The simple truth is that complaints become historic through neglect. Neglect from those in authority to deal with them correctly in the first place. Complaint handling works on the principle that if the facts are sufficiently manipulated and an honest appraisal is delayed long enough, then most will fall by the wayside due to emotional exhaustion. It is a tried and tested method of self-protection which has been operating in the Health Service and other public bodies for generations.
Will Powell was the first to seriously test the system by refusing to be beaten down. Over the 25 years of his campaign for justice he approached every authority, parliamentarian, court system and media outlet, finally achieving the introduction of an NHS ‘duty of candour’ law in 2014. His son Robbie died from a treatable condition yet no-one was prepared to take responsibility; delivering instead lies and cover-up which were all perfectly legal. Will Powell’s fight for justice.
Since then many others have joined a growing band of vocal campaigners for reform of NHS complaint handling such as Julie Bailey, James Titcombe, Josephine Ocloo and many, many more who have yet to be recognised. They have all discovered that when at their most vulnerable, the complaint system let them down. Rather than deal honestly with the evidence authorities stall and personally vilify anyone who continues to ask questions. However, the internet has allowed these stories to be shared in a public space and what emerges is a deliberate and systemic process of damage limitation across the NHS and throughout many government departments. The various regulators play the ‘not in our remit’ card to avoid taking responsibility, whilst public bodies pay legal teams large sums of money to run any continued criticism into the ground.
Most have succumbed; unable to fight further they have withdrawn from the processes only to suffer continued Post Traumatic Stress Disorder which is likely to adversely affect their whole family. All trust in authority is destroyed as one door after another is closed. Those with the strength to continue have written endless letters, emails, blog posts, pleas, lobby letters and more. Thousands of words, thousands of tears and still no justice.
The Mid Staffordshire inquiry was a tipping point and it only came about due to the brave efforts of Julie Bailey and her dedicated team of campaigners. It took three years to complete from 2010 to 2013 at a cost £6 million. Mid Staffs Inquiry It found that the regulatory bodies had all failed to respond to serious patient safety issues. That would come as no surprise to the powers that be who operate the covert complaint process, but shook up the general public who, having never used it, still had trust. Following the Francis Report the government swung into ‘something must be done’ mode and set about doing what government does best and opened a series of reviews, (too numerous to name). We are now entering the ‘action’ mode, three years after the shocking findings came to light. The Public Administration Select Committee (PASC) held an inquiry calling for a new clinical investigation body to work along the lines set by the airline industry. So called IPSIS (not its final name) is due to emerge blinking into the daylight in April 2016. Investigating clinical incidents in the NHS
In January 2012 a new Health Service Ombudsman was appointed and Dame Julie Mellor set about reforming the complaint handling process. In 2013 a new plan emerged to provide ‘more impact for more people‘. PHSO Strategic Plan 2013 The intention was to increase the number of complaints investigated from around 400 to over 4,000 and this would fend off criticism from the Mid Staffs fall out that the Health Service Ombudsman failed to investigate any of the cases submitted during the time of the inquiry, including that put forward by Julie Bailey. All this number crunching failed to look at quality however, and although more people received an investigation their expectations of justice and remedy were generally disappointed months down the line due to a full uphold rate of just 6%. (Only 416 complaints fully upheld in 2014/15 from 6,815 formal complaints assessed – those with partial uphold can include minor infringement such as timing of correspondence and completely overlook major breaches in policy.)
In 2013 Oliver Letwin from the Cabinet Office took charge of delivering new legislation for reform of the Parliamentary and Health Service Ombudsman and improving the complaint handling process across government. Oliver Letwin – Complainers’ Champion Robert Gordon CB produced his review of the Ombudsman Landscape euphemistically called, ‘Better to serve the Public’ Robert Gordon Review in October 2014. Following this review, draft legislation is due to be released in the spring of 2016 to bring about a single Public Service Ombudsman.
By 2014 a new health consumer champion in the form of Healthwatch appeared on the scene. With regional and national bodies it aimed to gather evidence of poor health service delivery and report back to CQC or government bodies. Unfortunately, it has no powers to enforce change and no ability to investigate individual cases.
Historic cases still falling through the gaps:
The new clinical investigation body (IPSIS) has made it clear that it will be unable to review historic cases. With a remit to investigate only 30 cases a year this decision was probably inevitable. CQC and the new Healthwatch consumer body are both unable to look at individual cases. That leaves only the Ombudsman. The present Health Service Ombudsman has been advised by the parliamentary select committee (PACAC – previously PASC) not to spend time reviewing historic cases. However, Mike Durkin, National Director of Patient Safety at NHS England (with oversight of IPSIS) and Bernard Jenkin, Chair of PACAC have both spent many hours listening to victims of the NHS complaint process. They have heard or read of the abuse they have suffered, the unanswered questions and their inability to find closure due to a dysfunctional process. There is general agreement that something must be done, the question is what?
Public Inquiry or Legacy Unit?
The Patients Association and Will Powell are calling for a Public Inquiry into the handling of these historic cases. A clearing of the air with evidence put in the public domain and a series of recommendations to follow. Firstly, this has to be initiated by the Secretary of State for Health, Jeremy Hunt. He too has spent much time in the company of campaigners, most notably James Titcombe, so is very aware of the damage caused by failure to address injustice. Should he be persuaded to take up this option then the possible £6 million cost could be the next hurdle to overcome. It would take at least a year to set up and another two to arrive at report stage.
Alternatively, when the Public Service Ombudsman legislation comes before parliament in the spring, there is the option to set this new body up with a Legacy Unit, dedicated to dealing with individual, historic complaints. A new body, with fresh eyes to look at the evidence held in ring bound files by the campaigners still seeking acknowledgement and answers after so many years. Would this be the cheaper option and would it also be more effective in providing much needed closure?
In any event the new Public Service Ombudsman is sliding in under the radar. IPSIS who will deal with 30 cases a year has a dedicated steering group which includes a number of campaigners, to ensure that all needs are fully considered. The new Public Service Ombudsman, who will deal with thousands of complaints, remaining the only route to justice for many families, has no steering group or oversight beyond the Cabinet Office themselves. Given that a primary role of the Ombudsman is to hold the executive to account, there is a clear conflict of interests when the Cabinet Office, central to the executive, are in sole charge of producing the legislation which will hold their own feet to the fire. There is a debate to be had here and it is for campaigners to drive this forward. An effective Ombudsman could deliver a brighter future for complainants and solve the problem of historic case review, but we all know this won’t happen without a fight.