How must the PHSO be reformed to carry out any kind of competent scientifically valid complaint remedy-one clear step

1.PHSO and the present context:
I agree with PACAC what is needed is something like HSIB but this will only deal with a very small proportion of cases coming through what everyone agrees (eg recent CQC report) is a still seriously failing investigation and learning system despite everything that has been concluded over years of excellent reports, many by your committee.

The only system that reliably works is the NRLS at NHSI addressing novel and under recognised risks and that depends entirely on Trusts reporting and a team of committed safety experts and wider consultants and advisers including myself, one of a number of patient public voices PPVs

2. PHSO Some root cause analysis needed
I agree with PHSO the facts that the draft Ombudsman legislation needs serious scrutiny and much amendment. I agree that some of key the failings of PHSO are around bias and a lack of both transparency and accountability.

The key question to me, and which has been revealed to me through my experience with 6 investigators, 2 leading managers and 2 senior reviewers, is to ask WHY these failings occur?

I don’t believe a root cause analysis of why this PHSO system fails so badly for so many has been done. If NHS interventions should be evidence-based surely so should the system to investigate harm caused by the NHS? I think PACAC should urge some work in this area, from perhaps HSIB?

3. PHSO: a legalistic model : not a learning model

Reasons suggested for the many failings of PHSO by understandably agitated complainants include:

  • Cover up by Trusts and other public authorities – their main goal is reputation protection
  • PHSO being created as protected ‘dustbin’ for unresolved complaints – a Government cover up
  • Incompetence and extreme slowness in the PHSO – not able to or willing to read, understand, treat patients reports as evidence. Equally, acceptance of unsubstantiated assurance from public bodies.
  • More recently PHSO totally inundated by cases so resort to an even more a rushed administrative process using interim staff.

As someone with years of medical and social service professional training and experience working as a front-line professional, community care manager and researcher is that most significantly it uses an-‘administrative-injustice-legal-blame’model .This model can easily lead to failure to uncover serious system failings which I will explain below

By administrative-injustice-legal-blame’model I mean ‘investigations’ focusing on finding ‘unreasonable’ actions influenced by the negligence Bolam definition of failing and which results in unremediated ‘injustice’.This whole model is inherited from negligence claims and is very different and often totally contrary to the goal of finding out why harm was caused and how to prevent it.

It is also contrary to model investigation practice summarised by the NPSA Incident decision tree where once foul play, recklessness, and failure to follow guidelines has occurred then any failing and harm once guidance has been followed indicates system failure – not reasonable. The issue is not the blame of the worker but the reason harm occurred and system failure. Inadequacy cannot be ignored any more as Mid Staffs and concerns of your committee about PHSO shows, but we need to understand why these failures occur  page 5 here decision tree

In my case a common practice of a drug’s use, despite my raising the issue of contradictory guidance was, and still is regarded to be ‘reasonable behaviour’ …  So I was forced to seek redress outside all existing systems, and years later via NHS Improvement Patient Safety got what became two national Patients Safety Alerts.

The PHSO could not grasp system failure if failings were of the system, even though as we know notions of good practice are being refined all the time.

I was left to seek a safety alert because trusts and the PHSO failed to understand that ‘normal practice’ was in fact harmful so identifying systemic problems. I think Scott Morrish hinted at this in your recent Committee hearing

PHSO is not a learning environment:

The chance of this serious failure I believe is also increased by the present, model of lay-led investigation of complaints comprising

  • complainants make statements – no systematic way they are presented-harm is not the core focus
  • Trust reports and doctors statements are often legally crafted by medical defence lawyers and legalistic trained advisers to minimise serious admissions of failure and protection of reputation-best interest often used retrospectively even if contrary to patients rights around consent, capacity etc
  • lay investigators with no medical knowledge, training, clinical experience (except for that they pickup third hand on the job) have to create a narrative by drawing on advisers-someone with clinical knowledge training,but in my experience not always the right degree of expertise when it comes to harm and possible system failure (they are asked to look at reasonableness-not gold standards of care even if some people need this, eg complex cases like mine), who is asked a series questions set by the lay person, and then

a) previously: this external advisor was sent the papers wrote a response which the lay investigator cut and paste from to create a narrative within this injustice framework

b) *now, due to budget cuts as part of a new cost saving (?speedier -not in my case –third report taking 2.5 years already), has a ‘chat’ with the internal adviser who then writes up a formulation based on this conversation written up signed off later by the adviser)

This model makes for a very lengthy process, looking at a limited number of aspects of the case (asking: was this a reasonable course to pursue?) –and everything else follows. Judgement frustratingly lengthy and frustratingly incoherent to complainants and patients who simply want to know and understand why harm arose and how to prevent it. Not dancing on a pin about reasonable actions.

As Della of PHSO the facts summarised it to me:
‘The model of administrative justice which relies upon finding maladministration is flawed.  It prevents scrutiny of discretionary decisions by public bodies.  These cannot be taken into account unless maladministration is identified.  It prevents scrutiny of whether processes are fit for purpose with the idea being there can be no maladministration if process is followed (and even when it isn’t according to PHSO).  There is no definition of maladministration to provide consistency of decision making and according to Helen Holmes, head of legal at PHSO it is not possible to define the term.  If the term is so difficult to define then it shouldn’t be used as the core criteria for uphold.  Harm should be used instead.  Was harm caused by the actions or inactions of a public body?   

What is needed

For me the whole model, undefined maladministration, injustice, searching for unreasonable action is totally different to and incompetent when trying to do root cause and human factors analysis of clinical incidents which is the ONLY way learning can occur as your committee has learned from international experts like Vincent and Macrae

As Scott said what is neglected to be examined is the ‘quality of investigations’. Hence my call for scientific evidence looking at why PHSO fails, ideally using HSIB expertise.

My case would be a prime example, and even the PHSO admit numerous failings and have promised an external review looking at all of my concerns when their last investigation is completed (in the coming weeks/months)

As another complainant Julian Stell has put it (personal communications):  ‘The NHS rightly administers evidence based clinical treatment. Yet the PHSO routinely publish oral and written witness evidence to Parliament that demonstrate NHS Trusts routinely fail to administer evidence based clinical investigations. Why?’

Moving away from the maladminstrative injustice blame model, as Trusts are urged to do under the Just Culture scenario surely PHSO must also follow this. PHSO determine that maladministration cannot be defined, so on this basis it should not be used as the central criteria for uphold.

What is needed is a clinical, human factors-medical decision making and learning model where harm assessment, investigation, remediation’ is the focus. This is a serious and still under-articulated challenge to the whole administrative-justice ‘maladministration’ model of PHSO and must be reformed as part of the legislative process. I hope you will consider this and seek advice from experts, like HSIB how to pursue this as the PHSO is reformed.

The bottom line of course, is whether there is a genuine will to provide an effective body for the protection of the public.This reform of the PHSO is required to start to move in this direction in a speedy enough way, and not the one step forward one step backward type way as I have seen close hand (* b) above

Richard von Abendorff

PPV NHSI and patient safety ambassador Patients Association (personal capacity)