Analysis by David Czarnetzki – PHSO the Facts
For the last seven years, since making my initial complaint to PHSO about my medical treatment, my MP and I have remained on cordial terms, even through points where we have sometimes disagreed.
Recently, he sent me a very interesting factsheet about the Health and Care Bill now going through the Committee Stage in parliament. Intrigued, I decided to take a look at the current wording of the Bill itself, particularly as it relates to the setting up of the Health Services Safety Investigation Branch (HSSIB).
The proposed bill is a hefty piece of legislation and the formation and role of HSSIB is contained in Part 4.
Section 94 defines what will count as a qualifying incident for an investigation, but it also does NOT permit HSSIB to assess or determine:
- Civil or criminal liability
- Whether action needs to be taken in respect of an individual by a regulatory body
Section 96 gives authority for the HSSIB to publish its own criteria, principles and processes for investigations. The processes are to ensure that, so far as reasonable and practical, patients and their families are involved in investigations.
Crucially, the words reasonable and practical are not defined so the first question is who makes that decision? Not likely to be patients and their families I fear.
Sections 97,98 and 99 deals with the way final, interim and draft reports are submitted and circulated. However it is Section 101 in which it states these reports are NOT admissible in the following proceedings unless sanctioned by the High Court:
- Determining criminal or civil liability
- An employment tribunal
- Before a regulatory body (such as the GMC)
- Any appeal regarding the above
Section 102 gives HSSIB Inspectors wide powers of entry, inspection and seizure of documents. However, sub section (1)(a) specifically prohibits entry into private dwellings and with recent developments in home working, this could be a flaw.
Several other sections to create powers, offences and penalties, but Section 110 provide a list of organisations HSSIB must co-operate with where investigations overlap.
One such organisation is the Parliamentary and Health Service Ombudsman (PHSO)
I cannot see the Local Government Ombudsman (LGO) on the list. There may be a reason for this, but am I not correct that the LGO ‘investigates’ care complaints?
There is always one point to remember when legislation is proposed and that is the consequence on existing legislation.
It is proposed Schedule 15 of this billwill amend Schedule 2 of the Parliamentary Commissioners Act 1967. This will add HSSIB as an organisation that can be subjected to PHSO investigations.
So here then, is the conundrum: Section 110 requires HSSIB and PHSO to enter into co-operation arrangements where investigations overlap, yet in Schedule 15, HSSIB will be under the jurisdiction of PHSO if a complaint is made about them.
What can patients and their relatives now expect? Will there be ‘buck passing’ between HSSIB and PHSO? Will it have any effect on reducing the clinical negligence claims? Will it improve patient safety? Will it lead to more bad clinicians being subjected to regulatory sanction? Will it lead to greater openness, transparency and accountability for the public? Above all, will HSSIB have adequate funding? I very much doubt yes will be the answer to any of these questions.
I would be very happy for any politician to tell me my interpretation of this bill, as currently drafted, is wrong and the reason why. If Ombudsman reform was part of government joined up thinking on this matter, transferring ALL Health and Care complaints from PHSO and LGO to the HSSIB, there would be no need for scruffy legislation which, on one hand, makes HSSIB co-operate with PHSO over investigations and then, on the other, makes PHSO the investigative body into HSSIB.
So which organisation is to be the poacher and which the gamekeeper? It seems it could be both but probably will be neither. My message to politicians is the more ‘arms length bodies’ with overlapping function you create, the more sit on your shoulders of responsibility.
Thank you for reading this blog. All constructive comments welcome. This issue is going through parliament NOW.
If you also have concerns about the flaws in this legislation, do write to your constituency MP and perhaps share this analysis with them. I am happy to email a copy to any group member on request. They might well be relying on the factsheet circulated rather than examine the detail and its impact.
Your summary refers to Sir Bernard Jenkin’s work on the establishment of HSSIB, the preliminary work for which was undertaken when I was a Health Minister, and the statutory underpinning for which is included in the Health and Social Care Bill which had its Second Reading last week. I hope you will study this with interest, as it delivers a body independent of the NHS and Government, to investigate in future cases which impact patient safety, to learn from and prevent recurrence of mistakes arising in healthcare settings to give greater confidence to the public. You can find a summary here: https://www.gov.uk/government/publications/health-and-care-bill-factsheets/health-and-care-bill-health-services-safety-investigations-body