We learnt here that Ombudsman Rob Behrens was particularly miffed at the newly drafted legislation which left him outside the ‘safe space’ model used by the Health Services Safety Investigations Body .

Sir Bernard Jenkin, was instrumental in setting up the initial Healthcare Safety Investigation Branch (HSIB) in 2017 in response to a series of health scandals and lack of confidence in the PHSO investigation process. He made the following statement in 2016 as part of his call for legislation to make the new body independent of the NHS in what appears to be a genuine attempt to improve patient safety.

“Following Francis on MidStaffs, the Morecombe Bay inquiries, dissatisfaction with PHSO’s NHS investigation role, and the rest, HSIB will prove to be the biggest single step this government will make to change the culture of the NHS. 

https://committees.parliament.uk/committee/327/public-administration-and-constitutional-affairs-committee/news/101759/healthcare-safety-investigation-branch-new-legislation-needed-to-make-effective/

The proposed Health and Care bill reinforces the importance of ‘independence’ stating that;

Independence as a concept is fundamentally important to HSSIB as it will be a crucial way of ensuring that patients, families and staff have trust in its processes and judgements. 

https://www.gov.uk/government/publications/health-and-care-bill-factsheets/health-and-care-bill-health-services-safety-investigations-body

This rather suggests that existing systems, such as the Ombudsman, lack independence and consequently are not trusted by patients, families and staff.

Being shut out of the safe space zone wasn’t the only blow for Mr Behrens. He also found himself excluded from NHSE investigations into serious concerns at University Hospitals Birmingham (UHB) Here he is on Newsnight (14th March 2023) going public on the matter.

15.3.23

This is an extraordinary act on the part of the Ombudsman, so close to his retirement (knighthood?) in March 2024. He casts serious doubt on the ability of NHS England to carry out clinical reviews.

In those early days, after we triggered our concerns, we were told by NHS England that we would be invited to participate into the second of the reviews and subsequently that invitation was withdrawn. And my concern is, a general concern, that the NHS is not good about commissioning independent reviews to make sure there’s proper learning from what has happened and I need to be reassured that in this case, that is not also the case. But I’m sceptical.

https://youtu.be/QKKvEtR8Ip0 4:35

The phrase ‘a general concern’ indicates that it is not specific to this investigation. That NHS England generally fails to carry out reviews that ensure proper learning. So why hasn’t he spoken out before?

He also draws attention to his own lack of power by hitting back via Newsnight. This serves to lift the veil of public confidence, which is always a dangerous option.

It must be particularly galling for Behrens to be frozen out of these reviews when it would appear that he was first to raise the alarm when he issued the Emerging Concerns Protocol in August 2022.

Although he was concerned about patient safety at UHB some seven months earlier, it wasn’t until March 2023 that the Ombudsman started to put statements into the public domain via the PHSO website. Those of us who have first-hand experience of the Ombudsman’s investigative services can only wince at the following statement.

Rob Behrens said: “I’m extremely disappointed that NHSE denied us the opportunity to contribute to its review. It’s hard to see how the review can be evidence based if it doesn’t consider all the evidence. It raises real concerns around the completeness and transparency of these reviews.

https://www.ombudsman.org.uk/news-and-blog/news/ombudsman-extremely-concerned-about-culture-university-hospitals-birmingham

The protocol allows professional organisations to share information that would otherwise be confidential but his offer of assistance was rejected. Angry and insulted he has become chief whistleblower.

In the Newsnight interview Behrens spoke about ‘examining hundreds of cases’ with an example of ‘avoidable deaths’ and stated that his primary concern was about the lack of cooperation and learning at UHB, where his draft findings were rejected leaving serious patient safety concerns. The following chart is an amalgamation of data provided on the PHSO website from 2019 – April 2022 for UHB. It does show that hundreds of complaints have been made to the Ombudsman, but only a fraction of them were investigated or upheld.

On the surface, this data does not indicate an NHS Trust in crisis. It would be helpful to examine some upheld cases to put his concerns into context. Investigation reports are published on the PHSO website, but not all cases are made public and there is a time lag in releasing completed cases. Here are two examples, accepting that there may be others that have not been identified due to limitations in the search function.

The recommendation in the first case is simply to pay compensation of £250 to Mrs O. 

we recommend the Trust should pay Mrs O £250 in recognition of the distress she suffered due to not being given adequate support towards the end of her husband’s life.

Mrs O had complained about a lot more issues, such as her husband suffering paralysis from the waist down following radiotherapy to relieve cancer pain. She said that neither of them had been informed that this could be an outcome. It led to her husband losing his dignity and independence as well as increasing the pain. He caught Covid-19 while in the hospital and was discharged in April 2020 in a bad way and without oxygen. He was so poorly it was necessary to readmit him in the early hours. He died in hospital a week later. There are some serious concerns here but PHSO did not uphold any of these complaints. It is difficult to see why UHB would aggressively block such findings and refuse to cooperate when the Ombudsman could have determined far greater harm had been caused.

In the second example, Ms X complained about the care of her elderly mother Mrs X. She was in hospital between January 2019 and April 2019. In that time she suffered severe weight loss and loss of appetite. Although informed that her mother was partially sighted on admittance it took a second reminder in February for the Trust to take action and provide a ‘red tray’ indicating issues with feeding. She was not referred to the nutrition team until the 1st of March. The family complained that her weight was ‘estimated’ and not measured, that she was not provided with the nutritional supplement Fortisips and there was no review before her discharge to a community hospital. The mother also suffered from a pressure ulcer on her right heel which increased in severity due to lack of proper care. This caused reduced mobility and an increase in care costs following her return home.

An internal hospital investigation found the following;

On 6 February tissue viability staff carried out a root cause analysis (RCA) for the grade two pressure ulcer Mrs X had developed on her right heel. An RCA is a tool to help identify and address the root causes of an undesired outcome. The RCA report documents Mrs X had developed a grade two ulcer on her right heel and this had ‘deroofed’ (the external layer of skin was no longer in place). It noted there had been gaps when staff had not carried out skin inspections, that staff had not completed a pressure ulcer prevention plan, and staff had provided equipment to prevent a pressure ulcer too late. Following this, staff referred Mrs X to its podiatry team, and recommended providing absorbent dressings and pressure relief.

In this instance, PHSO recommended an action plan be drawn up and as a level 3 injustice, awarded a payment of £950 to Ms X in recognition of the impact on herself and her family.

These cases look like business as usual for PHSO, so what else was happening in August 2022 that could have prompted the unprecedented actions of the Ombudsman?

On 22nd August 2022 CQC issued two fixed penalty notices against UHB for failure to obtain consent from a patient who used sign language to communicate. The trust was fined £8,000 for three breaches. Then around the start of September 2022, Newsnight began an investigation into the trust following approaches from whistleblowers. 

From the Youtube banner which was released on 15th March 2023.

Newsnight focussed its investigation on statements from doctors, governors and hospital insiders to reveal a toxic culture affecting patient safety. It was the first Newsnight report in December 2022 that triggered the launch of three NHS England reviews into the troubled trust. Without the forthcoming media investigation would the Ombudsman have triggered his Emerging Concerns Protocol? It is clear from the Newsnight reports that this scandal was years in the making, yet Behrens was silent in 2019/20 when the Ombudsman actually upheld the most complaints. Should he have spoken out sooner?

In June 2022, just three months before the Newsnight investigation started, two clinicians who worked at the Trust committed suicide. One left a suicide note citing the working environment at the Trust as the sole reason.

A junior doctor left a suicide note blaming her death entirely on the hospital where she worked.

Vaish Kumar, 35, who was based at Birmingham’s Queen Elizabeth Hospital (QE), said in the letter shared by her parents the working environment “just broke me”. She died in June and an inquest heard she told paramedics shortly before she died not to take her to the QE. The trust running the hospital said it needed to learn from her death. In the note to her mother, Dr Kumar said her mental health had declined while working at the QE and she was “now a nervous wreck”.

The letter, which the family tried unsuccessfully to submit as evidence on the day of the doctor’s inquest, ended: “I am sorry mum, I can blame the whole thing on the QEH.” 

https://www.bbc.co.uk/news/uk-england-birmingham-64333162

Another, an anesthetist, mysteriously disappeared.

Heartfelt tributes have flooded in for NHS and Army doctor Andrew Haldane, who went missing after leaving work at Birmingham’s Queen Elizabeth Hospital(QE). Police searching for missing Lt Col Haldane found a body in remote Worcestershire countryside yesterday (Wednesday, June 8).

https://www.birminghammail.co.uk/news/midlands-news/tributes-flood-queen-elizabeth-hospital-24181938

The assumption is that he took his own life but the article did not mention a suicide note.

The most suspicious death occurred in August 2018 when a locum Eduard Zigar, from Lithuania, was found hanged in a cupboard at the hospital.

Dr Zigar’s parents travelled from Lithuania for the hearing. His mother, Julia Zigar, told the court her son was a “tolerant, loving person who loved life”. She said he texted her every day and was due to return home to Lithuania the week after he died. “He showed no signs of unhappiness and had never spoken of killing himself,” she said. “He was extremely religious and suicide is not acceptable in our religion.” Mrs Hunt recorded a conclusion of suicide.

https://www.birminghammail.co.uk/news/midlands-news/doctor-eduard-zigar-killed-himself-15581344

It is clear that junior doctor Vaish Kumar did not feel she could speak out in the ‘toxic, mafia-like’ environment and took her own life to draw attention to the crisis at the Trust. The young locum, however, due to return home, had nothing to lose from speaking out. What did Zigar witness in his short time at the hospital (less than one week) and what did he intend to do with that information? These deaths reveal a ruthless culture operating at the Trust and the death of Mr Zigar in particular, calls for a public inquiry.

The Ombudsman complains that he is being sidelined, but his investigative evidence does nothing to reveal the true horror at UHB. His increasingly low uphold rate (1.3% in 2021/22) has made him irrelevant in terms of patient safety, which is why we need a body such as HSSIB.

He has surely brought this on himself and collaboration with his International Ombudsman Institute (IOI) chums to put pressure on government will not have been well received. The more he moves in international circles, the more he is being frozen out in the UK.