By David Czarnetzki

Once the Public Administration and Constitutional Affairs Committee (PACAC) published the written evidence submitted ahead of the annual scrutiny of the Ombudsman held on 14th November 2023, I became curious, bearing in mind the level of public criticism, why so much of the evidence published was positive.

How could this be I asked myself? I selected the supportive evidence of the Continuing Healthcare Alliance for closer examination. I confess I had never heard of the Alliance which is, in fact, an Alliance of 20 charities, some very high profile and well known, including the Patients Association. A full list of the charities can be seen here.

My enquiry with the Alliance steering group revealed they had been directly contacted by the Ombudsman and informed there was a call for evidence to PACAC. This prompted me to make a Freedom of Information request to the Ombudsman asking who else had been contacted.

I found the result surprising. The full list of organisations the Ombudsman directly contacted was:

Professional Standards Authority

NHS Resolution

Care Quality Commission

Victim’s Commissioner for London

Healthwatch England National Voices

Law Society

Ombuds Academics

Housing Ombudsman

Dutch Ombudsman

South African Health Ombudsman

Israeli Ombudsman office

Western Australian Ombudsman (International Ombudsman Institute)

Greek Ombudsman

Ukraine Ombudsman office

Scottish Ombudsman office

Northern Ireland Ombudsman office

Welsh Ombudsman office

Local Government and Social Care Ombudsman

Ombudsman Association

Healthcare Safety Investigation Branch

General Medical Council

Independent Monitoring Authority

Nova Scotia Ombudsman

Ontario Ombudsman

Catalyst Stockton on Tees

Caribbean and African Health Network

Irish Ombudsman

Doctors of the World

Gyros

Equality Trust

Refugee, Asylum Seeker and Migrant Action

Leeds Hospital

Food Standards Agency

Baby Lifeline

Parkinson’s (co-ordinator of Continuing Healthcare Alliance)

Beacon CHC

Tenant Street Medical Practice

HMRC

Barts Health NHS Trust

Department for Transport

NHS England

Medical and Dental Indemnity Protection UK/MDDUS

National Academy for Social Prescribing.

16 of the 45 organisations (those highlighted in bold) submitted written evidence to PACAC. Of the 45 organisations, 16 were UK and International Ombudsmen themselves and it is clear Mr. Behrens, in his final year at PHSO, wanted to leave PACAC with the best impression possible regarding his tenure.

Within the PHSO Freedom of Information response, this direct contact with the Organisations being explained as:

“PHSO flagged the launch of PACAC’s inquiry to stakeholders where we have live working relationships, who are therefore well placed to comment on our operations in 22/23. We notified the stakeholders of the inquiry via our working contacts. The communications were all sent out during the week of 22 September 2023”.

I question whether these “stakeholders’ were ‘well placed’ to comment on PHSO operations. For all complainants in the PHSO system, no such personal attention or invitation by PHSO to express a view to PACAC as to their opinion of the service. The public has to be alert to the call for evidence issued by PACAC themselves.

Where individuals and organisations submitted evidence without invitation, their contributions were more critical of PHSO, with 18 negative submissions from a total of 38. It is noticeable that CEDAWinLAW (evidence ref HS0018), The WASPI Campaign (evidence ref HS0023) and The Adam Bojelian Foundation (evidence ref HS0039) who were all critical of the service provided, were not invited to submit despite being ‘stakeholders with a live working relationship’.

The Adam Bojelian Foundation evidence which described first-hand experience of using the Ombudsman service, chimed succinctly with other critical contributors.

“The AdsFoundation has received several inquiries at its pro-bono clinic from Complainants to the PHSO, all who report negative experiences with the PHSO. Most are disabled themselves or family members of disabled patients, both child and adult and/or frail elderly patients. Several complaints concern the events leading to the death of their loved ones. Our managing director also has personal first-hand experience as a Complainant to the PHSO concerning the circumstances of Adam’s last months and weeks of healthcare.“

“Several themes emerge from accounts given at the AdsFoundation pro-bono clinic and our managing director’s personal experience, suggesting reform of the PHSO is needed. Disabled and frail elderly patients in particular, seem to be poorly served. The PHSO and its specialist advisors seem to too often repeat the same errors specially making prejudicial assumptions and presumptions, which the Complainants believe harmed (and in some cases contributed to the death of their loved one) and led to a complaint to the PHSO being necessary. PHSO findings expressly state that poor care is to be expected and is acceptable for disabled patients with long term health conditions, alongside good care.“

On 4th March 2024, PACAC published its scrutiny report and I was particularly drawn to the conclusion in paragraph 10 on page 29:

“We renew our call for legislative reform of the PHSO, the principle of which enjoys widespread support among stakeholders and the ombudsmen that would be directly affected….. Reforms are long overdue and we do not agree with the Government that this is not an urgent issue; rather it has been neglected too long and further delay is no longer tenable. The Government should consider its position on reforms and set out its plans ahead of the general election. It should consult with a wide variety of stakeholders, including different ombudsmen, parliamentarians and PHSO service users. All political parties should include a commitment to reforming the legislation relating to PHSO in their upcoming manifestos ahead of the next General Election, coupled with a commitment to introduce such legislation early in the next Parliament”.

PACAC call on government for urgent reform of the Ombudsman service.

The complaint-handling landscape is complex and difficult to navigate. For instance, making a complaint regarding the Department of Health and Social Care is a trap for the unwary. Firstly, if it is a health complaint, it will follow a lengthy process at the service provider level before eventually landing on the desks at PHSO which has an appallingly low uphold rate. Secondly, Social Care complaints go to the Local Government and Social Care Ombudsman with some complaints inevitably falling between the two.

We can add investigative and advisory organisations to the mix such as:

Care Quality Commission,

Healthcare Safety Investigation Branch

Healthwatch England

Patient Safety Commissioner

General Medical Council

Nursing and Midwifery Council.

Clinical staff who highlight safety concerns are frequently ostracised by the organisations that employ them and several have faced dismissal. Investigative Journalist, David Hencke, in his blog at Westminster Confidential, has reported several cases.

The fundamental problem is that complaints are seen as something to be handled as opposed to investigated. PHSO themselves refer to “complaint handling”.

PHSO The Facts have shared our concerns with the Continuing Healthcare Alliance regarding their submission and have met remotely with their steering group. We hoped they would also push for reform of this body which is clearly failing thousands of people every year but their final response, received on 7th June stated:

“We discussed with other members of the Alliance your request to review progress against the recommendations in appendices 1 and 2 of the Patients Association 2016 report on the PHSO to ascertain whether any improvements had been made and whether any other issues had emerged. Upon discussion, the Alliance concluded that this request is beyond the scope of the Alliance, the focus of which is specifically on issues related to NHS continuing healthcare. The Alliance is therefore not in a position to take forward your request”

You may or may not agree, but I do find it rather surprising that an alliance of 20 charities was content, to submit supportive written evidence to PACAC, yet do not consider supporting the voices calling for change, including those on the Parliamentary Committee. It is all the more surprising that it was a member of the Alliance, the Patients Association, who highlighted the issues in 2015. Contrary to the response of the Alliance, I would contend the remit of the Patients Association is wider than ‘continuing healthcare’.

To all the organisations who took up the invitation to submit evidence to the committee, I would urge you to look beyond reputation management and delve into the real world of complainants as the Adam Bojelian Foundation did. Your time could be better spent pursuing the recommendation of PACAC for reform of PHSO and wider reform of the whole NHS and Social Care complaints system. It needs to be placed under one body with real teeth to deal with the ‘cover up’ culture identified in numerous inquiries, such as Morecambe Bay, Mid-Staffs, Shrewsbury and Telford to name a few.

It will be interesting to see if Rebecca Hilsenrath, Acting Ombudsman since 1st April 2024, also calls for reform. Her predecessor Rob Behrens advocated change on page 9 of his evidence to PACAC.

“We remain disappointed but resolute that, despite our efforts in raising this issue, Government continues to reject recommendations from PACAC, the Venice Commission, and others to improve public service Ombudsman schemes. Further delay undermines justice for citizens whilst also limiting the potential impact, quality and value for money of taxpayer-funded public services. It is imperative that a commitment is made to Ombudsman reform now to ensure that England and the UK is not left further behind and that access to justice and public accountability are improved.“

It is difficult to see how this will ever be achieved if PHSO fails to get support for reform from its many stakeholders. Bland statements of approval simply serve to maintain the status quo.