The Health Service Ombudsman is staffed by laypeople and has repeatedly shown itself to be incapable of thorough and impartial investigation of NHS complaints.  It is restricted by its legislation to respond only to complaint and there is significant difference between maladministration and clinical accident.   This body was never designed to undertake the volume and complexity of NHS complaints currently queueing up within the system.

Time for a new, independent investigative body; staffed by clinicians and open to complainants, whistleblowers and NHS staff.  Read this important blog from James Titcombe and if you are an interested party then please submit your evidence to the PASC inquiry by 16th January 2015.

Complaints and Clinical Failure – 17th December 2014  by James Titcombe

I want to start this blog with a simple statement.

There is a clear distinction between a serious incident (the term ‘incident’ could often be replaced with ‘accident’ in a healthcare context) and a complaint.

Let me give you an example. If you bought a washing machine from your local electrical retailer and when you got it home and installed it, you found it didn’t work, you would have a right to take it back. If you did this and found the chap in the store was rude and dismissive and told you to take a hike, making a formal complaint would seem like a reasonable thing to do. You would expect the store’s management to follow a proper process of investigating your complaint, to establish the facts and then to take action to put things right and learn from the experience.

However, if when you were visiting the store to purchase your washing machine, a heavy piece of machinery fell on you from a great height, leaving you severely and permanently injured, you would not expect to have to write to the store to make a formal complaint in order for the incident to be investigated. In fact, you wouldn’t have to. Under health and safety legislation, the matter would have been reported to the Health and Safety Executive (HSE) who would almost certainly carry out an independent investigation. Further to this, if that investigation found that the management of the store had failed to take ‘reasonably practicable’ steps to ensure people shopping weren’t exposed to the risk of heavy pieces of machinery falling on them, the chances are that the management of the store would find themselves facing prosecution.

This is an effective framework for keeping people safe in work environments. Since the Health and Safety at Work Act (HSWA) was introduced in 1974, workplace related deaths in the UK have fallen annually from 651 to 85, an 87% reduction.

The system is effective, largely down to the way the HSE implement the 1974 Act. When looking at work place accidents that cause harm, they look at the systems and processes in place to manage health and safety risks. In other words, the HSE don’t look to prosecute individuals who make genuine mistakes, but they look to see how risks are managed and controlled through systems and processes.

In the UK, safety critical or high risk industries almost invariably also have have some form of independent investigatory body capable of investigating serious incidents or failures. Aviation has the Air Accident Investigations Branch (AAIB), Rail has the Rail Accident Investigations Branch, Maritime has the Marine Accident Investigations Branch.

These independent bodies all operate on similar fundamental principles, described clearly in this excellent paper by Carl Macrea and Charles Vincent.

“…they provide their industry with independent, public and non-punitive investigations which address the full spectrum of causes and which target recommendations at all relevant organisations throughout the industry. “

The ‘non-punitive’ aspect is key. If you speak to people with experience of safety in Aviation for example, this leads to a culture whereby pilots are quite at ease with self reporting their own errors and near miss events.

How does this compare with the current framework for investigating serious incidents in healthcare?

The evidence is pretty clear. In this article, I talk about the confidential inquiry into perinatal and maternal deaths across Cumbria, published in 2013 but covering the 2010 period.

The report looked at 60 perinatal deaths and identified that of these, 20 had at least one major avoidable factor that more likely than not caused the death. Of these 20 cases, the report found that only one was reported and investigated as a serious untoward incident.

These were the deaths of babies that a confidential inquiry found could have been avoided, yet 95% of the cases were not even investigated as serious incidents.

The Health Ombudsman (who I will come back to later), has recently announced a review of 250 cases they are dealing with which involve potentially avoidable death.

Speaking to the Telegraph, Dame Julie said

“We are investigating more than 250 complaints about avoidable deaths and many more about avoidable harm. The quality of investigations of those serious cases is incredibly variable and most appallingly, sometimes there is no investigation.”

Although there are signs of positive change, it’s clear to me that we still have a problem, not just from the examples above but from the many stories I hear of people struggling to come to terms with the potentially avoidable loss of a loved one, who years later are still left without answers and with doubt as to whether or not lessons have been learned.

Families in this position can find themselves failed multiple times. Firstly, they may have suffered due to an avoidable error with tragic consequences. Secondly, they are failed by the organisation involved who either completely fail to report and investigate the incident or fail to carry out an adequate investigation. Most appalling of all, when those families have nowhere else to turn other than the complaints process (like the man returning his faulty washing machine), they are often faced with a defensive response in a system whose ultimate arbitrator is the Health Service Ombudsman.

Those of you who know the story of Joshua, will already know that my experience of dealing with the Ombudsman could not have been any worse. Recently however, there is a wider and growing recognition that there are serious problem with this service.

Earlier this year, in an unprecedented move, the Secretary of State for Health wrote to Dame Julie in relation to the tragic case of Sam Moorish.

He wrote

“I consider you have failed to meet the high standards the public have a right to expect and, most importantly, you have let down Sam’s parents in the most serious way. I am concerned that in a complaint of this seriousness and sensitivity there should have been a delay of two years before Sam’s parents received your support. I am certain that such a delay must have caused additional untold stress and upset to Sam’s parents at an already terrible time for them.”

More recently, the Patients Association published a report “The Peoples Ombudsman How it Failed us”

The report concluded “The cases highlighted in this report and described in their own words by the families who have dealt with the PHSO, reveals just how poor the service provided by that body has become…The Patients Association therefore continue to be drawn to the conclusion that the PHSO remains unfit for purpose.”

More worrying still, since the report was published, the Patients Association say they have been inundated by patients and families desperate for somewhere to turn to for help. This prompted the Patients Association to write to the Secretary of State just last week stating

“If the PHSO was a school or a hospital, evidently failing so demonstrably, special measures would be introduced as a matter of urgency to stop the rot and prevent the situation from deteriorating further. Why is equivalent action not being taken in relation to the PHSO?”

If this sounds exaggerated or over the top, as someone with direct experience of the PHSO, I would tell you it really isn’t. Urgent change is needed.

The good news is that the momentum for change is growing.

Today, the Public Administration Select Committee (PASC) have announced an inquiry intocomplaints and clinical failure in the NHS.

“The Committee is considering ways that untoward clinical incidents could be investigated immediately at a local level, so that facts and evidence are established early, without the need to find blame, and regardless of whether a compliant has been raised. It is hoped that this work will reduce the need for complaints to go to the Parliamentary and Health Services Ombudsman (PHSO), whose main role relates to administrative and service failures in the NHS in England.”

This important inquiry makes reference to the excellent Macrea/Vincent paper and looks set to explore whether or not an independent investigatory body for the NHS is a viable and beneficial option. I hope that as many people and organisations as possible will submit evidence.

In the mean time, the NHS must prioritise the open reporting of all serious incidents (the new Duty or Candour will help), and focus on improving the quality of local investigations and learning.

Most of all, those families who are forced into the NHS complaints process for answers relating to serious clinical failures, must be able to turn to an effective, compassionate and credible Ombudsman service. Recent evidence still suggests that we are still some way from this and given the Patients Associations recent report and concerns, serious questions must be raised as to whether this can be achieved without external intervention.