My name is David Czarnetzki and my issues concerning the conduct of the Parliamentary and Health Service Ombudsman have now been ongoing for over four years. The following letter was handed to my Member of Parliament, Philip Dunne at his constituency surgery on 30thAugust 2019.
The detail should impart on the reader a need for extreme caution in pursuing a health service complaint via this particular body. In 2015, the Patients Association described this organisation as “unfit for purpose”.
Read my story. You may well conclude it still is.
30th August 2019
Philip Dunne MP
House of Commons
London SW1A 0AA
Open letter regarding the conduct of the Parliamentary and Health Service Ombudsman (PHSO)
You will now recall the issues first raised with you in July 2015 following the publication of a final report, by PHSO on 22ndJune 2015, concerning my earlier treatment at Telford Hospital during 2013 and 2014. You corresponded with PHSO on three occasions in 2015 and, on each occasion, received no response from them. I have since been forced to embark on a determined, tenacious and sustained process to uncover the extent of the failings encountered at Shrewsbury and Telford NHS Trust and also those at PHSO. The PHSO failings are the focus of this letter and fall into three main categories.
- Refusal to quash the June 2015 final report
You will see from the core documents on the file that Rob Behrens the Ombudsman admitted, in a letter dated 9thApril 2018, his June 2015 final report came to the wrong conclusion. Since then I have been requesting the report be quashed. In his letter to Sir Bernard Jenkin, dated 1stFebruary 2018, Mr. Behrens confirms he has powers to quash a final report yet has failed to do so in this case. He has refused to explain why or enter into correspondence on this matter. His refusal to quash a report recognized as ‘flawed’ needs to be questioned at a parliamentary level.
His decision not to quash the final report has the following consequences:
- Behrens has portrayed me as an individual who made an unsubstantiated complaint in the eyes of Shrewsbury and Telford NHS Trust. I have strong objections to, and resent, being left in this position.
- The Trust has not been contacted by the Ombudsman and therefore never had an opportunity to learn from the issues raised since the flawed June 2015 report was published. You will be aware this particular NHS Trust is subject of various enquiries into the standard of some of its services and I must confess some sympathy for the relatively new Acting Chief Executive who may well be doing her best to improve things. Incorrect reports absolving the Trust, published by PHSO, can only hamper any genuine effort the Trust CEO makes to create better outcomes.
- If the Ombudsman is prepared to leave this incorrect report in the public domain, it then becomes legitimate for complainants, NHS management, clinicians and politicians to suspect and question the level of thoroughness and accuracy in every report he issues including, may I say, his Annual Report which is subject to scrutiny by the Public Administration and Constitutional Affairs Committee (PACAC). It is now fair to say that, if the Ombudsman is prepared to conduct himself in this way in one case, he is prepared to behave in the same way in other cases to users of his service whether they are a complainant or respondent. The very credibility of the Ombudsman is at stake and Mr. Behrens remains at the head of a discredited organisation as previously identified in the Patients Association report issued in 2015.
- Failure to comply with procedures for resolution
PHSO, on its website, issues guidance on principles of good complaint handling. The outset of this document clearly states; “We will also apply the Principles to any complaints made to us about our own service”. Section 5 covers points to consider when deciding an appropriate level of compensation. These are:
- The nature of the complaint
- The impact on the complainant
- How long it took to resolve the complaint
- The trouble the complainant was put to in pursuing it.
PHSO guidance goes on to say; “Remedies may also need to take account of any injustice or hardship that has resulted from pursuing the complaint as well as from the original dispute”.
The PHSO letter of 9thApril 2018 offered me £1000. There was acknowledgement I have suffered injustice and PHSO would have awarded this sum against the NHS Trust had his final report of 15thJune 2015 accurately reflected the treatment I received. The letter also offered, in addition, a token sum of £500 to cover PHSO’s own poor complaint handling, but this part of the offer failed to demonstrate how his own guidelines on compensation levels were taken into account. My reply dated 11thApril 2018, to the PHSO letter of 9thApril, was ignored and after a further six weeks I felt compelled to issue proceedings in the County Court. The proceedings were to be primarily concerned with the conduct of the Ombudsman and not his decision regarding the belated award he made against the NHS Trust which, due to the passage of time and the fact that the original report had not been withdrawn, made legal action against the NHS Trust impossible. Subsequent to the issue of legal proceedings, there was an arbitrary improved offer by PHSO to settle the matter for a total sum of £2000. Bearing in mind I had by now spent £205 on Court fees, this represented a real increase of £295 over the offer in the letter of 9thApril and still failed to show any compliance with his stated policy on points to consider in calculating financial remedy.
- The Court Action
My claim against PHSO, amounting to £4537, consisted of £3800 damages, £532 interest in line with Court rules and £205 costs. PHSO filed an acknowledgement of service with the Court on 12thJune indicating an intention to defend the claim. There then followed an astonishing sequence of events.
Despite the in house legal expertise at their disposal, PHSO failed to properly comply with Court procedure and, on 31stJuly 2018, the Court issued a Judgment in Default against PHSO ordering them to pay me the total sum of £4537. Feeling vindicated, I awaited settlement in accordance with the Court judgment but unaware this appalling organisation had yet to finish compounding my misery.
One must ask how PHSO allowed the Judgment in Default to occur. Their next step was to apply to the Court to have it set aside and my original application struck out.
The first hearing was set for Telford County Court (small claims process) on 31stDecember 2018. PHSO engaged a barrister from 39 Essex Chambers. The Judge agreed the Judgment in Default should be set aside but gave leave for me to re-submit my original application with additional supporting evidence. There was no direction by the Judge at this hearing that the small claims route was not open to me to pursue my claim.
The second hearing took place at Telford County Court on 30thJuly 2019 with a different barrister from the same chambers representing PHSO in front of a different Judge. This time, the Judge ruled he had no jurisdiction to hear the case and the application by PHSO to have the matter struck out was successful. However no costs were awarded.
The evening before the second hearing, an email timed at 1859 hours 29thJuly (just 15 hours before the appointed hearing) was sent to me by an in house lawyer of PHSO. The email reads; “On reviewing the documents in your case we note you have referred to a statement dated 10 November but we are unable to trace this. Could you please send a copy of that statement by email before the hearing tomorrow”.
I complied with the request. However, it raised further issues. 153 pages of evidence PHSO should have been considering before the first hearing accompanied my statement of 10thNovember 2018. I was also concerned that significant personal data had now gone missing. PHSO have since provided proof to my satisfaction they have the data and issued yet another of their insincere apologies, the total number of which now runs into three figures, each becoming less meaningful than the last.
I seek your re-involvement and have two requests:
- That you write to the Acting Chief Executive of Shrewsbury and Telford NHS Trust, enclosing this letter and the letter of 9thApril 2018 signed personally by the Ombudsman, Mr. Behrens. Your letter should invite her to return the PHSO final report dated 22ndJune 2015 to him. That action alone will at least demonstrate some integrity exists within the Trust and that the new Acting CEO is not prepared to be part of what can only be described as a PHSO cover up which has taken me over four years to expose. I can confirm the Trust is at no risk of legal action from me. My reason for initially going to PHSO was to avoid having the issue of my treatment dealt with at Court.
- That you personally meet with Sir Bernard Jenkin, Chair of PACAC, and discuss the ramifications of this case with him. You should also hand him the complete file of case papers in order to demonstrate that, despite the scrutiny of PACAC, nothing has yet changed for the better within the PHSO framework. The fact that Mr. Behrens is quite prepared to leave in circulation a final report he has identified as inaccurate should be enough for Sir Bernard and Mr. Behrens to consider whether his position as Ombudsman and also the position of his Chief Executive remain tenable. I am quite prepared to accompany you at such a meeting. I do not expect this matter to be sidelined citing previous comments of Committee Clerks in correspondence that PACAC does not look at individual cases. PACAC has done so in the past and has taken oral evidence in some. The public might have a better Ombudsman Service if PACAC takes a greater interest in individual cases in the future.
I do have to say that, having personally attended the last scrutiny hearing of PHSO by PACAC in January 2019, I was disappointed to see the session lacked understanding, depth and incisiveness, particularly as so many people had made written submissions and also took the trouble to attend. It is worthy of note that, despite Mr. Behrens refusing to engage with the co-ordinator of the support group PHSO-The Facts, at least fifteen new people have joined this group in recent months as a result of their experiences at the hands of PHSO. I have seen that PHSO seeks greater own initiative powers and yet resists greater oversight of its work, stating this would undermine the authority of the Ombudsman. This must be resisted if a PHSO “mini dictatorship” within our democracy is to be avoided. It is clear the process of peer review and PACAC scrutiny is not bringing improvement and a wider, independent public enquiry into PHSO must now be carried out.
There is one final comment I wish to make and that is in relation to the offence of Misconduct in Public Office (MIPO). If in the event Mr. Behrens or any other person makes a suggestion the Police have found no evidence of misconduct in public office within his organisation, I have to point out that would not be an accurate statement. Letters in my possession from the Metropolitan Police indicate that, according to legal advice they have received, they are prohibitedfrom conducting investigations into PHSO of MIPO by virtue of the legislation controlling the operation of PHSO. That is not the same as saying MIPO has not taken place. This is also something for PACAC to consider and address as it leaves all employees at PHSO immune from prosecution in the event of any willful or deliberate misconduct on their part.
PACAC should be asking the question as to whether it should be necessary for the sledgehammer of a Judicial Review to be sought to crack what was, in this case, a miniscule peanut of two parties being £1800 apart in their positions regarding compensation.
I see no point in your writing to Mr. Behrens again as he ignored your correspondence in 2015 and much of mine in the intervening period. I await your response, asking you to send me a copy of any letter you write to the Acting Chief Executive at Shrewsbury and Telford NHS Trust. Bearing in mind this is an open letter I intend to circulate widely, I will be pleased to also circulate your response to it. It is clear from this case PHSO maintains its ability to fail at every level be it investigative, administrative, legal or executive.