In June 2018 in an interview with Dac Beachcroft LLP Rob Behrens, made it clear that the Ombudsman is not the people’s champion in a dispute with government departments or the NHS.

“I have a responsibility to promote the role of the Ombudsman, explaining very carefully to people that we are not there to be their champions …”

In the same article, he has much sympathy for the bodies who must handle an increasing number of complaints from the public.

“We will work with bodies in jurisdiction to help them resolve complaints more effectively. It’s very difficult for them [complaint handlers] in a culture that gives primacy to professional clinicians. Challenging clinicians in a constructive way is a skill and they need support and advice about how to do that.”

So the bodies in jurisdiction are helped by the Ombudsman to resolve complaints whereas the complainant has no help in navigating a quasi-judicial system for the first time unless they approach an advocacy group but with the Patients Association no longer representing patients in dispute with the PHSO most will have to battle alone if the Ombudsman has got it wrong.

The public bodies under investigation have not only the assistance of the Ombudsman in resolving the complaint (indeed Rob Behrens agrees that there is ‘goodwill’ towards the Ombudsman because  “departments understand they rely on the ombudsman for relieving them of issues they can’t deal with”. 2018

they also have the legal assistance of specialist law firms paid for with public funds.

Under the heading ‘When the Ombudsman gets it wrong’  legal firm Hill Dickinson gave the following advice to NHS bodies on what to do if the Ombudsman has made the wrong decision on their case. In other words, upheld a case against them (rather than relieving them of the issue?) 2017

‘When the Ombudsman gets it wrong’

Health lawParliamentary and Health Service OmbudsmanPHSO

The Parliamentary and Health Service Ombudsman (PHSO) is the last resort for unresolved complaints in the health sector. If the PHSO believes that an organisation has got something wrong, they can make recommendations for it to put them right. This can include explanations, apologies or recommendations for the service to learn and improve. However, many PHSO investigations will be based on information provided by the complainant alone which may not include all of the facts. For complex investigations, the PHSO may also instruct independent experts to assist them in their investigations. So, what happens if the PHSO gets it wrong? Can they be challenged?

Thankfully, the PHSO will usually share a draft of their report with the complainant and the organisation involved before it is finalised. Both have the opportunity to voice their opinion or challenge the findings and recommendations of the PHSO before publication.

There are two options available for challenging a draft PHSO report:

  •      Judicial Review – where the PHSO’s reasoning was fundamentally flawed – factually or legally.
  •      PHSO to review their draft report in the light of further evidence

Additionally, if a complainant has already brought a civil claim against your organisation in relation to the same issue that they are asking the PHSO to investigate, then the PHSO cannot as a matter of law continue with their investigation into that aspect. It may then be possible to prevent the PHSO from publishing any aspects of the report that has already been explored as part of the civil claim. If this argument is not accepted by the PHSO, then a claim for Judicial Review would be required, however this can be costly.

An alternative option is to provide a written response to the PHSO clearly setting out what findings and recommendations your organisation agrees with and where these are not agreed, provide supporting evidence for the PHSO to consider. You can then ask the PHSO to revise their findings and recommendations. Not only will this help your organisation in ‘getting the story straight’, but the PHSO will appreciate having any relevant information they have missed brought to their attention so to complete a thorough and fair report, after all, it would be inappropriate for the PHSO to report on the basis of the complainant’s evidence alone.

It may be the case that your organisation has obtained statements and expert reports from an earlier internal investigation and/or inquest that are relevant, that the PHSO has not seen. If time allows, you could also seek your own independent expert review of an incident.

Although the PHSO report is confidential up to the point that it is published, from then on there is a strong likelihood of press interest, whether the report is accepted or not. It will therefore be important to be quick off the mark to draft a press statement ready to go in the event that this is needed to prevent any backlash.

Top tips

  1. Obtain a copy of the draft PHSO report and ask for details with regards to what information they have reviewed in order to complete their draft report
  2. Request copies of any expert reports the PHSO have obtained and the experts CVs. Request confirmation as to what information the experts have reviewed in order to complete their reports
  3. Review the draft PHSO report in detail
  4. If there has been a civil claim in the past that has settled, consider whether the PHSO has been asked to report on the same issue as the claim. If they have, consider whether you wish to challenge this
  5. If any findings or recommendations are not agreed, establish why these are not agreed – do you have evidence to support this? If not, is it worth obtaining your own independent expert report to try and support this view?
  6. Has the PHSO draft report highlighted any lesson learning? If so, create an action plan in order to address this within a set timeframe, highlighting to the PHSO what lesson learning has already taken place
  7. Write to the PHSO explaining clearly what findings and recommendations are accepted and which are not. Those which are not accepted should have supportive evidence. Provide the PHSO with a copy of the lesson learning action plan so to demonstrate that you are already addressing those PHSO recommendations which are agreed. Request the PHSO reconsider their findings and recommendations in light of your letter and evidence provided
  8. Anticipate press interest and have a media strategy

The most important point is to take action early if you want to challenge a PHSO report. We can provide helpful advice in this regard.

“With a team of over 100 lawyers and national coverage, we are one of the leading firms providing legal advice and support to the NHS and independent healthcare organisations. We act for more than 100 NHS bodies and are on all of the national framework agreements – NHS SBS, NHS CPC, HealthTrust Europe, NHS Resolution and NHS Commercial Alliance. Our expertise and experience mean that we understand the issues you face and the clear and practical advice that you require, especially as services and systems become more integrated.”

While the complainant must struggle alone to understand the legal and clinical terms used in the reports, the systems and policies in place  and how these have been breached and gather all their own evidence by a series of repeated data requests, the body being investigated can simply put any matter not resolved to their satisfaction in the hands of ‘over 100 lawyers with expertise and experience’ all paid for by the public purse.

Some of the top tips, such as asking for the evidence relied upon at the draft report stage, are useful advice to all parties when attempting to challenge the Ombudsman’s decision but the complainant will not be advised to follow these steps by PHSO who, as we know, is not the complainant’s champion.  You will have to work it out for yourself and quickly.  Once the final report lands on your doormat complete with flaws, unsubstantiated assumptions and perversions of the facts it will be too late.  Unfortunately, the complainant is not usually in a position to obtain an independent expert report and even if they were there is no guarantee that the Ombudsman would regard it as valuable evidence when reviewing their decision.  Complainants are even less likely to be able to take the Ombudsman to judicial review following a flawed decision-making process as they do not have the financial backing of clinical insurance companies to take cases through the court system, possibly up to the court of appeal.

When the Ombudsman ‘gets it wrong’ the complainant is shouting in the wind trying to get their voice heard above the roar of the clinical body legal team who have the resources, experience and expertise to challenge upheld decisions and threaten damaging court action.   And this is what Rob Behrens, Ombudsman, calls an ‘impartial process’.

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