[For background read why campaigners need academics – part one]
It’s not difficult for Rob Behrens, the Ombudsman to stimulate academic debate. From the June 2018 meeting minutes
In January 2019 the academics held a ’roundtable’ event’ which produced a Manifesto for Ombudsman reform – as reported by UKAJI in March 2019.
“…this post outlines a Manifesto for Ombudsman Reform based upon a roundtable discussion at the University of Sheffield in January 2019. A cross-section of stakeholders to the ombudsman community participated in the event…”
It was refreshing to see references to the service user viewpoint in this report but we were not part of the cross-section of stakeholders invited to the event where our voice could have contributed to the construction of the manifesto. There is a certain irony in the final recommendation considering that the academics themselves failed to directly ‘incorporate the views of users’ in their decision-making process.
7. The office [PHSO]should be challenged to evidence its capacity to assist all sections of society and incorporate the views of users and investigated bodies into the design of its decision-making processes and setting of standards.
The reality is that the views of the service user are rarely sought, yet when they are, these views give a consistent narrative and central to that narrative is the claim that the Ombudsman is biased against them.
In an article in the New Society in 1983 Whose side is the Ombudsman really on? Paul Burgess cites examples of bias such as relying on the information provided by the public body without cross-referencing with the complainant; information which turned out to be flawed and the repeated use of ‘accommodating observations’ to put the public body in the best light. He concluded that;
At grassroots level, I believe the ombudsman scheme has been a failure. It does not offer the ordinary citizen a satisfactory remedy against administrative abuses; indeed, it has become a part of the oppressive network of official institutions which, though purporting to offer public service, have effectively acquired purposes and justifications of their own.
2014 – 2016
Between 2014 to 2016 the Patients Association released three damning reports into the Ombudsman service. Recording the views of over 200 service users, 66% stated that there was ‘weak justification’ for the PHSO decision and 62% reported that PHSO ignored or overlooked the evidence, apparently siding with the Trust.
2015 – 2017
Lack of impartiality was a key issue in research carried out by Gill and Creutzfeldt in 2015 and reported in 2017 which looked at the views of on-line critics of Ombuds services.
Lack of impartiality (the ombud siding with the public body), lack of transparency (private deliberations) and lack of robust inquiry are the key criticisms identified. Watchers refer to lack of opportunities for face-to-face interaction, interviews, fieldwork; they suggest that the paper-based approach is inevitably weighted against the citizen, as control of official records are in the hands of the public body. Ombuds are experienced as emotionally and professionally attached to public bodies and their staff rather than to citizens. The form of expectations management used by ombuds is seen as patronising and concerned more with KPI issues (speed, cost, politeness) than with questions of justice. The ombud is seen as a ‘pseudo-system of administrative justice’.
In 2017 Martin Lewis from Money Saving Expert carried out a consumer review of Ombudsman services and released a report called Sharper Teeth Approximately 100 people supplied data concerning PHSO and 75% claimed that the Ombudsman appeared biased towards the other party. (p59)
2018 – 2019
Completed in December 2018 but released without fanfare in March 2019 the clinical advice review gives a rare insight into the investigation process at PHSO. Sir Liam Donaldson was able to internally assess how PHSO gathered and utilised expert clinical advice when making decisions on clinical care complaints. He spoke with caseworkers, clinical advisors, management and importantly, talked directly to service users plus access to written contributions from complainants. His report revealed a number of unpalatable facts which exposed the ways in which error is allowed to permeate the process without proper check and balance.
Given that the Ombudsman has been able to investigate health complaints since 1973 and was empowered to investigate clinical judgment from 1996 the opening statistics given by Sir Liam are a shocking indictment of the value of this service.
Just one example illustrates the ineffectiveness in system level learning and improvement. Recently, the government’s Health and Social Care Secretary commissioned a major academic study of the prevalence of medication error in the health service in England (6). This showed that an estimated 237 million errors occur at some point in the medication process each year. Yet, most categories of medication-related harm that happen today were delineated in a study in 1961 (9). No other major high-risk industry has such a poor record of safety improvement. (p4)
There were around 208,000 written complaints made to the NHS in England in 2017/18 (10). This equated to about 572 per day. There is no information available to show how these complaints align with each of the six sources of poor quality or unsafe care. There is little information to show how complaints are used to systematically improve in these areas of quality and safety. (p4)
Just what has the Ombudsman been doing in all this time? By casting an external eye over the procedures, Sir Liam was able to identify the ways in which the prescribed ‘process’ failed to meet the core objectives of protecting the citizen.
The handling of complaints by the PHSO service is very procedurally driven. In part, this is because of legislation governing the PHSO role in NHS complaints, in part because of internal procedures, both written and unwritten. Both are underpinned and reinforced by the induction, training and supervision of the organisation’s staff. Generally, close adherence to these procedures is important and a good thing but not when they do not serve a necessary wider purpose (e.g. of safeguarding future patients from harm) or when they discourage thinking and common sense reasoning (e.g. not taking up a serious concern about care because it is not one of the strands of the complaint) or when they confuse and upset too many complainants. Some staff are very protective of the current procedures and seem to hold the belief that, because of the statutory role of the PHSO, little can be changed. (p9)
PHSO has no external scrutiny of its investigation procedure and is, therefore, able to operate in ‘a self-confirmatory bubble’ which is beyond challenge. The dangers of this were immediately apparent to Sir Liam.
On reading the judgement, [Miller & Anor V Health Service Commissioner] it is a perfect example where the internal world and the external world see things differently. Those handling the complaint believed themselves to be following the normal rules, customs and practices. Yet, the account of the Appeal Court Justices on the handling of the complaint brings an entirely reasonable expectation from the external world that decisions and actions should be appropriate and fair. The PHSO’s team in this case believed that their work was procedurally sound. Impartial scrutiny found that they were not. P10
‘…an entirely reasonable expectation from the external world that decisions and actions should be appropriate and fair’ is a very telling phrase as is the fact that the PHSO team believed their work to be procedurally sound when it was found to be ‘irrational to the point of illegality’.
When meeting with service users and consulting the complainants written evidence the issue of bias once more topped the league table of complaint.
It is striking, that in the Clinical Advice Review Team’s meeting with complainants, there was a widespread view that the PHSO would take sides with, or protect, the NHS organisation complained against, or fail to challenge the provider of care robustly enough. (p11)
Accusations of bias, secrecy, insensitivity, error and failure to listen, occurring as they did, in the period before this Clinical Advice Review was commissioned are extremely important in considering what changes now need to be made. One way or another, the process of clinical evaluation of complaints is interwoven with such criticisms and concerns. (p12)
Sir Liam then cites a number of ways in which ‘error’ permeates the process such as the lay caseworker making assumptions which then affect the quality of the evidence provided by the clinical advisor. Or the caseworker failing to provide key evidence to the clinical advisor, failing to take heed of warnings given by the clinical advisor or failing to include harmful acts by scoping them out of the investigation altogether. He concludes;
Overall, based on my review of cases, together with my discussions with staff and complainants, I judge that the current process of commissioning and use of clinical advice is prone to three types of error: errors of fact, errors of interpretation, and errors of omission. (p18)
The current procedures have clear problems with a real risk of drawing the wrong conclusions. (p20)
Sir Liam stresses the importance of listening to public criticisms of PHSO which include those made prior to the appointment of Rob Behrens.
These may be thought of as past events of no direct relevance to the current Clinical Advice Review. This would be a mistake. Addressing their underlying causes and dysfunctions is essential to the new PHSO continuing to implement his reforms whilst retaining the confidence of patients and the public. These past criticisms echo many of the risks that are quite clear in the present handling procedures for complaints. Also, the negativity from these events is swirling around the present service, even though it has made a fresh start under the new PHSO. Moreover, the complainants, with whom the Clinical Advice Review Team met, brought serious concerns about their cases to the meeting. Their experience was consistent with the previous criticisms. Although information is available on people who were satisfied with the PHSO’s work, the complainants who responded to the consultation should not be regarded as an unrepresentative minority. Changes to the current way of working should be such as to restore confidence in the PHSO’s ability to get right the assessment and investigation of complaints. Errors should be rare. There should be no hint of bias towards NHS bodies. Complainants should feel fully engaged in the process. (p19)
‘These past criticisms echo many of the risks that are quite clear in the present handling procedures for complaints’. Many of these past criticisms emanate from members of PHSOtheFACTS who have repeatedly tried to alert both PHSO and PACAC to the failures now identified in Sir Liam Donaldson’s report. Calls for reviews have been repeatedly denied by Rob Behrens on the basis that the decisions in our cases were sound despite the fact that in the recent Value for Money report the staff reported that “previously, performance management had been too driven by artificial targets and process, rather than a concern with the quality of decisions being reached” (6.4 p21) and despite the fact that the Miller & Anor case demonstrates the inability of PHSO to accurately evaluate its own performance. Following this judgement against PHSO it was reported that the use of clinical expertise had been dysfunctional for at least 8 years, hence the call for Sir Liam’s clinical advice review.
The following correspondence between Rob Behrens and Sir Bernard Jenkin chair of PACAC sent on 23 rd February 2019 refers to a meeting held in October 2017 with members of PHSOtheFACTS. This correspondence is an attempt to close down all prospect of independent, external review of our unresolved cases.
Dear Sir Bernard,
I cannot let the email to you from [REDACTED] pass without comment. Leaving aside his accusations of corruption and ‘abusive’ letters, I draw your attention to the basic issues in this case:
1. [REDACTED] was one of more than 30 families I agreed to meet in October 2017;
2. I listened to their stories and agreed to look again at their historic cases with an assurance process involving a senior colleague who had no previous involvement. This involved a significant amount of work;
3. As I reported to PACAC in January a very small number of those cases were found to have unreliable decisions and were/ are being looked at again;
4. [REDACTED] case was not. You have the letter I wrote to him at the time.
5. Along with others, [REDACTED] then called for an ‘external independent review’ but as I have always maintained, the Ombudsman is the external independent review and anything else – leaving aside unprecedented, very rare circumstances – undermines my authority and my relationship with Parliament.
Mr Behrens reviewed the case files presented to him, informed us that he was ‘horrified’ by the contents but later found that just a few cases needed closer review. These few cases remain in the PHSO system without resolution, despite on-going reviews which have lasted over 18 months. It is clear that without independent scrutiny of these cases inherent, institutional bias will not be identified.
Sir Liam stressed the validity of the claims made by the service users to confirm they were a ‘representative group’. He also found that the views he heard at the roundtable meeting reflected the same views he had seen in the written evidence. This demonstrates a consistent narrative despite the fact that no PHSOtheFACTS members were present at the meeting to influence the debate.
It would be wrong to simply note the critical comments and conclude that they were an unrepresentative minority. The sources of information on complainants’ experience provide rich and important insights into the functioning of the PHSO service. It was particularly striking that the group of complainants, with whom I, and the Clinical Advice Review Team, met, was not made up of vexatious or unreasonable people. They expressed frustration and, anger, but the problems that they described with the handling of their complaints should be a vital source of learning. Many of their criticisms of the PHSO’s processes, and those in the documented accounts and submissions, were consistent with what I had already observed, having read a sample of records provided to me. (p13)
Since Rob Behrens became the Ombudsman in 2017 access to justice has been reduced. Firstly, through a reduction in the number of investigations. written evidence to PACAC 2018
5.3. Between October 2017 and June 2018 the PHSO completed just 1398 investigations, a reduction of 52% from the same period in the previous year when 2929 investigations were completed.
5.4 The performance statistics for the July to September quarter have now been released and only 440 health investigations were carried out during this period compared with 991 during the same period of 2016-17, a reduction of 55%, and only 271 complaints were upheld or resolved compared with over 400 during the same period of 2016-17, a reduction of more than 30%. Clearly performance is not “fully back on track” as promised by Amanda Campbell and the “many areas” of “improving performance” identified by the Value for Money Study remain elusive.
5.5 The percentage of complaints being assessed as suitable for investigation or resolved has also dropped from 47% to 31%. In other words complaints which would have been accepted for investigation in 2016-17 are now being rejected. Is this a deliberate policy?
5.6. The increase in complaints being resolved at assessment does not compensate for the large decrease in the number of investigations being carried out. It is important for public confidence that the public is informed as to whether this reduction in the overall number of investigations and resolutions is permanent.
All external review of Ombudsman decisions has been removed including the oversight given by the ‘quality assurance associates’.
1 & 2. There are currently no external quality assurance associates
operating within PHSO.
3. For the business year 2017 – 2018; 414 cases were reviewed by external
quality assurance associates.
4. The decision to cease the external quality associates’ contracts was
made in September 2018.
It is now more difficult to request a review of the final decision due to a reduction in the time from three months to one month which is compounded by the failure of PHSO to automatically provide the evidence relied upon, resulting in the need for lengthy subject access requests.
In the new PHSO service model, it is impossible for the complainant to challenge the scope of the investigation in order to ensure that all key points are covered. (see fourth bullet point in this list)
The whole investigation and review process is a secretive, closed-shop which is rigged against the complaint in a number of key ways giving rise to the repeated accusations of bias.
Proposal for academic research:
It can be seen that in its role as Health Service Ombudsman PHSO have failed to deliver improvements in patient safety. There is also evidence from Sir Liam Donaldson’s clinical review that the internal processes of investigation are subject to error of fact, error of interpretation and error of omission. The consistent narrative of service users is that such errors lead to bias and the failure to deliver justice. The evidence gathered for the recent clinical review provides significant new data about the current practice which could be explored further by academics. The twelve service users who attended the roundtable meeting with Sir Liam have been confirmed as ‘representative’ voices. Sir Liam also confirmed that their criticisms echoed those made previously, which remain unresolved. He stressed the importance of listening and learning from these criticisms in order to restore public confidence and effectively move forward. It can be seen that PHSO are culturally unable to carry out a meaningful review into their own practice. As part of the Manifesto for Ombudsman reform, the academics could learn much by examining in detail the case files of the twelve participants in the round table event and could widen their research to include the written evidence provided and source the case files from members of PHSOtheFACTS who contributed to the review directly through Sir Liam Donaldson. Independent academic research is needed to identify the areas where bias enters the process and to propose new quality control measures to ensure that final reports are totally free from bias as recommended by Sir Liam. Our collective lived experience has been repeatedly denied by those in a position of authority. Independent academic research is, therefore, essential and would contribute to the important debate surrounding the proposal for a new People’s Ombudsman.
Let us take this opportunity to work together and put the ‘people’s voice’ at the heart of the