Mr Behrens, our new Ombudsman, wants to hear from you.

Rob_Behrens   It would appear that Mr Behrens who took up his appointment as new PHSO Ombudsman at the beginning of April is ready to hear from ‘service users’ as he starts (yet another) programme of reform.

In all of this, we need to keep listening to people who use our service and be flexible, but not unprincipled, in response. I know that this is exactly what Amanda Campbell, our Chief Executive, and the Executive Team are working towards.

Keep your eye on the ‘unprincipled’ part of this response.  It could well be the loophole through which PHSO will escape any obligation to deal with poorly handling historic cases.  For instance,  would it be ‘unprincipled’ to reopen a case against an authority where they have previously closed it without uphold?  Would it be ‘unprincipled’ to hold to account individuals who may not have been at the organisation when your complaint was handled 3, 4, 5 years ago?  Would it be ‘unprincipled’ to cause distress to public sector employees who have already been told they have not acted with maladministration or hold to account PHSO workers who have now left the organisation?

We must give Mr Behrens the benefit of the doubt – for now.

You can read his full statement here  and do let him know exactly what you think of PHSO – after all, he is looking forward to hearing from you.

Towards the end of May I’ll be taking part in a Twitter Q&A through the @PHSOmbudsman Twitter account. If you have any particular questions or topics you’d like to us to focus on, please email them toDigital@ombudsman.org.uk

If you have any questions regarding an individual complaint please email Phso.Enquiries@ombudsman.org.uk

I look forward to hearing from you.

Welcome Mr. Behrens – here is your starter for 10 question

Q.  Why do so many people make complaints to the Parliamentary and Health Service Ombudsman when there is no merit to their complaint?

It’s odd isn’t it, we British are not a nation of whingers.  If someone treads on our toes we are the ones to say sorry.   Yet for some inexplicable reason, nearly 30,000 of us make mainly spurious complaints to the Ombudsman.  If the uphold rates are to be believed we are a nation of vexatious fools.

In 2014/15  PHSO received 6,920 parliamentary complaints.  Of these, just 885 (12.7%) were investigated and a mere 323 (4.6%) upheld to some degree.  95% of the people who complained did so without just cause.

In 2015/16 PHSO received 6,323 parliamentary complaints.  Of these, just 649 (10.2%) were investigated and a minuscule 279 (4.4%) upheld to some degree.  Once again over 95% of the people who took the time and trouble to pursue a complaint over many months or years did so for no good reason.  Just time wasters with nothing better to do than write letters and moan.

This chart shows that for the last three years, despite the ‘more impact for more people’ initiative there has never been more than a 30% chance that PHSO would be able to positively resolve your complaint and in 2015/16 that fell to just 21%.  (See blue figures, final row – Put right by PHSO in total)

 

And having been told that their case has no merit, why is it that so many ask for a review of this decision? These crazy fools have been caught out in their malicious mud-slinging, yet still they go back for more.   In 2015/16 a total of 1,969 people requested a review which is 24.2% of the 8,125 complaints assessed.  Don’t these people know when the game is up?  percentage_of_review_requests_FOI

So here is the big question Mr. Behrens, is it that year on year the British public make false claims and simply waste public money on vengeful complaints.  Or is it that PHSO act with bias towards the public bodies, skewing the data in their favour?

Let’s look at the evidence:

The Patients Association, who work with hundreds of people who have made health service complaints to the Ombudsman have used true stories to demonstrate that the Ombudsman is both inept and actively biased.  The strength of this view has triggered three reports on this subject which you can read here;  PHSO-The-Peoples-Ombudsman-How-it-Failed-us  (2014)  PHSO-Labyrinth-of-Bureaucracy (2015) and PHSO-Follow-up-report (2016).  This latest report lists as the two top issues that PHSO;

  • does not investigate complaints fairly – evidence is ignored;
  • is biased in favour of the organisation they are supposed to be investigating;

So, Mr. Behrens, if you are looking for bias what form would it take?

1. Failure to investigate valid complaints. 

PHSO regularly find any excuse to put the complainant back to the original body complained about (unless they are trying to meet their 4,000 cases investigated target by the end of the financial year of course).  There must be oodles of evidence for this in those stored PHSO case files.  Just take a look at this data regarding complaints made about the Information Commissioners Office (ICO).  Complaints about ICO from 2007  If you look at 2016, the last data recorded, you will see that 98 complaints were made about ICO in that year, only 6 (6%) have been investigated and to date no upholds.  Don’t look and you don’t find. 

2. Timing complaints out. 

Ombudsman legislation states that the complainant must approach the Ombudsman within twelve months of first knowledge that something was wrong.  That is an arbitrary date which should be changed to 12 months from final closedown of initial complaint.  Although the complainant may give a date that they were first aware it has been known for the Ombudsman to disagree and consider a different date to be the most likely and use that to invalidate the complaint.   PHSO also give advice to public bodies on using ‘time out’ procedures as you can see here.

3.  Failing to take account of any evidence which does not fit the chosen narrative.

There are many examples of this which is no doubt why ignoring evidence was top to the Patients Association list.  Here are a few to start you off.

  • ..we cannot question “discretionary” decisions made without maladministration. The fact that your adviser has a different opinion on the available evidence does not in itself mean that there was fault in the decision-making process.

PHSO ignored written evidence from GP’s, health records, hospital records and solicitors’ letters, which all disputed their findings.

  • You have stated a number of points disagreeing with our decision on the dosage of rotigotine and Madopar, including disagreement with our adviser’s opinions. We have noted the guidance you have referred to in relation to these aspects, both the recommended dosage of the rotigotine patches and the Parkinson’s UK document. We acknowledge your view. However our advisers are very experienced physicians and we have no reason to question their clinical view, both in relation to the dosage of the Rotigotine patch and the Madopar. We are satisfied that our advisers were aware of and referred to all the relevant guidance and standards that apply to the issues we looked at. Therefore we will not comment any further on this and our decision remains unchanged.

Their advisers are so experienced that their clinical views cannot be questioned, despite the fact that neither of them are experts in Parkinson’s disease, merely consultant physicians. Again the last couple of sentences seem to be boilerplate. The PHSO don’t have to prove to me that they have considered the guidance, just satisfy themselves (so they claim)

  • The first PHSO investigation finalised on 23 July 2013, investigating officer XXXX, didn’t use the statement from a Judge, stating that the court deemed that my husband lacked capacity (23 December 2011), the CMHT deemed my husband fit, well and in sound mind and body with full capacity and discharged him from their care as fit and well on 22 December 2011. He was in court with me on 23 December the day after the Trust declared him well on every front, sat in a wheelchair, with second-degree burns to his feet, looking as though he was going to lose his foot, emaciated and completely bonkers, the court ushers mentioned he was quite delusional. This wasn’t used in the report. 

 

  • But In respect of complaints I made at draft findings stage in relation to the PHSO not taking the following into consideration:
    • NICE Guidelines
    • NHS Constitution
    • Mental Capacity Act
    • Human Rights Act
    • The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 in handling the complaints

    The PHSO responded by saying:

     ‘You say that we have failed to consider a number of guidelines, standards, legal requirements and Human Rights breaches when investigating our complaint.  It is for us to decide which standards are most relevant when investigating complaints.  That is what we did.’

     

4.  Finding no link between maladministration and harm. 

This requires some crystal ball gazing but evidently, PHSO are expert at predicting that the harm would have been caused in any event or that it cannot be proved that the action caused the harm even when the balance of probabilities is overwhelming.

  • ‘we are unable to explain why you were fine before the smear test and were in pain later.  We recognise that this will be frustrating for you.  We asked our advisor if there was any further explanation she could add and she reiterated that the speculum examination will not have been the cause of your persistent pain.  It would be inappropriate for us to try to offer you an explanation as this would be speculation’.

  • The first report found that, ‘The medical care fell so far short of the applicable standards at to amount to service failures’, and ‘The nursing care fell so far short of the applicable standards as to amount to service failures’.  That part was upheld, but it was stated that even if my husband had of received the correct diagnosis, which was changed from the diagnosis he ended up with back to the correct diagnosis after the investigation, that we would never know if the outcome would have been different. This was based on ‘probability’, and the report stated that the injustice we suffered was that we would never know if things would have been any different.
  • 28 – “we consider we cannot prove that the long term problems you have reported were caused by clinical failings from the Trust(in part because your operation records were lost)”.

5.  Putting things right. 

You may have presented conclusive evidence of appalling practice yet if the public body inform the Ombudsman that they have since ‘put things right’ there will be no uphold recorded in your case.  It needs to be noted here that PHSO have no remit to check that appropriate actions have been taken and neither do CQC follow up the supposed action plans.

  • You disagree with our findings on the care provided to your mother with regards to her pressure sore. As our report explains, there is evidence in the medical records that podus boots were used. We are unable to say which particular type was used as there are many but the evidence shows podus boot was used. We found that the foot drop could have been prevented with regular observation and physiotherapy. However, the Trust have already taken steps to put things right by updating their guidance for relieving pressure sores, and the type of boots offered, which is in line with the new guidance in 2014; this was after your mother’s time in hospital. As the Trust have already taken steps to put things right, we will not be asking the Trust to take any further action on this and our decision remains the same.

6.  Illogical and unsubstantiated conclusions

As the investigation process is largely carried out ‘in secret’ it will not be until you receive the draft report that you will find that PHSO have (mis)used the evidence to draw illogical and unsubstantiated conclusions which deny uphold.

  • You have said that your mother had not eaten anything and had very little fluids for more than 36 hours prior to the discharge. You said she should not have been discharged in this condition. Our advisers have reviewed all of the relevant information in relation to the discharge and we do not consider that she was unreasonably discharged. We can appreciate that she deteriorated further in the discharge lounge and she was readmitted. However our advisers have taken the overall clinical picture into account and your mother not eating and limited drinking was in line with how unwell she really was. lt would not be expected for her to be eating or drinking, given how unwell she was. Our decision has not changed on this aspect.

So it seems she was so unwell it was OK to discharge her!!?  The Trust actually acknowledged the discharge was inappropriate and apologised and arranged for a review of discharge procedures but this was ignored by the PHSO in their desire not to uphold the complaint.

  • the PHSO agreed that it wasn’t necessary to write on the discharge summary that my husband had been given a CT scan of the brain that showed brain damage, the PHSO agree with the Trust that the diagnosing of old brain damage (husband was in a coma for nearly three days), was a ‘fairly common mistake made by general radiologists to make, the PHSO agreed that it was acceptable that if thinking the brain damage was old it was feasible that no neurological input was necessary, even though my husband was admitted with GCS8 coma.

7.  Ignoring comments made by the complainant on the draft report. 

Once you have the draft report you have the chance to correct any errors.  However, all too often PHSO will simply ignore any comments you make at this stage and plough straight onto the final report which is identical to the first despite pages of comments from the complainant.

  • The report which was sent to you on 8 March 2016 was our draft report with our provisional findings. This was explained in the covering letter that came with the report. We offer both the complainant and the Trust an opportunity to comment before we reach our final decision. As you have not provided any new information and the majority of your comments are reiterating your original complaint, our decision has not changed. Therefore, our final decision and final report has now been issued.

More boilerplate. They give the complainant a chance to provide comments on the draft report before ignoring them completely.

  • We are sorry to hear that you feel ‘the report leans heavily towards favouring the hospital’s account of events and does not give any credibility to my personal testimony.’ I can reassure you that we have carefully considered all the available evidence, including what you told us, in order to reach an independent and impartial view on your complaint.

8.  Sharing report with the public body before sharing with the complainant. 

When PHSO propose to uphold a complaint against a public body they will usually share the draft report with the body under investigation first and ask for feedback.  This can lead to a second ‘draft’ report being prepared and the complainant will have no idea that a ‘secret’ report has already been shared and commented on.  This favouritism is most probably caused by the fact that the Ombudsman has no powers of coercion so has to ‘negotiate’ an outcome that the public body is prepared to accept. ombudsman-to-public-bodies-please-do-as-i-say-pretty-please-ill-be-your-friend/

  • You are concerned that we shared a copy of our first draft report with xxxx without sending it to you. When we propose to partly or fully uphold a complaint, we often send it to the organisation concerned to let them comment on the shortcomings we have identified. On occasion, we change our decision in light of comments made by the organisation and/or because they might have sent new information which made our provisional decision wrong. With regard to your complaint, xxxx’s response caused us to reconsider our decision. I appreciate that you might disagree with this process, but we could not ignore xxxx’s response which caused us to reflect on and change our findings. I can see that we kept you updated while we discussed our provisional findings with xxxx and that we gave you the same opportunity to respond to our findings when we shared the updated draft report with you.”

Conclusion:

These snippets of evidence, coupled with those contained in the reports presented by the Patients Association should give you, Mr. Behrens, cause for concern.  Apart from anything else, the uphold figures for PHSO, particularly regarding parliamentary complaints (less than 5% uphold) are reminiscent of the voting return for a corrupt despot who has total control to manipulate the figures at will.

 Time for a change?

 

 

 

 

 

 

 

 

A report from the genesis of HSIB. Patient centred at heart?

by Richard von Abendorff and Vanessa Wood
 Report and reflections from a meeting with Keith Conradi and Jane Rintoul (seconded from Department of Health to HSIB) comments invited
Summary:

KC and JR said are dedicated to going beyond consultation for consultation’s sake and genuinely want to engage with patients and families in the pursuit of their sole agenda which is to bring about learning from events. They are in the process of considering the range of aspects of their organisation structure and methodology, not least the criteria for selecting the 30 cases a year for investigation from those that are submitted by any stakeholders via the upcoming website, and this includes families. They are charged with the task of remaining independent and will establish an advisory board to ensure that this is the case. They are also charged with the enormous task of acting as an exemplar and positively influencing the quality of investigations conducted by other NHS bodies. They feel that currently, the best way to do this is to conduct exemplary high-quality investigations themselves which are noted for their integrity.
They aim to organically test their methodology within a range of settings to ensure that it is fit for purpose across the NHS and will be initiating such investigations on initial cases after their launch in April. KC gave an impression of a real desire to get this right, bringing independent and fresh investigatory knowledge and indeed integrity from the air traffic investigation sector.

We urge everyone to contribute to the blog to feedback on these ideas and what more they believe needs to be done to give HSIB the best chance to actually address the serious pressures they will face in the restricted context they have been placed.

We urge HSIB to respond explicitly, transparently and fully to these issues as soon as possible to ensure serious failings that many of us have endured, some of which underpin the comments here, can be a force for learning and real change starting with HSIB.
 
 
Fuller notes of discussion and points raised:
Introduction:
The author (RvA) was invited to meet KC and JR and went together with Vanessa Wood (who has been on a similar, very recent journey to the author via the Hospital Complaint &  Harm Investigation system and PHSO). The purpose was to communicate the essence of their personal stories, the essence of the blogs demands and feedback to it from others and to gain information as to what HSIB was doing. We wanted a recording, to allow fuller notes, but KC felt he could speak more freely and openly at this stage without the use of that facility. These notes are what result and hopefully will stimulate more debate on this blog.  Please leave your comments below. 
 
Brief update:

The big message was there was to be an HSIB website launch (an initial version) with lots of information and referrals would be accepted from the end of March. There had been consultation with ‘the big stakeholders’ and unnamed whistleblowers and patients. It later emerged about 10 investigators have been appointed. When we inquired if a patient family advocate was on the panel JR confirmed it was Martin Bromiley. We did clearly express the view that the lack of transparency to date on any of these processes and ‘the usual’ top down appointees by the ‘great and good’ gave no reassurance that a new way of doing things, a new open culture was being modelled by HSIB .
 
 
Blog and feedback to the process:

JR was very clear they found my previous blog useful and wanted to hear as much as possible about feedback from patients, families and whistleblowers to it. We urge everyone who read it and contributed by email, twitter or other to do it via the blog as only some key points were passed on as some will see below. Some people are making very serious contributions via websites and twitter e.g. Whistleblower Dr Minh Alexander and Alexander’s Excavations
 
RvA said that a number of prominent complainant and whistleblower campaigners had been forthright about how they were very sceptical about the whole HSIB project, its progress to date and its potential, given:

1) the lack of any historical review of cases to date so no lessons were learned from past scandalous treatment of patients, families and whistleblowers which meant a number of people could not take part or offer support. As one person said ’we can’t just draw a line in the sand’.
RvA suggested this could be, in fact, must be, made part of the scope of the HSIB who at a very minimum should:
·        comment on the Experts Groups demand for an independent commission (as in the case of KC’s comments of safe space extension beyond HSIB-which he had strongly publically opposed),
·        offer to advise or contribute to this, as it would be HSIB who would need to hear and integrate lessons learnt from this into their  and ultimately others processes
·         Related to this in opening comments RvA has stressed how families should be seen as they were, not only as traumatised victims, complainants, but also experts by experience (of patient needs, care provided and failings in systems) and as  advocates of patients (sometimes in a legal capacity) and crucially as key  witnesses to events. KC said how shocked he was how families evidence was so often ignored compared to how eye witness evidence was used in air accident investigation,  even if the meaning and emotional context to testimony meant it had to be more deeply probed. VM commented how this contrasted with the treatment of health bodies’ evidence, like the legally crafted statements of medical staff and medical notes, not ‘objective’ records of facts, and sometimes ‘doctored’ which were accepted. 
2) Some feedback to the blog urged that enough information has already been submitted to the Expert Group over  18 months ago and needed full consideration by HSIB involving leading campaigners  e.g. based on the Bristol Histopathological Inquiry and  Bristol Paediatric Cardiological  Services risk summit.
3) Concern was also expressed about some ‘national stakeholders’ involvement when they have financial/contractual relations with key bodies that need reform. RvA and VW also expressed their varied personal experiences of bodies like Health Watch, CQC and CCG’s and leading charities in their capacity to respond adequately to major concerns raised by families about services.
4) Some feedback, in essence, suggested it was the corruption of systems and processes and political pressures and not mere incompetence or lack of resources that led to poor investigations. RvA suggests there are many serious pressures and understandable concerns of patients and whistleblowers and this reiterated the need for close scrutiny of how investigations are currently done and why they fail.  Fearless exposition may mean challenging conclusions and actions need to be taken. Learning is the core issue for HSIB
 
 
Human factors and learning:

KC confirmed that Human factors experts are involved because Human factors analysis are so very important at all levels in the system and while the AAIB use of human factors was only very recent they have really realised the value of it in an investigation.
The reason for the investigations is to improve learning- not to do it or act on behalf of staff or families. They will say ‘let’s have a look at these systems’
As they only have a budget for 30 cases, they tried to develop criteria and this has been to think about how these cases can be identified. Drawing on nationwide data systems as they don’t have any data themselves as starting from scratch. They are looking for people to point them in the right direction- they want to open doors to take info in. Criteria include looking at how serious in terms of a nationwide problem any event is and whether there is public confidence in the way it’s being investigated at the moment. They are charged with not doing historical investigations They will make their main focus those which occurred after April as a trigger.
They are looking to use their investigations to set an exemplar- they need to do investigations first to get experience, then check their model is working i.e. does it fit all processes and contexts e.g. mental health and community as well as hospital? They will be refining processes over a period of time, then they can look at how an investigation should be done and we urged the need to relate this to how and why they are done so badly for so many by trusts, PHSO and even NHS appointed Inquiries like in Bristol
In AAIB lawyers tended to circle (from both industry and family) after the report came out- the AAIb didn’t mention names- just lessons learnt without mentioning specifics- you can’t stop operators operating and things will be happening in parallel investigations too, such as inquests.
Who is consulted depends on the evidence and the incident. Need to talk to many including families,  staff and also at times to people who set the regulations- these will be evidence led investigations.
As HSIB has consistently said they will be a learning body it was also suggested by RvA they as a body and participants should be more explicit in spelling out the learning and follow-up actions. Both KC and JR, with very different backgrounds were still to make in their journey setting up HSIB. It may provide vital insights for all other bodies wanting to improve their investigation- for- real- learning capacity. Self reflective learning once again sorely missing in current defensive systems.
 
 Advisory board, patient input and consultation:
 
Board to be set up and appointment process to be published soon- terms of reference in the directions from Hunt are to monitor and check independence. Research of outcomes will also be commissioned they are aware. Being under NHS Improvement for pay and rations they know needs to change and are pressing for greater independence. They want representation from the major players on the advisory board which will be small.
Regarding patient advocates they were aware of the patient public voice group at the NHSI patients safety and want to use that group as a sounding board- JR to run workshops with that group. JR said their appointment had been quite ‘open’. As a recently appointed  PPV himself RvA fedback that while a very useful group of people he did not see its appointment as ‘open’ as JR implied, and as RvA  argued in the blog  care had to be taken to ensure Board appointees and appointment process was much more transparent and open as many campaigners were extremely concerned about the fact that all these bodies and reviews were conducted by those appointed by DoH, NHS England and the ‘safe hands’ they usually work with . Real independent candid and challenging clout was required on any board. An unasked question was what appeal and complaint processes were there and whether PHSO would have a role?!
The recent controversy over the Just Culture task Force referred to in the blog was quoted as an example of a way not to proceed. There was also discussion about the dangers of the usual full-time patient advocates who circulated in the system. The website will have info on the advisory committee investigators biographies etc. when going live.
Stakeholder involvement- how they can continue to be fed into the process themselves. Jane is going to devise some carefully crafted questions as a start which will be put out to us to answer on things they want to elicit views on. RvA emphasised that other key and independent stakeholders like leading family campaigners (e.g. those supporting Bristol families) and independent named whistleblowers (e.g. Dr Alexander) should and must be consulted now. The old adage of fair full consultation at an early stage must not only be done but be seen to be done. The lack of evidence of this was very concerning to us.
But there was explicit recognition for the need for whistleblowers in the process but no further discussion on this.
 
Consultation- who with and what does it look like?
RvA was reassured that in contrast to the poorly received expert group family consultation the same company would not be used this time.  The learning process is on-going.
 Selecting cases – JR is mindful of managing expectations of patients and families as well as all other referrers as they are aware they will have many making referrals.
Road testing methodology- they want to take it and test protocols and will not necessarily pick the first ones. They want to go into all kinds of settings e.g. community, primary care, mental health etc and see if the methodology works.
They invited us to help test the website That will be the route for referral. Jane has been looking at referral vehicles such as PHSO and the forms used. They are developing the forms at the moment. They beg patience while they refine the process.
There will be Patient and family support throughout the investigation process. RVA asked if this would extend to Board level to ensure feedback and support. KC said all the families and next of kin will get a chance to feedback on the report before the publication and right at the start they will meet with families to explain the process and their involvement. KC himself will need technical aspects of the reports explained to him as non-medical so that he can assure himself the report and findings are robust and also thinks families might want this explanation too. He also thinks in complex cases a face to face meeting would be warranted with families or patient. It will important to explain what their part is and how it is different to everyone else that might be involved  i.e. coroner etc.
 
RvA was relieved that families could make referrals to HSIB direct.
Feedback to HSIB:
 
·         the National reporting system essentially totally relies on hospital incident reports, with the inevitable and empirically proven limitations of this
·         how patient reports even when accompanied by excellent witness evidence, protocols  breached, coroners reports, or expert reports are so often totally ignored and the current system of reporting complaints, PHSO and the NRLS portal are not adequate to the task (although a NHS Improvement project may be working on the latter soon)
·         if not taken on by HSIB it should as a triage function to try and offer referral of cases to other bodies(RVA recounted that the only reason he was perhaps at the table of HSIB is that his commissioned expert report of a drug risk was only finally taken seriously by a safety committee of the Royal College of Anaesthetists) approached on his own initiative without help or advice fron any recognised body.  Clear safety issues need more avenues for reporting and consideration-HSIB will only take on a minute fraction.
 
Influence and wider change:
 
As to how to influence investigations in other NHS bodies local and national, by doing a great job themselves that will make the most impact. HSIB come with no agenda but to bring about learning from events KC repeatedly said this as his key message. He said he is not medical or NHS so comes without that baggage which is an advantage.
Furthermore, HSIB can only make recommendations, not able ensure that they are implemented.  They can’t be on bodies such as NICE as they need to be independent of them but they would observe various bodies( e.g. the safe anaesthesia liaison group of the Royal college of anaesthetists). They needed to work smartly- think smartly- trying to be as clever as they can to maximise the impact of their findings and recommendations. VM said psychologists can help with this- asked what type of psychologists they had- they said one involved in change management and another – then Keith said we can tap into the specialisms of stakeholders re particular issues. RVA suggested like PPV sometimes are asked via the safety response panel asked to consult other bodies, e.g. patient facing organisations and their members who were experts by experience.
 
Scope and types of cases:

RvA pushed one personal point how the scope of HSIB should be extended further at this stage even if most cases taken on would be ‘new’.  HSIB had to grasp fully the nature of the current investigation system they were trying to intervene in. Given 99.9 % of families unhappy with complaints, most harm related, would go through the PHSO system, with a new Ombudsman Rob Behrens abut to come in post and draft legislation being discussed surely it was suggested HSIB should devote some resources to examining how the current system worked and why it didn’t for too many. VW and RvA experiences were a testament that well evidenced and externally expertly validated major harm events could be shrugged off with totally inadequate by PHSO investigations.

For balance RvA also added that NHS appointed investigations could show the same massive failing as demonstrated in Bristol last year when in contrast it was PHSO in this case able to show how many serious failings were demonstrated in the tragic death of Sean Turner, covered by Shaun Lintern in HSJ, overturning a NHS England appointed review process.
Based on their own experience, RvA and VW also pushed for one group of patients they believe need to be part of a prioritised group for investigation.  Namely, more complex and multiple morbid hard to assess/treat cases which quickly became ‘palliative cases’ and died, (not treated in hospices or specialist geriatric settings) but whose last days were managed in acute hospital  settings, complex and complicated issues around capacity and consent, lifesaving  versus palliative interventions including concerns about use of opiates, and the role of specialists in acute settings.
Another focus of work suggested by RvA for HSIB was the still remaining poor investigation of never events and other failings raised in national safety alerts, exemplified by the recent nasogastric tube safety alert which had to be targeted at governance and Board level. Incidents like this and how to investigate and learn from them need to be a focus. A recent editorial of BMJ Safety by Trbovich urged for system changes and not simply safety alerts. This would seem a clear example. 
Please feel free to leave your comments.  All will be responded to. 
 

 
 
 
 
 
 
 

Will HSIB be patient centred?

Ideas for a crucial component of an exemplary service

Guest blog by:  Richard von Abendorff, patient safety campaigner and a Patient Public Voice in NHS Improvement

Summary

I call on HSIB to consult openly about its protocols and I invite any patients, families and whistleblowers who have not been approached by HSIB – to contribute ideas with comments to this site. I set out below some general good practice principles for engagement, which I think HSIB should consider.

A: Introduction – despite very challenging circumstances, unity in ultimate goals

The Healthcare Safety Investigation Branch (HSIB) was established in response to a Parliamentary Select Committee report, which criticised the quality and independence of investigations into NHS safety failures. Ref1

There are many challenges it faces and the report of the Expert Advisory Group Ref2 which helped develop the model identified’ tensions’ around issues like safe spaces, and the body’s’ structural independence. I summarise some of the developments as they are known now (15/2/17) in the final section of this report (C) to provide a valuable context (explaining the information I have gleaned, my perspective and also of interest to those new to the whole process which I have been following for over 5 years as I await a proper investigation – in vain it now appears).

But the main focus of this paper is in section B on key constructive steps forward which I believe the HSIB has to take. If taken these will in turn aid resolution of the current continuing scepticism and concerns of many patients and health care staff. I intend this to be just the start of a wider public discussion which the HSIB then engages with.

There without doubt are very different background interests and ongoing pressures on the key parties involved whether they are patients and their families, front-line staff who provide the service, whistle-blowers identifying the service failing or harm event, managers and providers, regulators and external bodies like PHSO (the final point of call for patients who want a proper investigation and remedy and believe they have not received it), and indeed (speaking as a campaigner)many campaigning organisations and individual campaigners

However, some shared core goals are acknowledged by all involved

A) The vital need to improve learning from incidents of harm in the health service and to promote changes to ensure no other patients are harmed in the same way.

B) That this process is made more expert and independent

C) That the process is made more efficient and does not further traumatise parties, as it does for many patients’ families and whistle-blowers

D) That the wishes and insights of patients and their families are listened to and acted upon to ensure all of the above – this external, consumer user voice with no other hats on is essential

Moreover, the HSIB has not only to implement this radical new model of working but do it transparently, because

• It is good practice

• As the expert group report argued it will help establish the essential trust needed, particularly for patients and their advocates

• And if HSIB is to be an exemplary model, this is essential

This challenge for HSIB is increased in the context of growing financial constraints, public scrutiny, while establishing a new service with a relatively small budget, taking on a minute fraction of cases being processed by the system, where many families are awaiting some kind of immediate justice, as well as whistleblowers still awaiting some kind of action which protects them Ref20

Issues of transparency and inclusivity are particularly important given recent concerns about a parallel project to HSIB derived from the Expert Advisory Group– the Just Culture taskforce. Ref3

Too many reviews to date have been, as far as I can see set up and tightly controlled by the very bodies who are having to reform their processes due to decades of failings not going properly addressed. I hope and expect HSIB to be different.

B: How HSIB could model meaningful patient involvement – feedback welcomed

1) In the light of this reality, I propose that HSIB should explicitly have an exemplar protocol on how it will involve patients, families and their advocates.

This will play a crucial role in addressing many of these real live concerns of patients and their advocates, and in providing the optimum conditions for success will contribute towards the development of this vitally important development particularly at these times of financial pressure on the NHS and public scrutiny

In my role as a Public and Patient Voice with NHS Improvement, I have witnessed attempts to co-produce its engagement approach with PPV’s, and I believe If HSIB is to be an exemplar and to lead on culture change nationally, it should operate in a fully open manner, and it should be strongly patient focussed. Fully empowered co-production is essential, but what will that mean? Some points are made here:

2) Best practice would mean it operates in a fully open manner. Moreover it would also require a culture in which HSIB opens itself to candid and constructive challenge from patients and their advocates, and embeds such challenge in all its operations.

3) Best practice is for patients to fully and meaningfully involved at all levels of operations. As a group, led by the safety and health quality expert Don Berwick, noted in the government report ‘A promise to learn, a commitment to act’:

“Patients and their carers should be present, powerful and involved at all levels of healthcare organisations from wards to the boards of Trusts.” Ref 4

In particular, the perspectives of those harmed or who have experienced cover ups is essential in mapping out where improvement is needed in the NHS. The HSIB EAG noted:

“Those involved or harmed in safety incidents – whether patients, relatives or staff – must have the opportunity to be fully involved in investigations into what has happened”

The secondary harm caused through poor and ineffective investigations cover up and on occasion treatment of complainants as vexatious and other forms of victimisation particularly of whistle-blowers must be addressed. Victims of these kinds of events will have insights to ensure policies, procedures and safeguards are designed to prevent of these unacceptable practices

4) Principles of equality and diversity also need to be embedded involving a range of patients, family and advocates reflecting the wider demographic of the population who use the NHS. Ref5

5) True involvement requires true power sharing, through access to information and a genuine stake in making decisions at an early enough stage to influence HSIB’s processes. It should be a two way process, and not just a question of patients and their advocates passively providing feedback to HSIB. Rather, they should have a real opportunity to influence what HSIB does with the information at systemic level. Ref6 and 7

As a recent trial of structured patient involvement demonstrated, a critical part of such initiatives is to ensure effective listening and responsiveness by organisations. Ref8 Without this, there is no improvement in safety.

6) The levels at which stakeholders could play a vital contribution are:

• Designing and deciding HSIB’s scope, processes and protocols

• A voice in deciding the highest priority areas for investigation

• A voice in how individual investigations are conducted

• A voice in the scrutiny and evaluation of HSIB’s work

• Following up on implementation of recommendations, at times with other health service bodies to which HSIB may refer

7) Best practice would also include levelling the playing field through the provision of appropriate information, support and advocacy for patients and families. This should apply during individual investigations and when patients and families take part in HSIB’s overarching governance processes.

8) With regards to HSIB’s scope, a crucial question is how HSIB will relate to the PHSO. This has not been addressed at all by PACAC in an important recent report Ref9, but cannot be avoided: how will HSIB scrutinise PHSO’s much criticised and variable investigation processes? PHSO will remain the final recourse for the vast majority people who wish to complain about poor NHS investigations, many of which are about patient harm events, and it is important that PHSO’s investigations are of a consistent and acceptable standard. HSIB must engage with this core part of the present failing system which gives feedback to so many Trusts about their investigations. Understanding the root system failings of too many PHSO investigations is required to enable adequate evidence based reforms, especially at this time when new legislation is being considered and a new Ombudsman, Rob Behrens starts his post Rref 11

But what then of PHSO’s role in processing complaints about public sector bodies – will complaints about HSIB be investigated by PHSO? Or should there be separate provision for HSIB, to avoid such circularity?

9) This will present challenges for the recruitment and support for patients, families and their advocates. HSIB will have to model this and in so doing recommend how local services and other bodies include and develop this key resource for all services. Tokenism will not do. If patient advocate and whistleblowers voices are wanted , and as I say i believe they are required, they should be publically sought, with clear role descriptions and selection processes with significant input from independent respected individuals and organisations to ensure they are not hand-picked by the ‘great and good’. This is part of the culture that has to change.

In conclusion as Ocloo and Matthews argue we have to move from tokenism to empowerment. For too many exclusion and victimisation has been their only experience of the investigation system. Ref5. HSIB has to openly engage with this set of challenges.

Recognising that I am but one patient advocate voice I urge others to respond with suggestions and comments to this draft manifesto for patient engagement with HSIB. If this is not done now then when? Please send comments to me via this blog. Any help you can lend would be much appreciated and I hope as many comments as possible will be made public as well as the response by HSIB. These processes must be transparent

C:  Background to HSIB as at February 2017: key issues, controversies and tensions-challenges requiring an empowered patient voice

The Healthcare Safety Investigation Branch (HSIB) was established in response to a Parliamentary Select Committee report, which criticised the quality and independence of investigations into NHS safety failures. Ref1 In March 2015, the Public Administration Select Committee (now the Public Administration and Constitutional Affairs Committee) recommended the creation of an independent investigation body. Ref12

The government responded by creating HSIB, but controversially located it within NHS Improvement, and did not fully enact PASC’s recommendations for legislation Ref13,14 Bernard Jenkin the Chair of PASC raised a concern about the lack of immunity for staff giving evidence to HSIB Ref15 The committee also strongly condemned the lack of independence for HSIB.Ref16 Ambiguity about what ‘immunity’ and ‘safe space’ comprise within HSIB investigations has been the subject of much controversy and is not yet fully resolved. Ref17

A Chief Investigator, Keith Conradi – Chief Inspector of the Air Accident Investigations Branch 2010 to 2016 – was appointed and took up post in September 2016. Ref18

Keith is reported to be seeking statutory independence and additional powers for HSIB.Ref19

Little else has been made public to date. HSIB has a budget of £3.6m. It is to undertake 30 investigations a year, and investigations may feature more multiple cases and locations. It is expected to be an exemplar and to support improvement in investigation quality throughout the rest of the NHS. Keith has now said that HSIB is intended to be operational by April 2017. Ref19

According to the Health Service Journal, Keith has appointed a physician to head HSIB’s intelligence unit, which will identify potential matters for investigation. Keith has also indicated that there will be “no immunity”, and that HSIB will report “wrong doing, an unlawful act or huge significant harm” to the “appropriate authority”. Ref19 However, Keith has not fully assuaged concerns about the potential misuse of ‘safe space’ to conceal the full facts about failures.

He has indicated that information provided to patients and families will be filtered and that not all original documents may be disclosed. Ref19 He has however, rejected the government’s proposal that safe space should be extended to all NHS investigations, the great majority of which will not take place under HSIB’s auspices.

Keith commented to the Health Service Journal “We are not doing the investigations purely to get information for the families”. A question arises of how sensitive HSIB will be to the perspective of patients and families, and their advocates.

HSIB has not answered questions to date how explicitly it would involve patients, families and whistleblowers in drafting its protocols. Issues of transparency and inclusivity are important. This is especially so given recent concerns about a parallel project derived from the Expert Advisory Group (EAG) which helped to develop HSIB 10 – the Just Culture taskforce. Ref3

This is why this paper has been written. To start a transparent discussion how patients, families and whistleblowers will be engaged with. I eagerly await public feedback to this paper and transparent engagement with HSIB

ACKNOWLEDGEMENTS

A few patient safety campaigners I will not name now have inspired me through action and words to spell out some of the core ideas in this paper and one in particular has been essential to help articulate them. Many many thanks.

REFERENCES

1 Investigating clinical incidents in the NHS. Report by Public Administration Select Committee 27 March 2015

https://www.publications.parliament.uk/pa/cm201415/cmselect/cmpubadm/886/886.pdf

2 Report of the Expert Advisory Group, Healthcare Safety Investigation Branch May 2016

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/522785/hsibreport.pdf

3 Call for Just Culture task force core members to stand down, Minh Alexander 25 January 2017

https://minhalexander.com/2017/01/25/call-for-just-culture-taskforce-core-members-to-step-down/

4 A promise to learn, a commitment to act. Government response to the Mid Staffs Public Inquiry. Don Berwick et al, August 2013

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/226703/Berwick_Report.pdf

5 From tokenism to empowerment: progressing patient and public involvement in healthcare improvement Josephine Ocloo & Rachel Matthews http://qualitysafety.bmj.com/content/qhc/early/2016/03/18/bmjqs-2015-004839.full.pdf

6 Patient Engagement in Patient Safety. A Framework for the NHS. Sign up to Safety. May 2016

https://www.england.nhs.uk/signuptosafety/wp-content/uploads/sites/16/2016/05/pe-ps-framwrk-apr-16.pdf

7 Safety is personal. Partnering with patients and families for the safest care, Lucian Leape Institute 2014

http://c.ymcdn.com/sites/www.npsf.org/resource/resmgr/LLI/Safety_Is_Personal.pdf

8 Can patient involvement improve patient safety? A cluster randomised control trial of the Patient Reporting and Action for a Safe Environment (PRASE) intervention. BMJ Quality and Safety, Rebecca Lawton et al, 3 February 2017

http://qualitysafety.bmj.com/content/qhc/early/2017/02/03/bmjqs-2016-005570.full.pdf

Evaluating the PRASE patient safety intervention – a multi-centre, cluster trial with a qualitative process evaluation: a study protocol for a randomised controlled trial. Laura Sheard et al. Trials 2014, 15:420

http://www.trialsjournal.com/content/15/1/420

9 Will the NHS never learn? https://www.publications.parliament.uk/pa/cm201617/cmselect/cmpubadm/743/743.pdf

10 https://phsothetruestory.com/2016/12/23/why-finding-maladministration-is-a-flawed-model-richard-von-abendorff-patient-safety-ambassador/

11 Rob Behrens approved as Parliamentary and Health Service Ombudsman https://www.parliament.uk/business/committees/committees-a-z/commons-select/public-administration-and-constitutional-affairs-committee/news-parliament-2015/appointment-of-parliamentary-and-health-service-ombudsman-report-published-16-17/

New Draft PSO Bill https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/575921/draft_public_service_ombudsman_bill_web_version_december_2016.pdf

Fatal extraction: New Health Service Watchdog has all teeth removed.https://phsothetruestory.com/2017/01/16/fatal-extraction-new-health-service-watchdog-has-all-teeth-removed/

12 Investigating clinical incidents in the NHS. Report by Public Administration Select Committee 27 March 2015

“Our main recommendation is that the Secretary of State for Health should bring forward proposals, and eventually legislation, to establish a national independent patient safety investigation body. The cost of this body will be relatively small, compared to the costs and liabilities arising from clinical incidents at present. This will involve 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 will have to be clear criteria for deciding which incidents it should investigate, to avoid being overwhelmed by the large number that require routine investigation across the NHS”

13 Learning not blaming. Government response to PASC. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/445640/Learning_not_blaming_acc.pdf July 2015

14 Government response to PACAC’s follow up inquiry on the quality of NHS incident investigations. 18 October 2016 https://www.publications.parliament.uk/pa/cm201617/cmselect/cmpubadm/742/742.pdf

15 Hansard debate on NHS reform 16 July 2015

“May I pick up on the Secretary of State’s reluctance to provide special legislation for the immunity of those giving evidence to the new patient investigation body? Will he keep an open mind on the subject? If he wants that body to be truly independent and to have a special status, he should remember that the marine accident investigation branch and the air accidents investigation branch have specific legislation to provide for such immunity. Public interest disclosure protection must not be challenged by freedom of information requests, given that freedom of information has been extended into areas where we never imagined it would go. We have to be specific in legislation that that cannot happen in this instance.”
https://www.publications.parliament.uk/pa/cm201516/cmhansrd/cm150716/debtext/150716-0002.htm

16 Statement by PACAC 2 June 2016

““We have consistently called for primary legislation to make HSIB fully independent, and to create a credible ‘safe space’ which will enable the NHS to properly learn from past mistakes. Since we approved this report, it is increasingly evident that the Government has accepted this recommendation. The Secretary of State’s decision to set HSIB up as an NHS quango as a permanent response to our recommendations was both disappointing and would be unacceptable, but the prospect of a secure legislative base will enable HSIB emulate the successful air, marine and rail investigation branches.

Were the present non-statutory arrangement to be regarded as permanent it would be an intolerable compromise, disregarding consensus between healthcare experts and Parliament, and would put political dogma against forming new public bodies before patient safety. We therefore look forward to the draft legislation emerging.”

https://www.parliament.uk/business/committees/committees-a-z/commons-select/public-administration-and-constitutional-affairs-committee/news-parliament-2015/quality-of-nhs-complaints-report-published-16-17/

17 The Healthcare Safety Investigation Branch. Glass half full or half empty. AvMA June 2016https://www.avma.org.uk/policy-campaigns/the-avma-blog/the-healthcare-safety-investigation-branch-glass-half-full-or-half-empty/

18 Keith Conradi’s CV https://www.publications.parliament.uk/pa/cm201617/cmselect/cmpubadm/96/9611.htm#_idTextAnchor028

19 NHS has ‘nothing to fear’ from new investigation body, says chief. Shaun Lintern Health Service Journal 5 January 2017

““The chief investigator will have discretion over what information is revealed but he said: “I think this is one area where I would rather not have discretion. I think ideally in terms of information that is taken under safe space principles we should have an obligation to protect those statements, but the relevant information – and the key word is relevant – is in the report or attached to the report somehow. He added: “We have to remember why we are doing investigations. We are not doing the investigations purely to get information for the families. We are doing it to improve learning and safety; we are not doing it on behalf of the staff, family or any particular body. If safety is improved because somebody opens up to us surely that is the most important thing we can do. If there is relevant information for the family it will be included in the report.”

https://www.hsj.co.uk/topics/policy-and-regulation/nhs-has-nothing-to-fear-from-new-investigation-body-says-chief/7014490.article

20 Whistleblowers need more than hand-wringing headlines, Sir Robert

https://minhalexander.com/2017/02/10/whistleblowers-need-more-than-hand-wringing-headlines-sir-robert/

The mystery of the disappearing review requests: PHSO in action

On 13th December Dame Julie Mellor  informed Mr. Ronnie Cowan at the PACAC scrutiny meeting that,

“…as a result of people getting better explanations, [from the award winning customer care team] fewer people asked us for a review, it was 217 and in 14 cases we have reopened or launched a fresh investigation.  That gives you a sense of the scale and those 14 think it is perfectly proper for it to be done within the organisation.”  Q55 public-administration-and-constitutional-affairs-committee/phso-annual-review-201617/oral/44495.pdf

Those 14 may think it perfectly proper to have in-house review, though I doubt that they were asked, but the many individuals who were denied a review may think that an element of bias entered the process.  After all, marking your own homework has never been the most robust means of ensuring an impartial decision.

14 upholds from 217 reviews gives a miserly 6.4% uphold rate, but in fact it is a lot worse than that as many more review requests just disappeared from the figures discussed by Dame Julie Mellor and were not listed in the Annual Report.  The truth is that  1,969 people requested a review  last year which is 164 a month or 37 per week, but the majority of these failed to meet the criteria for review.  From the total number of review requests, the uphold of just 14 now gives a 0.7% chance of overturning a decision at review.  Hardly worth the effort of going through all the paperwork, providing again the evidence which had been ignored and completing a detailed, point by point response.

Given that one of the criteria for review is so common as to be virtually universal it is surprising to find that 89% of the review requests failed to make the final cut namely;

We overlooked or misunderstood parts of the complaint or did not take account of the relevant information, which could change our decision.

And as for making a service complaint about PHSO themselves clearly the award winning Customer Care Team have those totally under control as you can see in the table below.

The fortunate 0.7 % may consider that allowing PHSO to review their own complaint handling is ‘perfectly proper’ but the other 99.3% may be of a different opinion.

upheld-reviews

Ombudsman to public bodies: “Please do as I say, pretty please, I’ll be your friend”.

An allegory for our times: 

Some parents, lets us call them Mr and Mrs Smith, take their parental responsibility very seriously and decide to hire a professional Nanny to ensure that their children obey the rules and go to bed on time.  They pay top money to ensure they get a Nanny who can deliver.  When the Nanny arrives at the house the parents go through the rules, telling the Nanny what the children can and can’t do.  The Nanny is delighted that these boundaries have been so well considered and documented and looks forward to a trouble free stay with the family.  Then the parents tell the Nanny that although the children are required to follow all the rules and go to bed on time the Nanny can not instruct them to do so; she can only advise. The Nanny has no power to enforce any of the rules and cannot go into the children’s rooms to check that they have followed any of her suggestions.  However, the parents make it clear that they expect the Nanny to deliver good compliance to the rules and the Nanny will have to submit a report detailing how many suggestions she has given, how long it took the children to respond and how many were followed through.

Then with a smile, they call the children in.  They introduce the new Nanny and tell the children that she will ensure that the rules are followed at all times.  Bending down to make sure the children have full understanding, they tell them that they are only required to ‘have regard’ to what the Nanny says.  They are not, at any time, under any obligation to carry out the Nanny’s requests.  Then the parents sweep out for the evening safe in the knowledge that all will be well.

Having no power to give direct instruction or enforce good behaviour,  yet under an obligation to fulfil her contract, the Nanny is forced to negotiate with the children a bed time which is acceptable to them so that she can report back to the parents that they went to bed on time.  Equally, all the stated rules provided by the parents become negotiable with the Nanny turning a blind eye as often as possible so as not to report back breaches in behaviour.  Where there is an obvious flouting of the rules the Nanny records this as a ‘shortcoming’  and not a deliberate breach giving the children the benefit of the doubt due to their age or disposition.

In effect, the children know they are not being monitored at all.  They act however they like telling the Nanny a tall story if they get caught out.  The Nanny willingly accepts their version of events in order to keep her record clean.  The parents can report to all their friends that their children are supervised by a top Nanny under strict guidelines.  Mr and Mrs Smith congratulate themselves on a job well done and use their weekly scrutiny of the Nanny’s report as evidence that there is robust accountability of their children’s actions and therefore nothing to worry about.

This sounds like a crazy model to apply if you want X to monitor the behaviour of Y with any measure of authority or control.  Yet this is the model to be applied to the new Public Service Ombudsman.  

14 (8) designated authority must have regard to any recommendations contained in a statement under subsection (1)(c) in respect of the authority (but is not required by virtue of anything in this Act to give effect to any such recommendations). (p16)  draft_public_service_ombudsman_bill_2016

Without the authority to ensure any recommendations are followed, the Ombudsman must negotiate an acceptable agreement with the public body in order to report back to parliament that they have high compliance ratings.  Then the government can state with confidence that the public are well protected by an effective independent and impartial Ombudsman so everyone can sleep well in their beds.

What could possibly go wrong?

Well, new ‘Nanny’ Rob Behrens due to take over from Dame Julie Mellor on April 1st has spotted a potential weakness in the plan and made his views on compliance clear in his pre-appointment interview with PACAC.

“…if you are going to make a recommendation in a report you have to make sure that is addressed and if it’s not addressed you want to know why and you want to give the oxygen of publicity to the fact that it hasn’t been

PACAC pre-appointment meeting (10.28)

The oxygen of publicity was probably more effective when rating University compliance in his role in the Office of Indepent Adjudicator (OIA) for higher education.  Students can choose which University to apply to, but on the whole users of the NHS and other public services have no choice but to use the services provided.  In further talk of ‘leading from the front’ he gives clear indication that naming and shaming would be the order of the day for any authority with the temerity to ignore the Ombudsman.  He obviously hasn’t read the small print. Despite threatening to name and shame government ministers who ultimately control the delivery of their departments, he still got the job.  I’m sure they will soon put him straight on who is really in control.

Meanwhile, Keith Conradi, the new Chief Investigator at the Healthcare Safety Investigation Branch (HSIB) has also realised that the odds are stacked against him.  Reported in the Health Service Journal on 5th January 2017, Mr Conradi makes a plea for further powers regarding compliance.

  • Health Service Journal 5th January 2017 
  • HSIB chief investigator says organisation needs statutory independence and powers
  • Keith Conradi reveals plan for intelligence unit to highlight issues for investigation
  • Healthcare Safety Investigation Branch could consider multiple incidents in several locations for one investigation
  • Emphasised “safe space” protection was not immunity for serious wrongdoing

The head of the NHS’s new patient safety watchdog has said it needs statutory independence and extra powers to demand that NHS organisations respond to its warnings.

Keith Conradi, chief investigator at the Healthcare Safety Investigation Branch, told HSJ he was lobbying the health secretary for additional powers, including evidence gathering and requiring trusts, regulators and the Department of Health to respond to its safety recommendations.

Mr Conradi, who was head of the Air Accident Investigations Branch for 14 years, said: “I am lobbying for legislation that does require a response [to safety recommendations]. This is what happens in aviation – there is a requirement to respond. That doesn’t say you have to comply but if you decide not to you have to give a reason. If you are intending to accept the recommendation you have to say how you intend to work your way through it.

“I believe that without having those powers in the background, people will take these [recommendations] away and no difference will be made.”

Without those powers  – no difference will be made.

So why is it that Mr and Mrs Smith can’t see that a Nanny with no powers of coercion will fail to control unruly children?  Everyone else can see it, including the children.  Why hire the best Nanny in the field, pay them a six figure salary from public funds then deny them the powers to be effective.  What could possibly be the point of that?

 

 

 

 

Fatal extraction: New Health Service Watchdog has all teeth removed.

After a prolonged wait, the draft legislation for the new Public Service Ombudsman has been released by the Cabinet Office.

They have taken their time to slowly extract any teeth the already deficient Ombudsman had and present a proposal for a combined Health, Parliamentary and Local Government Ombudsman that will have fewer powers than any other UK Ombudsman Service.  Most significant is the fact that public bodies will only be required to ‘take account’ of investigation findings and have no obligation to take any action.   All the old loopholes have been retained such as finding harm caused by maladministration, total discretion of the Ombudsman to act as she sees fit and no external audit of the investigation process.  An Ombudsman better to serve the public?  See the facts for yourself.

Review of the draft legislation for the proposed

Public Service Ombudsman 

By Della Reynolds – phsothefacts

January 2017

 

draft_public_service_ombudsman_bill_Dec_2016

(page numbers are those given at the bottom of each page) 

The establishment of a new Public Service Ombudsman (PSO) fifty years after the original legislation provides government with a rare opportunity to ‘better serve the public’ as heralded by the preliminary Robert Gordon review.  Unfortunately, after the long wait for this proposal it is seriously deficient in terms of reform and appears to be no more than a money saving merger between PHSO and LGO which will result in a single ombudsman appointment and a reduction in staff.

Members of PACAC will be only too aware of the anguish caused to members of the public from poor investigation processes and the frustration of trying to hold the current ombudsman to account.  All the deficiencies of the previous legislation, which have facilitated this state of affairs, have been transferred into the draft legislation for PSO.  On this basis, the current proposal will do nothing to improve service delivery or public satisfaction and requires significant amendment.

Chris Skidmore, Minister for the Constitution suggests in the foreword that the proposals will deliver an, “independent and strong ombudsman who can launch an impartial investigation.”  However, an analysis of the draft legislation does not support this statement.

Harm caused by maladministration:

 

1 Overview of Act

  1. The purpose of an investigation by the Ombudsman is to establish—
    1. whether the matter complained of involved maladministration or a failure on the part of the authority to which the complaint relates, and
    1. if it did, whether the person by or on behalf of whom the complaint was made suffered injustice or hardship as a result of the maladministration or failure. (p7)

 

An investigation based on harm caused by maladministration is a flawed model and should not have been transferred wholesale without consideration of how this requirement has consistently failed the public.

 

  • There is no definition of maladministration so the public are unable to assess the validity of their case against given examples.
  • Although ‘maladministration’ cannot be defined this woolly concept is used to determine uphold. Without uphold no learning takes place.
  • There is no consistency as ‘maladministration’ is decided on a case by case basis.
  • Breaches in statutory and non-statutory policies are not considered to be automatic maladministration. These policies should be mandatory as they exist to ensure safety and good service delivery to the public.
  • The connection between maladministration and harm is a subjective one and it is possible for the ombudsman to determine, with an insight beyond human powers, that the harm would have been the same in any event.
  • Finding maladministration does nothing to check systems and processes, which may be flawed and dangerous.

 

Discretion:

 

The Board of the Public Service Ombudsman

 

  1. The functions referred to in subsection (3) include, in particular—
    1. those involving the exercise by the Ombudsman of a discretion relating

to any of the following— 30

  1. whether to investigate a complaint;
  2. how to carry out an investigation;
  • how and when to conclude an investigation;
  1. what action to take following an investigation, and (p8)

 

  • The discretion of the ombudsman has not been balanced with a requirement to apply the most appropriate statutory or non-statutory regulations to an investigation. The ombudsman can apply whichever regulations she sees fit.
  • There is no obligation to ensure that the key concerns of the complainant are addressed in the report and not scoped out. The ombudsman has total discretion on which aspects to investigate. In 2015/16 only 38% of complainants felt that the ombudsman had dealt with the most important aspects of their complaint. (p42) 2015-16-Annual-Complainant-Feedback-Report

 

  • There is no obligation to ensure that ombudsman decisions are evidenced based and that public body assurances are substantiated or rejected. In 2015/16 only 34% of complainants reported that the final report provided evidence to support the decisions made. (p42) 2015-16-Annual-Complainant-Feedback-Report
  • Total discretion means that the ombudsman cannot be held to account under judicial review as she has been given the legal right to ‘act as she sees fit’. Unaccountable bodies are able to act with impunity.

The investigation process: 

4       Power to investigate complaints

(2.c) it is made to the Ombudsman before the end of the 12-month period beginning with the day on which the affected person first became aware of the matter alleged in the complaint. (p9)

·      This is a serious loophole which needs to be closed.  People are often not aware of ‘the day’ on which they first became aware.  Sometimes it can come after a period of reflection or as further information comes to light.  This clause has been used to the detriment of the public when the ombudsman refuses to accept the time of first knowledge given by the complainant.  For clarity it should be within 12 months of receiving the final closure letter from the public body as this does have a specific date.
·      In relation to time it should also be the case that the public can approach the Ombudsman earlier in the process to request intervention and Alternative Dispute Resolution (ADR) options.  The learning is more effective if it occurs closer to the time of the incident.  In Scotland it is possible to approach the Ombudsman after 20 days.
  • (5) The Ombudsman may begin or continue an investigation into a complaint even if the complaint is withdrawn. (p9)

 

  • It should be for the complainant to decide if they wish the investigation to continue. When people lose confidence in the Ombudsman service and wish to take court action they should not also have to dispute a flawed ombudsman report where they have not agreed the findings.

 

7 (4)     The Ombudsman may investigate a complaint only if satisfied that—

(4.a) the complaint has been brought to the attention of the designated authority to which it relates by or on behalf of the affected person, and

(4.b)the designated authority has been given a reasonable opportunity to investigate and respond to it. (p11)

 

  • ‘Reasonable opportunity’ should be time bound to prevent authorities from delaying the process past the 12 month time limit or beyond opportunity for court action.

 

9 (1) The Ombudsman may not question the merits of a decision taken without maladministration by a designated authority in the exercise of a discretion. (p12)

 

  • Many discretionary decisions lead to action or inaction which causes untold harm. What mechanism is there to evaluate discretionary decisions?  When first established, private ombudsman services such as the Pensions Ombudsman and Insurance Ombudsman had powers to examine discretionary decisions which made these bodies powerful champions for the consumer.

 

10 (4) The investigation must be carried out in private. (p12)

 

Evidence in proceedings  –   Schedule 5

 

7 A person may not be required to give evidence in any proceedings (other than proceedings mentioned in paragraph 3(1)(h) or proceedings under section 12) of relevant information obtained by that person as mentioned in paragraph 1(a) or (b).  (p46)

  • The ‘privacy’ rule has been used to deny the complainant access to information during the investigation process before a decision is made.  The public have been unable to put the record straight until it is too late.

 

  • The privacy rule, coupled with the evidence in proceedings rule has been used by the Metropolitan Police to deny investigation into Misconduct in Public Office offences referred to them by members of the public, effectively putting ombudsman staff, who are Crown Servants, above the law. This is in direction opposition to the rule of law which states that no-one is above the law.

 

11 (7)  person may not be required or authorised by virtue of this section to provide information or to answer any question relating to proceedings of the Cabinet or of any Cabinet committee. (p13)

 

  • The Cabinet Office provide themselves with immunity to investigation by the supposedly independent Ombudsman!

 

  • (8) designated authority must have regard to any recommendations contained in a statement under subsection (1)(c) in respect of the authority (but is not required by virtue of anything in this Act to give effect to any such recommendations). (p16)

 

  • To ‘have regard’ is permission to ignore and the whole investigation process will have been a futile waste of money. There must be some compulsion on public bodies to comply with the findings or to put in writing to the select committee the reasons for decline. This clause makes the ombudsman totally powerless if faced with non-compliance.  The Welsh Ombudsman by contrast can issue a certificate to the High Court for wilful disregard of his report without lawful excuse.  (p11)  Public Services Ombudsman (Wales) 2005

 

Persons within scope of Ombudsman’s jurisdiction

 

  • (1.c) person (other than a local authority) who exercises public functions, or provides services in the exercise of such functions, in relation to a particular local area; (p20)

 

  • This is ambiguous and it needs to be made clear that all those delivering public services using taxpayer funds are within the jurisdiction of the ombudsman. Currently, it has been determined by PHSO that NHS staff, working within an NHS facility and being paid for by the state are working in a ‘private’ capacity and therefore cannot be investigated.  This loophole must be closed, particularly in view of the increasing privatisation of public services.

The Ombudsman as complaint Champion:

  • (1) The Ombudsman must provide information, advice and training to designated authorities with a view to promoting best practice in the handling by such authorities of relevant complaints. (p23)
  • Due to its own inadequate investigation procedures the Ombudsman is currently not in any position to give advice on promoting best practice complaint handling and this may be better delivered by the new Healthcare Safety Investigation Branch (HSIB) when it becomes active later this year.
  • The Scottish Ombudsman has been given powers to enforce good complaint handling and operate as a Complaint Standard Authority in their 2010 legislation. Acting as a ‘Champion’ will not give PSO any powers of enforcement.
  • Government needs to unify the Health Service so that good practice is automatically shared and not allow each area to apply its own complaint handling procedures, which is currently the case.
  • Data is needed in a standardised and accessible format so that the authorities and the public have access to real time information on complaint handling. A data revolution was promised by Oliver Letwin whereby all authorities would be required to put complaint handling data into the public domain.  This important aspect seems to be missing from the new proposals.  On the subject of data, the current policy of the ombudsman is to destroy evidence 12 months after closure of the case.  This short retention span makes it impossible to spot recurring patterns or failure hot spots.  In order to gain an overview this policy should at least be brought in line with statutory archive procedures which are six years retention.  This important issue must be addressed in the legislation which has so far remained silent on the matter.

 

Accountability of the ombudsman:

 

The ombudsman is required to lay an annual report before the House and essentially a review of this report is both the start and end of scrutiny by parliament.  The proposal states the following;

Schedule 1

6  (3) The information referred to in sub-paragraph (2)(a) may in particular include information about—

  1. how many complaints were received by the Ombudsman during the financial year,
  2. how many of those complaints were properly made or referred to the Ombudsman (see sections 4 and 18),
  3. how many of the complaints mentioned in paragraph (b) were investigated by the Ombudsman during the financial year,
  4. how designated authorities have responded to reports made under section 14(1)(c) in respect of them, and 20
  5. any other matters the Ombudsman considers appropriate. (p30)

 

  • Absent from this list is a record of the total number of complaints made about the Ombudsman herself. The total number of review requests, how many were provided with review and how many were upheld.  The number of complaints fully upheld as a separate distinction to those partly upheld. Also clear guidance as to the difference between ‘enquiries’ received and ‘complaints’ received.  The continual blurring of these distinctions makes it difficult to determine the percentage of actual complaints investigated.

 

  • All complaints about the Ombudsman and reviews are handled internally and there is no provision within these proposals to provide proper independent scrutiny of the investigation process. This again is a significant oversight, if indeed the intention is to ‘better serve the public’.

 

There is a proposal to set up a ‘modern governance structure’ to give greater accountability to the ombudsman service.  The key element in creating a board to hold the ombudsman to account is the selection of the chair and board members.

Membership –   Schedule 2

  1. (1) The Board is to consist of—
    1. persons who are not employees of the Board (“non-executive members”) (see Part 2),
    2. the Ombudsman (see paragraph 10), and
    3. persons who are employees of the Board (“employee members”) (see paragraphs 11 to 13).
  1. The number of members of the Board is to be determined by the person appointed under paragraph 2(2) to chair the Board (“the chair”) with the agreement of the Public Accounts Commission.
  2. The majority of members of the Board must be non-executive members.
  3. The following are executive members of the Board—
    1. the Ombudsman;
    2. the chief executive (if different from the Ombudsman);
    3. the employee members. (p31)

 

Her Majesty via the Public Accounts Commission determines the selection of the non-executive chair.  The chair then ‘recommends’ individuals to the Commission for places on the board.  The CEO of the board is automatically the Ombudsman who is also the Accounting Officer.

 

  • This looks very much like a closed shop. One safe pair of hands recommending another.  Boards such as this have consistently failed to hold bodies to account and instead become the first line of defence, using their position to limit reputational damage.

 

  • There can be no public confidence that such a board would make any significant difference to the accountability of the ombudsman, despite the following statement regarding monitoring.

 

Monitoring service provided by Ombudsman Schedule 2  (23)

(1) The Board must monitor the carrying out of the Ombudsman’s functions under this Act, with particular reference to the quality and efficiency of the service provided by the Ombudsman and the desirability of securing improvements in that service.

  • The Board must perform the duty under sub-paragraph (1) in accordance with a scheme prepared by the Board.
  • The Board—
    1. must submit a scheme under sub-paragraph (2) to the Public Accounts Commission, and
    2. must revise the scheme in accordance with any representations made by the Commission.

(4)The Board must inform the Commission about any findings the Board makes in performing its duty under sub-paragraph (1).

(5)Nothing in this paragraph entitles the Commission to question the merits of action taken by the Ombudsman in a particular case. (p37)

 

The board is required to monitor the quality and efficiency of the service provided, but it is unclear whether they will have the collective expertise to do so.  The board will have power over staff and resources but what power does the board have over poor quality of service, if they can only report their findings to a Committee who are legislatively unable to take any action?    If there is serious intent to use the board to hold the Ombudsman to account then this proposal falls short of the mark.  The public would have more confidence in a board which consisted of front-line staff, union representatives, interested charities such as AvMA and the Patients Association and service users.  This would be more in line with the, “vibrant democratic society where public services work for everyone” promise made by Chris Skidmore in the opening to the draft legislation. The board will be unable to hold anyone to account for poor service delivery without the parliamentary committee having the power to take action following receipt of unfavourable reports.

 

Disclosure of information:  (aka The Secrecy Schedule)

 

Schedule 5 allows the Ombudsman and Ministers to make decisions concerning the release of information.  It is difficult to see how any learning could be the result of processes which so completely lack transparency or any reference to duty of candour, as those outlined here.  The ability to maintain secrecy where information is regarded as ‘privileged’ will make it impossible to hold individuals to account, or deliver remedy, which is counter to the core ethos of the ombudsman service.

Privileged information – Schedule 5

 

  1. Where the Ombudsman obtains relevant information from a designated

authority or other person by virtue of section 11(6) (which prevents a designated authority from relying on privilege in relation to the production of documents or the giving of evidence), the Ombudsman must not disclose—

    1. the fact that the Ombudsman has obtained such information, or
    2. the information itself,

unless the designated authority consents to the disclosure.

 

Disclosures contrary to public interest

 

  1. (1) A Minister of the Crown may give notice to the Ombudsman that, in the Minister’s opinion, the disclosure of information specified in the notice would be contrary to the public interest.

(2) Where a notice is given under sub-paragraph (1), nothing in this Act is to be read as authorising or requiring the Ombudsman or any other person to disclose the information—

    1. to any person, or
    2. for any purpose.
  • The Ombudsman may apply to the High Court (or, in Scotland, the Court of Session) for permission to ignore a notice given under sub-paragraph (1).

Evidence in proceedings

 

  1. A person may not be required to give evidence in any proceedings (other than proceedings mentioned in paragraph 3(1)(h) or proceedings under

section 12) of relevant information obtained by that person as mentioned in paragraph 1(a) or (b).

Restriction on further disclosure

  1. A person to whom relevant information is disclosed by virtue of paragraph 3(2)
    1. must not use the information except for the purpose for which it was disclosed, and
    2. must not disclose the information to any other person unless the designated authority to which the information relates consents to the disclosure.  (p46)

 

Absent from the proposals:

 

  • Any reference to staff training needs and levels of expertise required to manage rising numbers of complex medical complaints.

 

  • Any suggestion that Health Service Complaints should be allocated their own service within the umbrella of PSO with a designated lead Ombudsman equipped with suitable expertise.

 

  • Mention of Alternative Dispute Resolution (ADR) models and how to incorporate these into the new PSO service.  Need for standardisation of ADR providers. Specific training required for Ombudsman staff in selecting or delivering mediation.

 

  • Increasing privatisation of public services and the issue of access to information from bodies not covered by the Data Protection Act.

 

  • A proposal to make it a requirement for public bodies to disprove allegations rather than place the burden of proof on the individual citizen with limited access to the evidence. (Presumption of honesty)
  • Any duty to identify and notify patterns of failure (presently hampered by shortage of data and short Ombudsman retention policy).
  • Power/duty to initiate or direct others such as CQC to investigate systemic failures.

Currently, this proposed legislation will deliver an ombudsman who has such limited powers and resources that it would be better to scrap the service altogether than give false hope to the public that they will be able to depend on a strong, independent ombudsman able to deliver an impartial investigation.  The ombudsman service will be restricted in what it can investigate, how it can investigate, who it can report to and most importantly will have no power to deliver change.  It will have to negotiate and compromise with public bodies in order to claim any justification for its existence.  A far cry from the recent promise of Theresa May to tackle the burning injustices that undermine the solidarity of our society. the-shared-society-article-by-theresa-may

 

This review of the draft legislation for the new Public Service Ombudsman has been undertaken by members of the public; previous service users who have all been failed by ombudsman service.  We are not legally trained and may well have further comment to make once the full legal implications become apparent at scrutiny.  We are able to offer unique insight into the failures of the previous legislation and consequently wish to take an active part in the scrutiny process to ensure that the new Public Service Ombudsman really does ‘better serve the public’.