The state V the citizen. The ultimate catch 22

state machineryA primary responsibility of the state is to protect its citizens from harm.  So what happens when the state is the body causing harm and those in authority collude together to cover up? In the UK we like to believe in ‘British fair play’; a somewhat bureaucratic but essentially benign system of checks and balances to put things right. After all, we have shared our model of democracy and our legal system across the world so who could doubt the efficacy of British rule?

Yet anyone who has made a complaint about a public service will have learnt that the machinery of the state is used against the citizen, not for the citizen.  Those who have not made a complaint will not want to know this bitter truth and will not believe a word of it. And there is the dilemma. What right-minded person would go about telling all and sundry that various government authorities have conspired against him? Clearly, only a delusional trouble-maker would dream up such a tall story.

Meet Mr Hawkins. A brave campaigner for truth and justice who told such a story to his MP Andrew Gwynne, shadow minister for communities and local government.  In an unusual twist of events not only did Mr Gwynne believe his constituent, he felt so strongly that Mr Hawkins had been let down by multiple agencies for over a decade that he brought it to the attention of parliament at a recent ‘backbench’ meeting in Westminster Hall.  You can read the full details here

Sadly, I have to publicly outline how my constituent, Mr Hawkins, has been let down by public authorities. The law and NHS rules have been abused to avoid giving him the justice that is rightfully his. His attempts to seek that justice, along with some semblance of honesty and humility, have already passed the decade mark, so I shall be grateful for the Minister’s reply after I set out the case.

Did you get that – “…the law and NHS rules have been abused [by the state] to avoid giving him the justice that is rightfully his.” 

Mr Hawkins was given surgery on his ruptured Achilles by a junior doctor instead of the allotted clinical surgeon in order to ‘meet government targets’ and following a serious clinical error which left him in great pain he was discharged too soon also to ‘meet government targets’. 

Mr Hawkins immediately made a complaint through the hospital trust’s internal complaints procedures. He believes that on receipt of his letter of complaint, the trust should have called him in for an examination and a scan. It should have admitted that a serious problem had occurred and carried out a further operation to release the Achilles tendon from the rear of his leg. In Mr Hawkins’s mind, the matter would then have been resolved. However, the trust decided to take a different route: it instantly instructed Hempsons solicitors.

So easy to put things right at this early stage yet the state used public funds to protect itself against a genuine complaint. Clearly, Mr Hawkins wasn’t expecting this.

Although, obviously, Mr Hawkins is concerned about the clinical errors that have caused him lasting damage, he is rather more appalled by the actions of a variety of organisations afterwards. He believes that those actions were deliberately designed to cover up the fact that a clinical mistake had been made, caused primarily by the replacement of a consultant surgeon with a junior doctor.

“He believes that those actions [by the state] were deliberately designed to cover up the fact that a clinical mistake had been made…”    Why would the state deliberately design such harmful action? 

Now that the complaint is in the hands of a legal team Mr Hawkins has little option but to appoint his own solicitor who then uses him as a cash cow and appears to work in cahoots with the NHS legal team.

In 2008, Mr Hawkins instructed a solicitor, who requested disclosure of all full medical records. The trust passed his request on to Hempsons. However, in the immediate period after his request he received only a very selective number of his own medical files from Hempsons. Mr Hawkins’s solicitor failed to ensure that all full medical evidence was disclosed within statutory time limits and failed to apply for a court controlled disclosure, while knowing that the records he had listed were missing. Mr Hawkins’s solicitor instructed a clinical litigation medical expert, who produced a case-closing report that failed the objectivity test and was therefore invalid. The trust and Hempsons initially failed to disclose relevant medical records, doing so only after continued and considerable pressure from Mr Hawkins.

“Mr Hawkins’s solicitor instructed a clinical litigation medical expert, who produced a case-closing report that failed the objectivity test and was therefore invalid.” 

 State corruption provided lucrative work for ‘the legal boys’ who could act with impunity knowing that there is no effective mechanism for a member of the public to hold a solicitor to account.

In 2013, the trust eventually conceded and his remaining medical records were fully disclosed. On analysis of the records, it was plain to see that there were omissions and that pre-action protocol time limits had been exceeded. In response, Hempsons sought the opinion of a medical litigation expert. A report was produced, but it was based on the selected medical records that I mentioned earlier, as well as on the falsified information. Mr Hawkins believes that that report would fail any objectivity test and is therefore invalid.

Let’s just get this straight. The NHS Trust deliberately and willfully withheld medical records demanded under the legal pre-action protocol time limit and falsified other information. A criminal offence, yet no-one is held to account. Instead, the solicitors working [from the public purse] to protect the trust were able to produce a ‘whitewashed’ report in order to deny justice.

Withholding records is a breach of the Data Protection Act 1998 but the state body responsible for protecting the citizen from such breaches, the Information Commissioner’s Office is slow and cumbersome with no real powers of coercion.

Mr Hawkins also believes that the Limitation Act 1980 was breached from 2008 and that rules 31 and 35 of the Civil Procedure Rules 1998 were breached in compiling medical reports, because the medical experts failed in their duty to the court to be objective.

More breaches of the law and regulation by the trust and their legal team which required action from the state to protect the citizen but the body charged with finding against such ‘maladministration’ the Parliamentary and Health Service Ombudsman refused to investigate leaving him high and dry.

 The delays in disclosure of information meant that Mr Hawkins’s complaint to the Parliamentary and Health Service Ombudsman was ruled out of time. My constituent believes that that makes a mockery of the trust’s failure to disclose his medical records within statutory time limits, which he believes the ombudsman ignored while upholding the strict time criteria regarding his making a complaint to the ombudsman. Mr Hawkins appealed the decision on several occasions when the evidence was retrieved through the Information Commissioner. However, he was unsuccessful in overturning their original view that a letter from the trust indicated that the complaint was closed in 2007, which he utterly refutes. Hempsons later apologised and admitted that that letter did not clearly state that the local complaints procedure was closed. However, the ombudsman still refused to investigate the complaint and, in doing so, Mr Hawkins feels that the ombudsman has assisted the trust to conceal the cause and effects of a clinical error.

The Ombudsman has total discretion to investigate a case which is outside the normal 12-month time limit yet it refused to do so and even refused to accept the evidence that their initial decision to time-out the complaint was flawed.

“However, the ombudsman still refused to investigate the complaint and, in doing so, Mr Hawkins feels that the ombudsman has assisted the trust to conceal the cause and effects of a clinical error.”

Unrealistic and inflexible NHS targets caused harm to the citizen. Then publicly funded legal teams dragged their heels, refusing to release records and fabricating evidence in breach of legal protocol. The Ombudsman then ‘assisted the trust’ by refusing to investigate clear breaches of policy and procedure.

Mr Hawkins then appealed to the NHS Litigation Authority only to find that they too were in cahoots with the trust and the legal team.

In 2013, Mr Hawkins wrote to the NHS Litigation Authority, as the trust was not reporting clinical mistakes. Initially, the NHS Litigation Authority would not get involved and requested my involvement, as Mr Hawkins’s Member of Parliament, which I duly offered. Two replies were received that indicated that the NHS Litigation Authority was involved in the case, despite previous assertions and written evidence that it was not involved. Mr Hawkins was notified in writing that the trust, on receipt of his letter of complaint, had instructed Hempsons in January 2007, with the NHS Litigation Authority directly instructing Hempsons and the trust from November 2007 to February 2009.

Hempsons was aware of a breach of the Limitation Act 1980 and the Data Protection Act 1998 when it disclosed to Mr Hawkins his missing medical records in October 2009. This means that the trust and Hempsons had illegally avoided disclosing all full medical records within statutory time limits and successfully passed the three-year limit for litigation. Mr Hawkins believes that indicates that the NHS Litigation Authority was aware that rules had been broken, yet failed to take retrospective action based on the strength of the evidence that he had disclosed to it in 2013.

“… the trust and Hempsons had illegally avoided disclosing all full medical records within statutory time limits and successfully passed the three-year limit for litigation.” 

A state body and a state-funded legal team committed illegal actions in order to deny justice to the citizen with the support of the NHS Litigation Authority and the complicity of the Ombudsman.

The actions taken by the trust, assisted by Hempsons and the NHS Litigation Authority from January 2007 to December 2013, clearly indicate that the trust was covering up a clinical incident and its cause. With so much time having passed since my constituent first exited the operating theatre in the summer of 2006, I hope that today the Minister of State will be able to afford Mr Hawkins guidance and support in this matter, and finally bring to some closure what has been a dreadful episode for my constituent.

You may expect the Minister to be horrified that various state-funded bodies had conspired to deny justice to a citizen harmed by the state in the first instance but Stephen Barclay, Minister of the department of health and social care was having none of it.  He used the usual caveats which allow politicians to show a clean pair of hands by stating that the NHS complaint system and the work of the Ombudsman are independent of government. Also, that it was not for the DoH to discuss individual cases.

If the bodies set up by government fail to protect the citizen who is to take them to task if they are deemed ‘independent’?

Then Mr Barclay casts aspersions on the validity of the claims and in doing so discredits the complainant.

As you are well aware … the NHS complaints process operates independently of Government, to prevent political bias in the handling of individual complaints. However, a number of points arise from the hon. Gentleman’s remarks, in respect of his contention that Mr Hawkins was let down by a number of individuals and organisations within the NHS. Specifically, it is alleged by Mr Hawkins that the hospital failed him by prioritising then Government targets, which delayed his operation; that the clinician failed him through clinical error; that the duty surgeon failed him by falsely reporting that his wound had healed; that the hospital failed him by not correcting the alleged mistake and by instructing lawyers; that Hempsons solicitors failed to disclose full records; that his own solicitors failed him by not obtaining his records; that his own clinical medical expert failed him; that the hospital failed him, regarding his report; that the Ombudsman failed him; and that the NHS Litigation Authority failed him.

Although the Department of Health does not comment on individual cases, and it is not for me to adjudicate whether all of those claims by Mr Hawkins are valid, it is worth noting that a very wide range of both individuals and organisations are alleged by Mr Hawkins either to have conspired against him or, indeed, to have failed him in this matter.

“… it is not for me to adjudicate whether all of those claims by Mr Hawkins are valid, it is worth noting that a very wide range of both individual and organisations are alleged by Mr Hawkins either to have conspired against him or indeed, to have failed him in this matter.”

Mr Hawkins provides us with a typical case study of state corruption and the misuse of power. This happens to thousands of people every year. But if they chose to speak out about the deliberate corruption and collusion of state bodies it marks them as a delusional fantasist or vexatious troublemaker.  Who would believe that state-funded bodies would conspire in such a concerted and prolonged manner?  Yet, to not speak out is to be complicit in the state violation of human rights.   So the brave or the foolish speak out and become victims of the state all over again.

Let’s give the final word to the Minister, Stephen Barclay. 

It is equally important that patients and their families are listened to and their concerns taken seriously and addressed.

That would be all the concerns which don’t indicate a deliberate cover-up and collusion by the state then Mr Barclay.


Mr Behrens response to PACAC – fact check.

When Rob Behrens took over as the new Ombudsman in April 2017 it was very much hoped that he would instigate a more open and transparent regime at the PHSO. Sadly this has not yet proved to be the case. Let us unravel some of the spin and obfuscation in his recent letter to Bernard Jenkin, published on 23rd January 2017 on the PACAC website.

Financial compensation paid in 2016-17.

According to Mr Behrens letter;

PHSO made 13 payments to complainants in 2016-17, totalling £26,333. This included a single payment made to a complainant’s solicitors to reimburse legal fees they had incurred of £24,855 in relation to one of our investigations. The remaining 12 payments, therefore, totalled £1,478 and were relatively small consolatory payments to complainants ranging between £50 and £228.

This recent FOI request from PHSO fails to mention the significantly large sum of £24,855 which must indicate a major failure on the part of PHSO. In other respects, Mr Behrens estimate matches up with the data previously released, although the smallest payment was £11.00 and not £50.00 as he claims. To put these payments in context it would have been far more helpful to list the payments made over a range of years. As can be seen below, 2016-17 was unusual for the relatively small sums of compensation paid out to mistreated complainants apart from the one major payment. It is interesting to note that the one significant payment clearly had legal backing.

FOI compensation payments Jan 2018


Delays in dealing with feedback from complainants.

When trying to explain the increasing delays Mr Behrens claims “the increasing number of investigations……led to an increase in the amount of work subject to review”

This is interesting as the previous Ombudsman, Dame Julie Mellor told PACAC that the increased number of investigations would save money by lowering the number of reviews requested.  Equally, in the 2016-17 Annual Report compiled under Mr Behrens stewardship it is stated that;

The significant decline in the number of complaints needing a review is likely a result of our more consistent criteria and ways of working at every step of our process. p17

In fact, the annual report appears to show that the number of reviews has indeed declined from 392 in 2014-15 to just 81 in 2016-17 so how does this explain the increasing delays in dealing with feedback?

reviews from annual report

Missing from this table, as it is every year, is the total number of review requests which is a very different figure to the total number of reviews.  PHSO decide in-house whether a review request merits an actual review and as the number of requests rises (due to poor performance) so the number of reviews decreases giving a false impression of the quality of decision making at PHSO.  The real question Mr Jenkin should be asking is ‘how many review requests did PHSO receive this year and why is that figure omitted from the annual report?

This FOI request from September 2017 gives the detail.  (The discrepancies in the figures is due to a discrepancy in response from PHSO).

In 2015-16 there were 1,969 review requests concerning the decision. PHSO reviewed 218 (11%) and upheld 19 (0.9%)
In 2016 – 17 there were actually 383 more review requests for decisions with the total of decision reviews at 2,352.  Even more people dissatisfied yet PHSO reviewed only 81 (3.4%) and upheld 15 (0.6%). Without putting the total number of review requests in the Annual Report they then try to use the lower figure to argue that their service has improved at all levels when the data show the absolute opposite. More dissatisfaction.

If review requests are considered to be a sign of dissatisfaction then it can be seen that this has increased at a near 20% rate which should be alarming.  Mr Behrens neglects to mention that of the 15 upheld reviews only 5 led to a changed decision which is about 1 in every 500 requests. The situation in 2015-16 was even worse when only 2 out 1969 review requests led to a change of decision. This is shameful and more appropriate for an authoritarian state than for a liberal democracy. Is there any other judicial or quasi-judicial body that has such a low rate of successful appeal or review? It shouldn’t be surprising though when reviews are carried out by the same body that made the original decision, in secret and without external audit. This is not an acceptable state of affairs and it will have to change. The only question is how long it will take and which officials and MPs will be seen by history as the champions of justice for speaking out.

Mr Behrens also claims that “our caseworkers do also regularly receive positive feedback directly from complainants about their work, even where we have not upheld a complaint”.

Well, that sounds very nice for all caseworkers involved but it is an easy statement to make without any evidence to back it up. So what does the actual evidence show? Well, according to a recent FOI request there were a grand total of 8 compliments recorded in 2016-17 from a total of 3,306 feedback comments ((0.2%)


The Customer Care Team, who consist of just 15 members of staff, are clearly run off their feet finding ways to turn down review requests, no wonder they don’t get many compliments.

Service Charter feedback.

Further on Mr Behrens states that according to the Service Charter, for “July to September 2017, 78% of all complainants agreed that we gave them the information they needed”

Well, that sounds very impressive. The information they needed about the investigation right? Unfortunately not. According to the Service Charter, it means:

We will explain our role and what we can and cannot do

We will explain how we handle complaints and what information we need from you

We will direct you to someone who can help with your complaint if we are unable to, where possible

We will keep you regularly updated on our progress with your complaint


So nothing at all to do with the really important information about the investigation, just basic things that should be taken for granted.

It is also stated by Mr Behrens that “70% agreed that we had provided a good service”

More impressive statistics. That does refer to the quality of the investigation right? Unfortunately not. According to the Service Charter, it means:

We will treat you with courtesy and respect

We will give you a final decision on your complaint as soon as we can

We will make sure our service is easily accessible to you and give you support and help if you need it  giving-you-good-service

So again, nothing at all to do with the most important part of the complaint, the quality of the investigation.

So why doesn’t Mr Behrens refer to any of the important statistics about the quality of the investigation? Well, let’s have a look at a couple:

Only 44% agreed that “We will gather all the information we need, including from you and the organisation you have complained about before we make our decision” This is down 8% from the previous quarter.

Only 50% agreed that “We will explain our decision and recommendations, and how we reached them”. This is down 9% from the previous quarter.

So when it comes to the actual investigation, the most important part of the complaint, the statistics are not looking so good. But what about one of the most important statements regarding the quality of investigations. The statement of impartiality. How do complainants view this statement?

“We will evaluate the information we’ve gathered and make an impartial decision on your complaint”  following-open-and-fair-process

Well, strangely enough, no figure has ever been published for the number of complainants who agreed with this statement. Why not?  Perhaps it such a small number that it is too embarrassing to publish? In the Complainant_feedback_survey_2015-16 only 35% thought the decision “followed an independent, fair, and unbiased assessment”. Perhaps that’s why they stopped asking the public that particular question.

Bear in mind that with all the Service Charter data just 24% of people who had a complaint investigated were contacted for feedback and 3% of people who had their case dismissed. (p13 Annual Report). Think how different these figures would be if everyone had automatic access to feedback their opinion of PHSO.

This independent study by Naomi Creutzfeldt found that only 12.4% of the public had trust in the public service Ombudsman. do-complainants-trust-ombuds (2016)

Historic Cases

Mr Behrens reiterates his claim that “there should not be a permanent body that routinely and independently reviews our decisions”, and claims that “the purpose of the Ombudsman is to be the independent complaint handler of last resort”. This would be fine if the PHSO delivered a high-quality service. It doesn’t and the statistics show that it doesn’t.

Isn’t the real reason for his attempt to quash the idea of any independent oversight of the Ombudsman’s decisions would be that, for the first time, the Ombudsman would become accountable, and the dreadful quality of the investigations could no longer be hidden?The Health Select Committee recommended an external audit of a selection of investigation reports to ensure quality and standards are maintained and indeed external examiners were employed for that very purpose, now all long gone. It would appear that Mr Behrens, just like his predecessor, is an expert in spin. Will Bernard Jenkin demand full disclosure from the Ombudsman? Mmmmmmm


A public information service brought to you by PHSOtheFACTS 



Half Hour Free Legal Advice & Getting The Most Out Of This Time

When you make a complaint about a public body they are able to use the legal resources paid for by our taxes. When their default position is to ensure damage limitation, you the citizen will have to fight for your rights. As part of PHSOtheFACTS helpful advice service, here is some first-hand information on how to get free legal advice via your local Citizen Advice Bureau. 

If you have any helpful advice to contribute please contact



Half Hour Free Legal Advice & Getting The Most Out Of This Time

It is common knowledge that Citizens Advice Bureau (CAB) is a valuable free service to answer any questions that may arise in life which we do not already know the answer to and many of us come away a more informed person after an appointment with one of their helpful volunteers.

We may find however that their limited knowledge is unfortunately not enough if we are considering pursuing/defending or are already involved in court proceedings. There could be legal procedures, time-limits and questions that we feel need to be answered and certain facts we need to be aware of before deciding what to do and how to move forward.

Fortunately and not so common knowledge is that many Citizens Advice Bureau’s can arrange for you to have a fixed fee or very often free hour appointment with a trained legal advisor/solicitor who visits the bureau around 1 day per month to help you decide whether to take your case further.

There is a way of receiving the absolute maximum benefit to this very small amount of time you have. You are only allowed one session per case/issue and the aim is to come away with as much legal knowledge regarding your own personal ongoing issue as is possible. I have used this free service myself which I found very useful.

How to receive free legal advice from trained legal advisor/solicitor at your CAB

  • Firstly check to ensure they provide ‘this’ service at your local CAB.  Not all CAB’s provide this service & if you are considering court proceedings you cannot afford to waste any time.
  • You will then need to attend an ordinary appointment and meet with a CAB volunteer with the intention of receiving time with the trained legal advisor/solicitor thereafter. When attending the appointment go along with your information, details of your case and prepare some of the more in-depth legal questions you would like to know the answer to and you are struggling with. (questions you need to know but only someone trained is likely to know the answer to)
  • Some volunteers carry enough knowledge to provide you with useful answers and if they do not they will gladly look it up online to see if they can help. They will not, however, be able to provide you with more detailed legal answers or be able to provide you with the merits/downfalls of your case and legal requirements.
  • It is not until they themselves feel that they are unable to help you any further will you qualify for the trained visiting legal advisor/solicitor.  They may even recommend a local solicitor’s that can help you and give you their details (which you can note down and do anyhow thereafter).
  • If they do not offer this service to you but you are aware they are able to be assertive and say this is what you need to happen – ‘Half Hour session with the visiting trained legal advisor/solicitor’ and they should make the appointment for you.

Getting the maximum benefit from the little time you have. 

The Legal Advisor like the PHSO & ICO is said to provide an ‘impartial’ service. They avoid giving false hope to anyone considering taking their case through the courts and for good reason.  They will also not become excited if your case initially shows a very strong hand.  It is often that after a meeting which initially provided you with hope for justice you leave feeling deflated once again over a matter that has already caused you a great amount of pain and distress. In order to provide you with a detailed & informed opinion a greater amount of time would usually be spent firstly looking through your information then discussing so you really need to make the most of this one-off free opportunity. 

You will be allowed only one session per issue/case which is only 30 minutes and there are two ways of doing it. In both cases, I would stress writing down every answer.

  1. The first way is to go along as expected with your case records/information/letters and let the legal advisor look at them.  A timeline of events and actions is always useful. Thirty minutes is not very long at all and the information you receive will be limited. You will also receive an opinion which should be impartial.
  2. The second way I have found to be much more productive. It involves preparation and a list of questions that you need to know regarding your issue. You refrain from passing your documents over but you will leave the appointment far more informed and knowledgeable of the law relating to your situation.  After all, knowledge is what you need to make an informed decision when considering court action.  The law applies to everyone so the more legal facts/requirements in the 30 minutes you can gather the more informed you will be. There will be no ‘impartial’ opinion but when you gather maximum facts and information in 30 minutes and you can see yourself if your case ticks the boxes at this very early stage. You can learn what a case needs to move forward, time limits & legal requirements. You will receive unbiased information and cold hard facts. You can leave the appointment with around 15-20 questions answered to help you to decide and make your decision.  Even if you leave the appointment with 10 answers and pieces of information it is likely to be more than if you passed over your documents and waited for the ‘chat’.

If you would like to know if you are within the time-limits it is far quicker to ask what the time-limit is than for the legal advisor to search through your documents, ask themselves the question if you are within the time limit and then share an opinion based on the facts.  You may need to edit your questions down & be aware that some will take more time to answer so think carefully about which questions to ask.

Take the time to study your own documents and become aware of exactly what you have and what has happened to date.  It is highly likely you know your personal issue inside out but lack the legal knowledge surrounding your case. The law applies to everyone so write down all questions you need to be answered and keep them ‘matter of fact’.

You will need to know requirements/obligations to legal procedures which again applies to everyone and very quick and easy to answer. You will need to know answers to questions relating to your personal issue but keep them hypothetical and you will receive the answer that applies to you without drifting off course and wasting valuable time.

Research  Time – 30 minute session

The legal advisor will already be aware that you have documents from your first meeting with the CAB volunteer and may be a little surprised at the ‘not handing documents over’ approach. In order for this to work you must be fully aware of what documents you have and you will also need to be brave and tell them exactly what you are going to do with this 30 minute opportunity and their expert knowledge.

Legal Advisors must answer your questions and give you the information you need and inform you how to handle a problem if they are asked and the options that are available. They must inform you of your rights to make a complaint and provide you with information about costs so they will comply with your request to simply ask them a list of questions in order to help you with your issue.

Questions such as:

  1. “How can someone receive medical records?”
  2. “If someone has been failed during a medical procedure how should the organisation respond to the complaint?”
  3. “Who should be contacted when an organisation does not respond to a Subject Access Request within 40 days?”
  4. “How long does one have to make a claim?”
  5. “What evidence is needed in order to make a claim?”
  6. “Is there an essential procedure one must follow prior to court action & if so what is it?”

You can ask:

  1. “What are the organisation obliged to do after a complaint is made to them?
  2. “What factors need to be taken into account for a case to have merit?”
  3. “What action needs to be taken to make a claim?
  4. “How can this be done?”

Answers to the above will be most helpful and provide insight of your own case merits/downfalls and will help you with the ultimate question:

“Is my case worth pursuing via court proceedings ?”

There is no reason not to take your own documents with you and keep them in your bag.  It may just be the case that you feel that you cannot avoid bringing them out for a matter of reference or self-reassurance but be aware the clock will be ticking and the legal advisor will hold a wealth of information. Information is knowledge and the more of that you have the better. We do not all have the luxury of money or time with a solicitor so this is simply a way gaining maximum benefit of knowledge from this very often ‘free’ nugget of opportunity whilst we are deciding. Good luck.












Open Letter to PHSO

“Marks Out of Ten”

Guest blog from phso-thefacts member

In 2013 PHSOthefacts formed and has grown significantly since that time, with the influx of more and more disgruntled and distressed complainants searching for answers.  Complainants who did not receive justice through PHSO and were left more harmed, through taking their complaint to that final stage, in an attempt at redress.  In discussion, PHSOthefacts members have discovered over time, that the same communication tactics have been used by not only the body they complained about but PHSO itself.  There is clearly a format to fobbing off and side-lining complainants and some of these stock tactics are listed below.

The new Ombudsman, Rob Behrens, promises improvement and change, we want to test these promises and see if people continue to receive the same stock handling, as we continue this journey to justice.  This post, therefore, constitutes an open letter to the new Ombudsman, who we will benchmark for his performance against these communication tactics:

  1. discrediting you – this can take the form of the following type of phrases “I do not find your point/claim relevant” (implying you are being frivolous or confused), “I disagree with your opinion” (implying you are incorrect or deluded), “it is unreasonable/impossible to expect” (self-explanatory and we don’t have to deal with this expectation because we have labelled it thus) or “please do not make false statements” (you are lying/being unprofessional/vexatious, which is a thinly-veiled threat to cease communications and they have now documented the excuse), “Person X’s expert opinion is” (you are a dumb Joe Public and cannot possibly know more than the alleged expert so you are clearly delusional);
  2. statements of I/we are willing to listen/learn/be transparent – you won’t get the resolution/response you are seeking, I/we want to look good in the public eye or when a third party oversees me/us, so a show will be made of holding meetings or seeking your feedback in writing and thanking you for it (but summarily disregarding it) so I/we can document it was done (i.e. a process was followed) and you just need to get over it and move forward, because this is a firmly closed door;
  3. ignoring evidence from reliable sources – you may have done Freedom of Information requests or gone over documented information with a fine tooth-comb and can prove what you say, but the facts you present will be glossed over, explained away, or most likely, simply strategically ignored in the response;
  4. padding and diverting – the communication will expend a minimum of one lengthy paragraph and often more, to pad out the response by stating the exceedingly obvious, such as what the body’s purpose is and what it does, in an attempt to divert from the fact that they have paid lip service to their remit and may include a paragraph telling you to approach someone else/another body in the ‘not in my remit’ game;
  5. strength in numbers/intimidation/bullying – stating that x, y, z person/body/group (especially those with alleged stature or kudos) ALL think differently than you, so you are just an insignificant little nobody and no-one else will agree with you. Otherwise known as circular assurance as each body closes your case down without proper investigation;
  6. apportioning blame/psychological warfare – apologising for YOUR opinion, view or feeling on the matter, so at first glance appearing conciliatory, but in fact denigrating YOU as being at fault for having said opinion or feeling, because clearly they have done nothing wrong and you are at fault for whatever it is you are communicating with them about;
  7. promises of changing/improving – this is another deflection, trying their arm at telling you things will be better in future, in the hope you will forget the issue YOU are contacting them about, because really you should just be satisfied with their glossy promises;
  8. taking control – authoritative statements about what will happen next, making it clear they have all the power and you just have to go along for the ride, may also include their version of minutes of any meetings that have taken place which you know to contain incorrect statements as you were present, designed to confuse and outrage you and make you feel it’s a battle not worth fighting;
  9. making false statements – sometimes this is simply incompetence, but more often this is to document factually incorrect information and has the added bonus of making you despair still further, so are more likely to give up or expend more time and effort responding to the inaccuracies which deflects you further and further from your initial point. Once it’s documented, the falsehoods grow and the runaway train is harder to stop;
  10. copying in third parties as a threat – gives the illusion that the author of the communication is ultra-confident in their missive and that they have friends (often in high places) who will back them up so you had better back off as their army is oh so much bigger than you.

PHSOthefacts are a group of valid complainants who seek reasonable outcomes.  Learning can only truly come, when cases have been fully and honestly reviewed, to identify what went wrong and remedy what can still be put right.  PHSO made the decisions not to investigate or not to uphold and only PHSO can correct those actions.  PHSO needs to gain credibility, this won’t happen until it admits its own wrongdoing and provides redress, only then can it criticise and become an exemplar for the bodies it investigates.  We await your future communications with interest (and score chart at the ready), Mr Behrens.

Jeremy Hunt goes for a spin …

We all like to put a positive gloss on things and none more so than a government Minister. Jeremy Hunt is working hard to put out the message that the NHS is improving under the watch of the Conservatives and despite facts and figures which suggest the opposite the media message is clear – the NHS is safe with us. When you have the media on-board it is easy to maintain this central narrative as you need to see both sides of the story to understand the truth behind the headlines.  On the surface, this recent announcement looks like nothing but good news.

Hunt To Pledge Independent Investigations For Families Who Endure Stillbirth


But when you dig a little deeper you have to ask yourself why are these independent investigations not already commonplace? After all the Health Service Ombudsman has been in existence since 1993 with wide-ranging powers to investigate such instances. Interestingly, in all the articles citing this recent announcement, none of them mentions the work of the Ombudsman in this area or how the new Healthcare Safety Investigation Branch (HSIB) will carry out so many independent investigations when it is only funded for 30 investigations per year. None of them except this one by Bruce Newsome and published in Reaction on 28.11.17 – so read on to get the bigger picture before you make your mind up. health-secretary-still-doesnt-understand-risk-management/

Hospitals need to be accountable to someone other than themselves: here’s why


The Health Secretary says that the NHS must reduce maternity deaths and injuries by learning lessons, but yet again he’s saying something agreeable while avoiding accountability.
Year on year, the NHS is responsible for an unusually high rate of avoidable deaths compared to its peers. Its cost of malpractice also is high relative to peers: in fiscal year 2016-2017, the NHS paid more than £1.7 billion in damages and costs for clinical negligence, up from £1.5 billion in the previous year.
Why is Jeremy Hunt suddenly focused on learning lessons from maternity risks? He is perhaps belatedly compensating for unauthorized revelations in August that English maternity wards temporarily closed 382 times in 2016 – a record in recent years. The National Childbirth Trust previously reported that mothers in labour are being “treated like cattle” in NHS wards: half are left alone for hours without care or painkillers. The report’s authors – in consultation with the professional groups – chose to blame understaffing. Hunt’s new statement admits that staff numbers must increase. In immediate reaction to Hunt’s statement, journalists on BBC Radio 4’s Today Programme and a representative from the Royal College of Midwives blatantly colluded to discuss understaffing as the only issue.
What everybody involved agrees to avoid is structural accountability for malpractice. Hunt says all unexplained maternity cases should be investigated “independently” so that “lessons can be learned” without “blame,” but British healthcare is already subject to more than 70nominally “independent” investigative organizations (by Parliament’s own count), and the lessons are always the same, but never learnt.
Currently, hospitals investigate themselves; if patients are unhappy, they can raise a complaint to one of those “independent” organizations or start civil legal action. Increasingly, patients go straight to legal action, given the frustrations and biases of officially “independent” organizations – whose dominant incentives are to avoid work and to protect the government and/or the professions that they represent, resource them, and staff them. The other term used officially for these organizations is “arms-length” – that’s not the same as “independent,” but since neither term is legally defined, these terms are used unaccountably.
The self-interests can be appreciated from the fact that the Parliamentary Health Services Ombudsman (PHSO) – the ultimate “independent” body for any complainant – investigated less than 8% of complaints in peak year, or merely 2,199 complaints; NHS England alone received 175,000 complaints that year. In the most recent year, the number of complaints rose, but the PHSO’s rate fell below 5%. According to heart-breaking testimonials, the other 95% are treated by PHSO staff as time-wasters, liars, idiots, fantasists, egotists, and objects of ridicule.
This is not an undiscovered problem, it’s an officially ignored problem: the PHSO has been the top of the pile since 2009, the anti-PHSO pressure groups date from around then, Jeremy Hunt has been Health Secretary since 2012, I have been reporting the structural explanation for Britain’s high health risks since 2013, and the Public Administration Select Committee has complained since 2015 that the PHSO is practically unaccountable to Parliament.
Yet here we go again: Hunts promises more “independent” “lessons-learning.” Hunt says that the Healthcare Safety Investigations Branch (HSIB), which became effective in April, should investigate all cases of unexplained serious harm during maternity care, but it is resourced to investigate 30 cases per year, when about 1,000 babies per year unexpectedly die or are severely brain damaged in Britain during maternity.
Hunt says the HSIB is “independent,” but the HSIB is not independent: it is funded by the Department of Health and sits within a department called NHS Improvement.
Hunt’s new statement on maternity risks went on: “We have to change a blame culture into a learning culture.” In fact, we don’t have a blame culture, because none of those “independent” organizations blames individuals. So far as they ever reach judgements, these are to the effect that “mistakes were made,” but no person is held accountable. Focusing on culture is convenient because a culture is the attribute of a group, but is no person’s fault. The HSIB was set up explicitly to avoid “blame” in favour of “learning lessons” from a few exemplary cases – but this is contradictory, since selective and blame-less investigations cannot learn all the lessons.
More importantly, a system without blame is an unaccountable system, and unaccountable systems are riskier systems. Unless the persons who are the sources of health risks are accountable for health risks, health risks will continue to move in the wrong direction.
Accountability should start with the government. If the Department of Health were to be made responsible for investigating the hundreds of thousands of complaints made against British health and social care per year, and were to be made accountable to Parliamentary committees for reducing health risks, our health risks would soon improve. Britons are dying for accountability.

Bruce Newsome, Ph.D.

Evidence-based knowledge and practical skills
“No assumption too sacrosanct”



The Public CONfidence Trick

PHSO are once again in transition. The recent loss of both the Ombudsman, Dame Julie Mellor and the Deputy Ombudsman Mick Martin under a cloud of collusion has left the reputation of the Ombudsman’s office somewhat dented to say the least.

Public confidence is essential to public services.


No matter what chaos is happening on the ground the public must remain confident that the organisation is working for the common good. Rule number one in Sir Humphries Rule Book.

Rob Behrens took up the role of Ombudsman in April 2017 and is in charge of the new strategy to be launched in 2018 and last until another new strategy is introduced. His first priority has been to listen to critics, learn lessons and with improvements in place, restore public confidence in the Ombudsman service.

Fortunately, for PHSO most of the public are ignorant of their existence. They rarely manage to score above 20% on public awareness surveys. Equally, there is very little media coverage of the Ombudsman’s work apart from that released by their own media team. A media team who appear to be on something of a campaign to restore public confidence despite the fact that the hard work of making the service fit for purpose has yet to be done.  There are mixed messages here. In August Mr Behrens informed Shaun Lintern from the Health Service Journal that standards had not been adequate and substantial reform was required to make PHSO an exemplar service. It was, in his own words, ‘a big job but the transformation has begun.’ mr-behrens-makes-promises-of-change-for-the-future-but-what-about-the-past/

But just a month later and the media team are publishing letters in local papers such as the one below from The St Ives Times and Echo (27.9.17) encouraging people to make a complaint to the Ombudsman, despite the fact that just a month earlier Mr Behrens had stated that, ‘critically, we have not yet found a way of relating to complainants so that we understand their cases and that relationship is key to a good outcome for the process whether or not we find for them’

THE NHS provides excellent care to thousands of people day in, day out. We all have an understanding of the pressures the NHS faces, but this should not stop people from speaking up when things go wrong.

Data published last week by NHS Digital revealed that there were 208,400 complaints about the NHS in 2016-17. However, all too often, patients and their families are not fully aware of their rights. The NHS Constitution states that everyone has the right to complain, to have their complaint about NHS services acknowledged within three working days, and to have the matter properly investigated.

It is important that patients are also aware that if they are dissatisfied with the way in which their complaint is handled, they have the right to bring their complaint to us the Parliamentary and Health Service Ombudsman (PHSO)  for an independent and impartial view.

Where the PHSO upholds complaints, we recommend that the NHS puts things right by offering an appropriate remedy. This might be an apology, a financial remedy, the creation of action plans to ensure mistakes are not repeated, the introduction of additional staff training, or changes to policies and procedures. Throughout our work, we see a wide variation in the quality of NHS complaint handling so it is imperative that people know their rights and are not afraid to complain when mistakes are made.

ROB BEHRENS Parliamentary and Health Service Ombudsman

You may indeed have the right to complain to the Parliamentary and Health Service Ombudsman but you do not have the right to an investigation. That is up to the Ombudsman’s discretion.  In 2016-17 about 25% of the complaints made were assessed, only 13% made it to investigation and a tiny 4.7% achieved any type of uphold.  For 95% of the people submitting a complaint, it was nothing but a frustrating, waste of time.

It would appear that PHSO are focusing on restoring public confidence when they should be focusing on restoring a service fit for purpose.  In the  2017-18 Business Plan

there is a success criterion to consistently achieve 95% positive or neutral media coverage.  

By default, the media coverage will be positive when we all have something good to say, but it would appear that PHSO aims to meet the criteria without necessarily achieving the success.

PHSO regularly release positive statements on Facebook demonstrating the values of their organisation. Comments are then made by members of the public and in my experience, these comments tend to be negative. In fact, I have never read a positive one yet.  On recent postings, I’ve noticed that it is possible to see the number of comments made but for some reason, the comments themselves will not open. Mmmmm – very curious.  The same is true for PHSO posts to twitter. The comments are hidden from public view.  Why would this be?

Meeting the media target requires close monitoring of social media but it shouldn’t include censorship.

The PHSO media campaign is, however, in full swing and this month Mr Behrens has launched Radio Ombudsman in order to engage the public in dialogue. Guests will be invited where PHSO decide they are ‘informed or interesting’ and questions are selected from Twitter. Where is the locus of control in this arrangement? Firmly in the hands of Mr Behrens who chooses both the guests and the questions. I listened to the first podcast which was an interview between Mr Behrens and  Scott Morrish a previous complainant.

To open, Mr Behrens stated that the Ombudsman is ‘independent’ and ‘impartial’ yet there is no evidence to support this view but that of the Ombudsman himself. The Patients Association, phso-thefacts and submissions to PACAC repeatedly cite bias towards the public body under investigation.  But no doubt Mr Behrens would disagree with that.  He disagreed on a number of points made by Mr Morrish but did not substantiate the reasons why. Is this a genuine attempt to listen and learn or just a masterclass in PR spin?

Disagreement without good reason is just denial.

On August 13th Bruce Newsome posted a raw and undoubtedly negative account of the way PHSO fail to manage risk on the Conservative Home website. 

Mr Newsome is a lecturer in International Relations at the University of California, Berkeley and an expert in risk management. His aim was to draw attention to the lack of accountability for the work of PHSO and as previously articulated on this site, without accountability you get impunity.

Within two days of publication, Conservative Home received a complaint from PHSO regarding the accuracy of the article. No doubt PHSO would have been delighted for the piece to be removed or amended to their satisfaction.  Fortunately, Mr Newsome did neither. But this is all very worrying.

When you achieve your media target by controlling the media coverage you have clearly missed the point.

My advice to Mr Behrens would be to get on and deliver a customer focused Ombudsman service, hold authorities to account and make sure that learning is acted upon. Let the positive media coverage follow all by itself and be a true measure of his success. I would be delighted to publish a good news story on phso-thefacts, I just don’t have one yet.





PHSO offers to train NHS staff to improve complaint handling.

  On 22 August, Shaun Lintern from HSJ released two interviews from Rob Behrens, the new Health Service Ombudsman.  You can read the first one here

Mr Behrens talks in the first interview about the failings of PHSO and the need to invest in training in order to ‘professionalise’ the staff. In the second, reported in full below, he says much the same about NHS managers and complaint teams. In a move away from previous Ombudsman responses, which preferred finger wagging to intervention, Behrens offers to extend training to NHS staff to improve complaint handling at the first-tier level. Improvements here would clearly save time, money and great distress for all parties as complaints stretch out over years without resolution. The only question is, given that neither the PHSO nor the NHS presently has the expertise, who is going to carry out the training?  Just a thought.                     Della Reynolds


blind mice

NHS managers think admitting mistakes is wrong, says PHSO

By Shaun Lintern22 August 2017

Senior leaders in the NHS have believed owning up to mistakes was not the right thing to do for too long, the new health service ombudsman has told HSJ.

Rob Behrens, the new head of the Parliamentary and Health Service Ombudsman, warned that the NHS was still too defensive about mistakes and that it failed to invest in proper complaint handling.

In a bid to show that the PHSO was willing to help the NHS, Mr Behrens said it would offer training to NHS staff next year on how to better handle complaints. He also promised no “negative press releases” but instead there would be constructive criticism and sharing good practice.

Mr Behrens said: “We have a very defensive NHS culture. We have complaints handlers in the NHS who don’t have the skills or the authority or seniority to do their job to the best of their ability, and we have an absence of flexible resolution techniques to deal with issues. These things will need to change.

“This is a big issue and I don’t have easy answers but I think one of the problems for the NHS has been a senior management view that to own up to a mistake is not a good thing to do. I don’t think the real world is like that.

“No one is saying the NHS is not a prized national asset; no one is saying that professionals don’t make mistakes, and I think with greater confidence and with a more supportive collegiate environment it is possible to create a culture in which you can deal with complaints in a less defensive way.”

He said trusts needed to understand that the PHSO was “not gunning for them” but wanted to provide redress for people unfairly treated. He added: “It is not about trying to rubbish organisations. We need to talk to people to explain that and to encourage them to take a more transparent view of these things.”

Mr Behrens said neither the NHS nor the PHSO used mediation and early resolution actions to deal with complaints, which he wanted to see introduced.

He added: “In order to contribute to the development of complaints handling in the NHS, through our strategic plan, which will come out in March 2018, for the next three years we will offer a limited capacity to complaint handlers in the NHS to uplift their skills and to demonstrate good practice to them so they can use it in their own organisations.

“It’s not nailed down yet. There’s a lot to discuss because we can’t do it on our own. What we want to do is to provide a limited amount of that training so that other people could copy it and use it themselves. I think we have the knowledge, commitment and skills to kickstart something important and that’s what I want to put on the table.”

Mr Behrens accepted that in the past the PHSO had not offered as much practical advice and examples of good practice as it could.

He said: “You won’t see any negative press releases from me. You will find me to be endlessly constructive in the context that there are examples of maladministration and poor service that have to be addressed, and I know that from talking to and looking at cases personally where things have happened that should not have happened. We won’t shy away from that but we will balance that with examples of good practice so that people can understand and take pride in things when they go well.”