The state V the citizen. The ultimate catch 22

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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15 comments

  1. M

    In asking for a complaint about foot surgery to be addressed, Mr Hawkins has stumbled across a sinister network which appears to have acted in concert to block proper investigation.

    This account is both insightful and disturbing yet chimes with many – me included – who have been hobbled by existing complaint handling systems. Mr Hawkins is brave and resilient. It inspires us to contnue the foot slog along the long road towards complaint resolution..

  2. Sue Forsey

    Della when I went to Learning From Deaths hosted by NHS England in November 2107 the one positive element I took away was that in listening to many of the broken hearted peoples complaint paths, they were all the same format. Of course there were some who went off in different directions but it all came back to the same agonising complaint journey. A lot of Mr Hawkins complaint journey is similar to my own the one that grates is the retention of medical records The PHSO knew of my concerns with the records but put their usual shutters up and refused to answer saying lack of evidence but there was evidence! hard evidence.
    The PHSO are the ‘backstop’ to stopping serious complaints getting any further but masquerade under the guise of ‘helping resolve the issue’ They do not they are not impartial and are there to protect the trusts.
    They are the governments nasty little way of keeping the NHS service running
    It is all coming out now on twitter, on your site, complainants have been so cautious in coming forward. If enough of us do come forward and publish our complaint journeys, surely the government will act and change this unfair system?

  3. Jill Mizen

    So we the public fund all these bodies to protect the law abiding citizen? Instead we get individuals from the government down using our money to fund not only their expenses but charities like OXFAM, all abusing their positions of power. Makes you ashamed to be British.

      • Jill Mizen

        It gets worse, the more you look into everything all roads lead back to the government. We need a strong political party with morals.

      • dms91

        Wasn’t Steve Barclay MP in Public Accounts Select Committee before this? Shameful behavior! I had thought he had understood and wasn’;t just serving self

  4. brenda

    I would like to be shocked, but I’m not. All those who have tried the system know only too well how corrupt it is. How no one is accountable. We are told ours is the best justice system in the world and the best NHS system in the world…..Heaven help the others…I think what it means is, we are the best at covering up corruption at all levels. Are you listening David Cameron? He who over heard making aspersions about some African countries.

    And another question….who safeguards us against the safeguarders, when they get it wrong?

  5. Ron

    The old adage ” Would you like the Good news or the Bad?” Queried the doctor “The Bad News” replied the patient ” We seem to have cut the wrong leg off sir, the left one” replied the doctor “Well what’s the good news then?” enquired the patient “Well you’ll be delighted to know that the right one is now getting better”
    Seems when it comes to negligence in the NHS it is a case of “these things happen” and no one is ever accountable for anything and you are supposed to accept the PHSO claim that they are impartial and if you believe that, you can plat fog!

  6. Fred Bloggs

    And it isn’t just the NHS that PHSO allows to fail.
    PHSO has not been fit for purpose for certain protected characteristic groups for years as it discriminates against them. The abuse that PHSO upholds, in public and Government services, as it is as institutionally prejudiced is scandalous.

    It is an organisation that frequently “case dumps”, usually without warning, and when you complain about it, either ignores you, or upholds its reason for doing this by ignoring the very obvious evidence that you have presented it of wrongdoing in public service.

    It really is an appalling, now dangerous, organisation as it gives an impression of being fair when it is far from being such.
    And those that could force its reform – MPs, invariably, support it, in the full knowledge they are not fit for purpose, and are harming those it was meant to, particularly protect, those must vulnerable that have been consistently denied a modicum of fairness and equity of treatment.

  7. elisejholton

    Prior to the court of appeal with regards to my whistleblowing case I made subject access requests to NHS, my Daughter school & social care. All of which were involved with ICO for breaching data protection. NHS altered records and still have not provided a full response, ico let them off, daughters school breach confirmed by ico but did nothing and social care (council) also got let off by ico…and guess what they say go to phso!!! I am still trying to get department of education to look into complaint with daughters school having held all records for a year and following phso format. It now appears M.P is also ignoring me. It really is totally unfair and catch 22.

  8. Rosamund

    Impossible for me to be shocked.
    My complaint – which was not about my own care- concerned the comprehensive falsification
    of NHS and Social Services records for vulnerable adults, leading, inevitably, to very serious failings in their NHS care.
    The complaint included the close involvement of a third public authority.

    Occasionally, a member of staff evidently tried to intervene – and by evidently, i mean that their actions and observations are documented in NHS records now in my possession. Such attempted interventions and questions always came from junior staff.
    The ICO corrected very serious claims made to me by an NHS Trust and fundamental to my complaint.
    Trust claims were completely untrue’
    This was referred to the PHSO – without success.

  9. EJ

    One example of the widespread corruption in the state and the authorities, all public bodies, all regulatory bodies, all ombudsmen (LGO is as bad as PHSO and the two ombudsmen have regular meet-ups, which must be delightful for them, discussing how many members of the public they have deflected and denied justice to). This country makes me sick, the rare few examples of decent, honest people who work in these examples cannot balance the huge amount of corrupt liars who collude together to not only cover-up what they have done, but to discredit and bad-mouth innocent complainants.

  10. Nicholas Wheatley

    Stephen Barclay demonstrates that he is not fit to hold office. How anyone with power can think it is appropriate to denigrate and dismiss the complaint of a powerless member of the public and use parliamentary privilege to not so subtly suggest that he is a conspiracy theorist is beyond me. Hopefully Mr Barclay will soon be dismissed from office.

  11. nicola159nicola

    I’ve just subscribed here after being screwed over by the PHSO and the ICE for the DWP. I’ve noticed all comments and articles seem to relate only to the NHS. I can confirm that the exact same obstruction, obfuscation, and general collusion and corruption is exactly the same when going through the process for DWP maladministration.
    I made a complaint over a year ago when submitting my case to the Ombudsman about the MO of the ICE – drag the wrong case out for a year, drag the real case out for almost another year, select the few areas of the complaint that have been settled and spin it so it looks like the DWP did a sterling job in sorting it out (except the DWP was forced to back down by me using a Tribunal application) and uphold those areas, fudge as much of the rest of my complaint as it could, ignore the most serious points, and then refuse to acknowledge its own maladministration when I pointed it out… and then just repeat until I gave up and took it to the Ombudsman.
    Ombudsman did pretty much exactly the same thing and agreed in whole with the ICE – from the look of the response PHSO staff had never even looked at my actual case. And dragged the whole thing out for well over a year.
    Imagine my surprise when I found this site and realised this MO I had spotted and complained about so long ago was written about on here by others.
    The MO seems to be across the board – not just for the MHS cases.

    It would be nice to hear from more people who are having these issues with the DWP – assuming they survived their abuse.

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