any evidence to the contrary. This has been well documented in the Francis Report and others and can be summed up as the ‘toxic cocktail’ of delay, deny, defend. We can assure Robert Gordon and the Cabinet Office that recent group members have received exactly the same treatment at both the first tier level and then from PHSO. Nothing has improved! We therefore commend Mr. Gordon for his call for action and determination to use this opportunity to deliver significant change.
If you start from the premise that good complaint handling saves money, then we can see benefits for all parties. In relation to the NHS, good complaint handling also saves lives. What better reason to get it right.
Changing a long held culture of cover up and denial is not as easy as drafting new policies. It requires great leadership which must also be new leadership. It is not possible to trust the present management systems with delivering reform when they have been responsible for such dire complaint handling to date. The Health Select Committee in January 2015 confirmed that culture has been slow to change since their 2011 report. Cultural change must come from the top and we suggest that the new ‘Chief Ombudsman’ should have legal expertise in line with best practice internationally and should be selected from outside the existing Ombudsman landscape.
There can be no confidence in consistency of judgement while PHSO are able to determine the definition of maladministration on a case by case basis. We have been informed by the legal team at PHSO that it is not possible to define ‘maladministration’. It is illogical to use a term which cannot be defined as the core criteria for uphold. Instead, the determining factor should be ‘harm’, was harm caused by the actions of a public body and this would allow the Ombudsman to consider discretionary decisions. If the Ombudsman is to maintain the policy of looking at ‘what should have happened’ and comparing it to ‘what did happen’ then the Ombudsman must measure appropriate practice by the statutory and non-statutory policy statements. Currently, the Ombudsman has the ‘discretion’ to decide which policy statements to apply. One group member who presented evidence that a GP had breached GMC policy was told by PHSO that, “It is guidance rather than a set of absolute rules to be followed.” No uphold. Equally, it might be logical to consider that a breach of statutory regulations would be automatic maladministration. Wrong again, as demonstrated in a recently failed judicial review against PHSO; “…even if what the relevant public body, did or said turns out in hindsight to have been based on a misunderstanding of the law, it will not necessarily lead to a finding of maladministration by the Ombudsman…” PHSO V David Rapp 2015
Currently, lay people without any clinical or legal expertise make decisions on complex medical cases. They decide which evidence is relevant and which to discard. They decide whether to involve a clinical expert or not and then set the questions for the expert to answer. They are able to overlook breaches in the law as they are not charged with making legal decisions. The outcome of this investigation is final. The PASC report ‘Investigating Clinical Incidents in the NHS’ (March 2015) confirmed that the Ombudsman was never set up to deal with the volume and complexity of these cases.
“There is absolutely no dispute that there is a lack of capacity for immediate, objective, independent and confidential investigative capacity into clinical incidents. The capacity simply does not exist and there is confusion about who is responsible for what.”
“The PHSO was never set up with clinical incident investigations in mind. It is not a system we are going to recommend that patient safety relies on.”
Part of this ‘lack of capacity’ concerns expertise and the PASC report makes it clear that there should be new professional qualifications for those carrying out clinical investigations at all levels.
“We also recommend the development of a body of professionally qualified administrative and investigative staff, who, over time will be able to provide a substantial infrastructure in support of all investigation of clinical incidents. There should be formal examinations and qualifications similar to those formerly made by the Institute of Health Service Administration and the Association of Medical Records Officers.” (146)
We wholeheartedly concur with this view. Under any proposal to improve the Ombudsman landscape there is an urgent need for the creation of a separate and expert Health Service Ombudsman for England in line with devolution. This would be staffed by clinically trained investigators and guided by legal professionals. In line with the new investigative clinical body proposed by PASC (now PACAC), it should also be accountable to the Minister of state for Health. The setting up of a designated body to deal with health complaints is one of our primary objectives and is in line with recommendations made by Dr. Katherine Rake from Healthwatch;
“The cases that we hear are often a complex mix across health and social care, so there is a very strong case for having a single Ombudsman for health and social care.”
This was also supported by the Health Select Committee in their recent report ‘Complaints and Raising Concerns’, (January 2015).
“On the evidence we have heard there is a strong case for working towards the integration of social care complaints into a single complaints system. As a first step we consider there should be a single health and social care ombudsman.”
The present Ombudsman system is effectively unaccountable to either the public or parliament. It is in theory accountable for its decisions via judicial review, but the wide discretion afforded by the original 1967 act makes it impossible to hold the Ombudsman to account under the law. It is accountable to parliament through PACAC (previously PASC) for delivery of its service, but members of this committee have no powers to investigate individual cases. They cannot therefore determine for themselves the facts behind national scandals such as the handling of James Titcombe’s complaint or that of the Morrish family. There is no accountability or transparency in the way PHSO presently operate and they are able to internally handle all complaints about themselves. The Health Select Committee share our concerns regarding accountability of PHSO and in January 2015 stated;
“The serious criticisms of the ombudsman from the Patients Association are of grave concern. We recommend that an external audit mechanism be established to benchmark and assure the quality of ombudsman investigations. It is perturbing that the Gordon report proposes no alteration to the total discretion enjoyed by the present Ombudsman service.
“…that the ombudsman alone must have the power to decide whether or not a complaint is within jurisdiction and then have the power to determine it; that the ombudsman’s determination should be final and should not be able to be overturned other than by the courts and that the ombudsman should be accountable to a body independent of those subject to investigation. I consider that these criteria should apply to any public services ombudsman arrangements for the future and that the core functions of the ombudsman should not alter.” p15
Total discretion of this nature makes it impossible to overturn a decision via judicial review or have a complaint about a decision upheld and curtails the powers of any external audit or parliamentary scrutiny mechanism. It allows the Ombudsman to act with impunity and any suggestion otherwise is just unconvincing window dressing.
Presently only parliamentary complaints are required to be submitted to PHSO via the MP filter. Most within the group have found their MP to be largely disinterested in this process and no doubt the MPs will be glad to have this responsibility removed. However, where an MP has been supportive the complainant has found it to be extremely beneficial in driving the complaint forward. Unfortunately, even the most dedicated MP is restricted by the level of independence enjoyed by the Ombudsman to actually hold them to account for poor complaint handling and gross injustice. By removing the requirement of the MP filter, it should be made clear that an MP still has a responsibility and MPs should have greater powers to intervene on behalf of their constituent.
Good complaint handling should drive reform within public sector and thereby reduce future complaints. It is clear from the rising number of complaints that this is not happening. Dame Julie Mellor, the current Ombudsman has consistently stated that making improvements to NHS complaint handling is not within the remit of PHSO.
“… when interviewed on the radio 4 Today programme on 7.2.15, Ms. Mellor was asked what should be done about poor NHS complaint handling and replied, “Ultimately up to the health sector to explore and understand why these investigations are not happening and work together to make sure they can get more consistent investigations in the future.”
Not involving the Ombudsman to improve first tier complaint handling is a false economy as an increasing number of complaints then go on to the Ombudsman for second-tier review. In Scotland the Ombudsman has the power to enforce good complaint handling standards on public bodies. The proposal here is that the Ombudsman acts as a ‘champion of complaint handling standards’ but has the power only to advise. This will not deliver the cultural change required.
Improvements can be as simple as an acknowledgement and apology as outlined in the Health Select Committee report (2015);
“The organisations that we spoke to were very clear about what constitutes good practice. We agree with Rob Webster of the NHS Confederation, who told us: There is a simple golden thread through complaints, which I think most people know and is good practice, which is that you always, say sorry, explain what you think has happened and describe why it is not going to happen to anybody else.”
So easy, yet many of us have endured long battles with bureaucratic systems simply to determine the truth; that something went wrong. Fear of litigation should not be a barrier to good complaint handling as the NHS Litigation Authority confirm that;
“The NHS LA has long advocated that it is appropriate to apologise when things go wrong, providing a full explanation in response. This is vital for the patient, their family and carers and will help to support learning and improve safety.”
Mr. Gordon quite rightly points to limited resources being one of the key triggers for reform. Presently, the complaint handling structure militates against swift resolution. The public body is able to spin out the internal handling of the complaint without sanction. In Scotland it is possible to approach the Ombudsman after 20 days which prevents delay. Early mediation, within the first three months, could resolve many complaints without the need for full investigation. All complainants require access to independent advocacy services at the outset to inform them of their rights and provide support through the process. Fair, unbiased, evidence-based complaint handling would drastically limit the cost of review, public demands for DPA and FOI requests, legal challenges and judicial review. Poor complaint handling costs money!
PHSO Pressure Group recommendations:
We welcome the proposal for a new Public Service Ombudsman (PSO) which will act as a ‘no wrong door’ portal for timely redress and drive up standards in public sector services. However, there has been too little consultation with service users and with academics. We would like this review to give full consideration to our reform objectives, gleaned from the ‘gold dust’ of our first-hand experience.
PHSO Pressure Group reform objectives:
- Within the Single Public Service Ombudsman sphere there should be a designated Health Service Ombudsman for England in line with devolution. This body should be staffed by healthcare professionals and guided by legal expertise with the remit to deal with complaints from primary, secondary and social care sectors. There should be guidance on best practice provided by the new Healthcare Safety Investigation Board (HSIB)
- To restore public confidence there must be improved accountability with an independent external review process for complaints made about the Ombudsman and independent external audit of decisions and reports in line with recommendations made by the Health Select Committee. Parliament, through a designated select committee, should be given the powers to investigate individual cases where necessary.
- As the Ombudsman is the final arbitrator then this body must have both the power and the expertise to identify legal breaches. Any legal breach or breach of policy should automatically be determined as cause to uphold the complaint.
- It should be an option to approach the Ombudsman after 30 days if no satisfaction is provided by the public body. Early mediation should be offered for those who wish to take a more informal route to resolution and advocacy provided to support complainants through this process.
PHSO Pressure Group
(updated December 2016)