Just as we come to the end of the 5-year strategy of restructuring under Dame Julie Mellor the new Ombudsman, Rob Behrens, announced this week the launch of a 3-year ‘back to basics’ strategy for the Parliamentary and Health Service Ombudsman (PHSO) Before we explore the new package of promises bear in mind that PHSO is 50 years old. Enough time for 16 previous 3-year strategies to iron out any wrinkles in procedures. Also, take into account that Rob Behrens has to pull off some kind of miracle to deliver any change given that PHSO will suffer a 24% cut in funding, they have lost 70 experienced staff in the move to Manchester and taken on at least 25 new (untrained) recruits to fill the gaps and to top it all they are presently working with a significant backlog of cases waiting for assessment, investigation and review. Against this backdrop, Mr Behrens is promising to make PHSO an ‘exemplary ombudsman service’. Will this new strategy help to ‘manage our expectations’ or promise more than it can deliver? PHSO Strategy 2018 -21
Our strategy 2018-21
Delivering an exemplary ombudsman service
We want to be an exemplary ombudsman service – one that continually learns from the best of what others are doing, while contributing to improvements elsewhere across the public sector and the wider ombudsman sector. We also want to continue building public confidence and trust in our service. While the PHSO Service Charter tells us that a significant majority of people who come to us say they get a good service, we know that too many think this is not the case and there is more we must do to address this.
To improve the quality of our service, while remaining independent, impartial and fair
We will introduce new ways of working that resolve cases more quickly, improving both the quality and timeliness of our decisions and the overall experience of people making complaints.
We will invest in our staff so they are equipped to deliver a professional casework service that remains sensitive to the complex, often tragic, issues that are brought to us.
To increase the transparency and impact of our casework
We will publish more information about our casework online to help improve public services, while enabling complainants, the public and organisations we investigate to have confidence in what we do.
We will target our insight reports so that important lessons from our casework and systemic reviews contribute to raising standards in public services.
To work in partnership to improve public services, especially frontline complaint handling
We will strengthen our relationships with other ombudsman services, and collaborate with others to improve how the public sector responds when things go wrong, from sharing good practice to offering training to complaint handlers.
Drawing insights from our casework, we will work with those best placed to apply the lessons learned to improve public services.
Well, he did say to HSJ that he wanted to ‘get back to basics’ and these three objectives (as in targets to achieve) represent nothing more than the core function of any Ombudsman service. Did the management at PHSO considered the outcomes of the previous strategy before they started ‘going backwards’? Here is a summary of the 2013/18 5-year strategy with the ambitious title of ‘More impact for more people’. our-strategic-plan-2013-2018-delivering-more-impact-more-people
So there we have it. PHSO has only just completed overhauling its investigation model, setting high standards and improving productivity. Working with stakeholders and parliament to ‘shine a light’ improve complaint handling and save money along the way. So confident were they back in 2013 they gave the following prediction of success. This must be a great starting place for Mr Behrens, lucky man.
If more evidence of success were needed we can see from the much valued ‘Service Charter’ data that using these improved investigation models PHSO is able to make an impartial decision 100% of the time. Hard to improve on perfection so why does Mr Behrens feel the need to effectively negate the last five years of progress by restructuring the restructuring?
Certainly, some of the staff at PHSO feel that the continual imposition of new strategies is the very thing which prevents them getting on with their work.
There are of course some advantages to having ‘a never-ending change programme’, it means that when criticism comes your way you can promise that improvement is just around the corner and ask for patience as you put in place the glowing rhetoric of your current plan. The jam tomorrow message has worn pretty thin with those of us who have been following the ups and downs, well mainly the downs of PHSO since 2012.
But perhaps we are being unfair to Rob Behrens. He has introduced some radical new ideas. If we can just wait until 2020/21 we can all benefit from the new ‘mediation’ service for early intervention and know that staff working on our complaints are fully ‘accredited’.
In 2020-21 we will:
- Begin accreditation of caseworkers.
- Evaluate mediation and other dispute resolution pilots, implementing the most successful as part of our new ‘Ombudsman toolbox’.
- Build the approach from our pilots into our training and accreditation programme, so staff are fully equipped to use these methods.
These new tools for the PHSO toolbox require pilot studies and new measures to be created to assess success. This could take a lot longer than 2021 to be up and running particularly as PHSO has still to find a body willing to provide the accreditation. Still fifty years of muddling through without the core functions in place (apparently) what harm in taking the time to get things right?
Dame Julie Mellor, despite her grand 5-year strategy, failed to deliver in all respects. She presided over a huge backlog in casework performance, a dramatic fall in employee satisfaction, financial scandals at PHSO and resigned early from her post having acted inappropriately when informed that her Deputy Ombudsman Mick Martin had been named in court proceedings and was found to have colluded with a colleague to cover up a valid complaint whilst working in the NHS. She simply lurched from one crisis to another. how-do-you-solve-a-problem-like-dame-mellor
Consequently, both the Ombudsman and Deputy Ombudsman left the service before seeing the fruits of their labour. But what exactly was the legacy left for Rob Behrens to inherit at the end of her five-year change programme? A look at the last published Board Minutes for PHSO gives us some idea of what is going on behind the scenes and it doesn’t look good.
From September 2017 (latest published) we can see the following issues:
On the staffing issue, Amanda Campbell CEO confirmed the loss of 70 staff fro,m the London office.
9.6 Amanda Campbell acknowledged that staff had felt let down by the slow pace
of consultation and change. However some difficult decisions had been
made and only eight compulsory redundancies had been necessary, from a
reduction in staffing of over 70 posts.
Having survived the ‘cull’ there are issues with staff engagement.
9.10 The Board discussed the contents of the report. Ruth Sawtell said that it had
been disappointing to see the fall in staff engagement reported in the June 2017 pulse survey.
Amanda Campbell said that the survey had been taken in the middle of the collective consultation period at a time of maximum uncertainty. However a significant change was not expected in the October 2017 survey, as transition was still underway.
Always look on the bright side Amanda but you need to take the staff with you when sharing your vision of an exemplary Ombudsman service.
9.3 Amanda Campbell advised that there were now many changes happening
simultaneously and quickly. She said she wished to assure the Board that PHSO recognised and were managing the volume of activity across the organisation.
9.8 Amanda Campbell recognised that communications with staff about the change programme had been poor. As a result of this a weekly cascade was now in place that had received positive feedback from staff.
Oh dear, not managing change well was the same complaint from staff under the previous Ombudsman. Referring to the ‘training programme’ which is essentially the key to all the improvements put forward by Rob Behrens there was this comment.
9.12 Jon Shortridge commended the training programme but said that it must go beyond a ‘sheep dip’ approach. Amanda Campbell reported that, following the training, experienced staff should continue to support new staff. Staff were integral to the design and delivery of training, which was modular and was aimed at meeting the range of different needs. The training would eventually lead to accreditation.
No mention here that PHSO had just lost 70 experienced staff and taken on at least 25 new recruits in Manchester as their replacement. So the experienced staff must meet their targets to get the backlog down whilst supporting new arrivals who had received their ‘sheep dip’ training. However, it was recognised by Ms Campbell that the training of new recruits and the re-training of all current staff would have an impact on the backlog.
11.4 Unallocated assessments and investigations had both risen significantly since the end of Q1 and were likely to increase further as caseworkers were taken offline for training. Amanda Campbell tabled a chart showing projections that by the end of the business year there would be 788 unallocated assessments and 567 unallocated investigations. (A copy of the table is attached to these minutes at Appendix 2). The numbers would then reduce gradually, with assessments projected to be at or close to zero by August 2018, and investigations to be at or close to zero by December 2018. These projections were based on a mitigation agreed by the Executive Board on 27 September 2017, to recruit 25 caseworkers above establishment.
One minute it all relies on staff who are professional to accredited standards and the next it is deemed by the Board perfectly acceptable to take 25 people with no experience and with minimum training and have them manage complex cases where the complainant has already had a significant wait. Perhaps the following statement reveals how PHSO management ensure that staff (new and old) caught in the trauma of reallocation and restructure perform to a given target.
9.13 Julia Tabreham expressed concern about the reported rise in bullying in the pulse survey. Amanda Campbell replied that there was no increase in staff saying that they had personally experienced bullying. Rather there was a perception of bullying through performance targets and the way the consultation had been managed. The trade union side had been asked to provide evidence of incidents of bullying, but no direct evidence had been received. There was perhaps a need to be more clear about what was meant by bullying and harassment.
Ahh, just a ‘perception’ of bullying and staff not realising what ‘bullying and harassment’ really is. Well if you feel bullied I guess you would call it bullying but management know best and seem to have the only dictionary of terminology that matters. The title of their policy on casework does suggest rather a heavy hand.
11.2 Amanda Campbell tabled before the Board an extract from a presentation first made by Rebecca Marsh to the Quality Committee on 14 September 2017, on ‘Driving the Quality of Casework at PHSO’. (The presentation is attached to these minutes at Appendix 1). The presentation set out a list of areas where it was perceived that there were quality issues, and identified actions planned for dealing with three of these areas: Thoroughness,
Communications and Clinical Advice. Elisabeth Davies said that this paper had been discussed by the Quality Committee, who had focussed on the potential quality impacts of the Target Operating Model.
‘Driving the Quality of Casework’ does sound pretty hostile, particularly when you bear in mind that there is a major problem at PHSO with the technology available to do the job.
13.14 ICT was now a RED risk. A number of issues had arisen which had the potential to impact on service delivery in future. Mitigations had been agreed and were outlined in the risk register. It was recognised that PHSO now needed to carry out a full review of the ICT structure, looking at the robustness of service provision and how the systems delivered the Corporate Strategy.
Poor things, they have yet to receive all the new training and wisdom brought to PHSO by a real Ombudsman, Prof Behrens CBE but already they are being ‘driven’ to perform without the IT systems to support their work. And what of Mr Behrens the real Ombudsman, how did he share his vision with the Executive Board in order to lead the way to an exemplary service. Only one statement in the entire meeting was assigned to the man himself and you can see it below.
10.5 Rob Behrens highlighted his series of engagement meetings with staff. These had been very productive and the output from the meetings would be fed into the strategic plan for 2018-21.
Now that sounds familiar. Mr Behrens regularly has ‘productive meetings’ even if no-one else agrees with him. Can’t possibly be his fault then that the sickness levels at PHSO have gone through the roof.
13.2 The Board were concerned that PHSO were very close to the sickness absence
target. Gill Kilpatrick said that PHSO were looking at this very closely to understand the trend.
Mmm, Board has no idea why staff are going off sick. Could it possibly be linked to rapid and repeated change, loss of experienced staff, lack of essential IT resources and a hostile working environment? They will have to ponder on that one.
Given this is the current state of affairs at PHSO it is difficult to have any confidence that the new 3-year strategy will be any more successful than the previous 5-year strategy. But the real benefit of a change programme is that it helps to boost public confidence and stops critics in their tracks by saying ‘we are doing something’.
PHSO – a continual journey towards excellence
which never arrives.
Members of PHSOtheFACTS put in 32 cases of Misconduct in Public Office to the Metropolitan Police. Misconduct in Public Office is an offence which enables the public to hold individuals to account when they commit offences in their role as a public officer. We discovered that the Crown Servants who work for PHSO have legislation which enables them to be immune from the law as ‘intended by parliament’
Key quotes from the Metropolitan Police Review.
“D.I Granville’s investigation found that Section 11 of the Parliamentary Commissioners Act 1967 effectively shields scrutiny of PHSO investigations unless they are being investigated for alleged offences of perjury or breaches of the Official Secrets Act.”
“This lack of ability to scrutinise coupled to a lack of transparency on the part of the PHSO effectively forestalls any effective investigation of PHSO activity. To date the situation has not changed nor is this likely whilst statute law provides the protection that parliament must have intended.”
The review letter in full.
The outcome of your complaint against police.
Firstly may I apologise for the delay in getting this reply back to you in a timely fashion. DI Deefholts, the assigned investigator completed their assessment by the end of January 2018. It was then sent to me as Professional Standards Champion for SCO1 Homicide and Major Crime and I thought I had sent the attached letter to you and accompanying report in February but from your recent email to DI Deefholts I had not so apologies.
This letter is in relation to your complaint where you stated that there was a:
Failure on the part of the Metropolitan Police Service to record or investigate your
allegation of crime specifically of Malfeasance / Misconduct in a public office on the
part of staff within the Parliamentary & Health Service Ombudsman (PHSO).
That officer(s) within the Police enquiry team have colluded and or conspired to
‘cover-up’ misconduct on the part of the PHSO
This investigation was taken by DI Deefholts. A report detailing the findings and conclusions of the investigation has been completed and is attached to this letter. The report findings and my decisions in relation to it, are based on the facts that were available during the investigation. In considering the content of the report I have made my decisions based on the balance of probabilities, which means an individual complained of will have a case to answer if the alleged behaviour/conduct was more likely to have occurred than not.
As Professional Standards Champion I have been delegated by the Commissioner of the Metropolitan Police to consider the findings and conclusions of complaint investigations to determine:
whether the report should be referred to the Director of Prosecutions (CPS);
whether or not any person to whose conduct the investigation relates to has a case to answer in respect of misconduct, gross misconduct or no case to answer;
whether or not any such person’s performance is unsatisfactory;
what action, if any, we will take in respect of the matters dealt with in the report; and what other action (if any) we will take in respect of these matters, which in this case is re-investigation of your original allegations, if original investigation was flawed.
I have reviewed DI Deefholts investigation and after considering these points I am satisfied to the extent of the investigation that has occurred and I also as a result agree with the findings presented by DI Deefholts in their investigation report.
As a consequence I have taken the decision that the report does not need to be referred to the CPS.
I can also inform you that I have determined there has not been a breach of the professional standards by any officer involved in the investigation considering the findings.
Furthermore, the Police Reform and Social Responsibility Act 2011 requires me to consider if the findings of any case relating to a public complaint warrants referring an officer to our Unsatisfactory Performance Process (UPP). Having reached the conclusion that I have, I do not consider that UPP is appropriate in respect of any of the officers concerned.
In addition to the points above I have also considered whether you received an appropriate level of service from the Metropolitan Police. This means how you were dealt with overall and not just by any one individual. After reviewing the circumstances of your complaint I am satisfied there has not been a failure identified in the way we dealt with you. Your 2 complaints are therefore not upheld.
When considering what actions should take place with any re-investigation of your original allegations. As stated in the investigation report, Section 11 of the Parliamentary Commissioners Act 1967 effectively shields scrutiny of PHSO investigations unless they are being investigated for alleged offences of perjury or breaches of the Official Secrets Act. Both your and a number of similar allegations, were submitted to the Metropolitan Police Department of Legal Services to review the legislation & took the advice of legal counsel who confirmed that as a Police Service we have no authority to investigate any further in the allegations that were made. These conditions remain so a re-investigation cannot be re-opened at this time.
We are grateful to you for raising this issue and giving us the opportunity to review the actions of those concerned. It is always useful to receive feedback on how our officers and staff perform; as an organisation it allows us to learn and develop and to identify ways we can improve our service in the future.
I appreciate you had complained to the IOPC (Independent Office for Police Conduct) originally who had sent your complaint to police to deal with. But if you do not agree with the outcome of this investigation or its findings you can appeal to the IOPC re this decision. The IOPC are the correct appeal body for your complaint as the initial information provided was such that criminal or misconduct proceedings are justified, where a complaint of this nature is proven. You have 28 days from the day after the date of this letter to make your appeal. The 28th day is 4/5/2018. Appeals received after 28 days may not be allowed unless there are exceptional circumstances.
If you do decide to appeal, this is the address to write to:
Independent Office for Police Conduct, PO Box 473, Sale, M33 0BW
Further information about how to appeal can be found on the IOPC website or can be phoned via 0300 020 0096.
Name Stuart Ryan
Rank/Grade Detective Superintendent Professional Standards Champion B/OCU SCO1 Homicide and Major Crime
Appendix G2 Not subject to special requirements
Investigating Officer’s Report
1. Complaint background
You allege that public officials within the Parliamentary & Health Services Ombudsman (PHSO) are guilty of malfeasance in public office. More specifically they failed to identify any issues of concern within the Mid Stafford Health Trust who were later found guilty of causing preventable deaths and of similar failings within their investigations of the Morcambe Bay NHS Trust where there were findings of avoidable deaths of mothers and babies.
I understand your allegation(s) of crime were forwarded to officers of the Metropolitan Police Special Enquiries Team (SET) for further investigation. I am advised that in July 2016 you were sent an outcome letter that explained the Metropolitan police service (MPS) where not able to investigate the practices of the PHSO as a consequence of statue law that prohibits disclosure of their records in all except cases of perjury and official secrets allegations.
On the 2nd of September 2016 you complained to the IPCC in relation to the outcome of the SET investigation. The IPCC passed your complaint to the Metropolitan Police Professional Standards Unit. You alleged that there was a failure on the part of the Special Enquiry Team to record and properly investigate your allegation(s) and that you were not routinely or adequately updated with any progress as set out within charter requirements.
Additionally that the MPS were part of a cover up to protect the PHSO. Det Insp Patrick Milford was required to investigate and in an outcome letter dated the 26th of February 2017 determined that the alleged crime had been recorded and investigated as far as was possible given the provisions of Section 11 of the Parliamentary Commissioners Act 1967 that prevents disclosure of PHSO investigations in all cases other then alleged breaches of official secrets and perjury. Failings in relation to poor contact were acknowledged and an apology offered.
You appealed to the Metropolitan Police Professional Standards Unit on the basis that the matters alleged were serious and not suitable for local resolution. This was upheld and the case was passed to me for re- investigation as a public complaint with a right of appeal to the IPCC on the basis that if proved Metropolitan Police Officers had colluded in a cover up the matter might amount to gross misconduct.
The following is my report dealing with the investigation of your complaint.
2. Complaint Allegations (All allegations must be listed – confirm how these have been agreed with the complainant)
I have set out the heads of the complaint, as detailed below, on the basis of the e-mail appeal you sent to the IPCC and on which the appeal was allowed as set out in PC Claire Johnston’s (Professional Standards Appeals Unit) lettered dated the 25th of April 2017. I sent these heads of complaint out to you in a letter e-mailed to you on the 17th of October 2017 and you responded on an e-mail dated the 6th of November 2017 agreeing those which are set out below.
Failure on the part of the Metropolitan Police Service to record or investigate your allegation of crime specifically of Malfeasance / Misconduct in a public office on the part of staff within the Parliamentary & Health Service Ombudsman (PHSO).
That officer(s) within the Police enquiry team have colluded and or
conspired to ‘cover-up’ misconduct on the part of the PHSO.
3. Person(s) Serving with the Police Subject of Complaint
I have considered the circumstances of the complaint made and consider that the alleged conduct subject of this investigation would not, if proven, justify the bringing of criminal or disciplinary proceedings. Therefore this investigation is not subject to Special Requirements because having conducted a scoping exercise I am satisfied that your crime was recorded and that written records exist to demonstrate the investigation was subject to scrutiny throughout. The allegation that there has been a police ‘cover-up’ appears to be based solely on the negative outcome of the Special Enquiry Team investigation in so far as their inability to investigate further must be as a consequence of a conspiracy to hide your alleged failing within the PHSO. There is no body evidence of evidence on which this allegation relies.
The following officers/staff have been identified as being subject of your complaint(s);
Detective Inspector Gail Granville.
4. Details of documents and accounts obtained during the investigation
The following items were considered during the investigation:
Your e-mail to the IPCC dated 02/09/16 giving notice of complaint & all subsequent e-mail correspondence.
Correspondence generated by Met Police Department for professional Standards scoping the general circumstances and responsibility for the investigation of your malfeasance allegation.
Correspondence between yourself and Det Insp Milford including his outcome letter.
Your E-mail giving notice of appeal against the determination of Det Insp Milford.
Correspondence from PC Claire Johnston’s (Professional Standards
Appeals Unit) lettered dated the 25th of April 2017 upholding your appeal
and her grounds for doing so.
Those parts of the Mid Staffordshire NHS Foundation Trust Public Inquiry that refer specifically to the PHSO.
Those parts of the report of the Morcambe Bay investigation that refer specifically to the PHSO.
There are no independent witnesses.
I have obtained accounts from the following officers/staff:
Detective Inspector Gail Granville.
B. Details of allegation(s) and investigation
Each allegation will be considered separately and will show whether it has been upheld or not.
Your allegation of malfeasance was recorded on crime report number 6535421/15. Your allegation was one of a number of complaints levelled at the conduct of the PHSO by other members of the public who were also dissatisfied at a perceived lack of service and / or diligence in the performance of their statutory duty to investigate.
In your e-mail to me dated the 6th of November 2017 you provided me with two internets links to inquiry reports as evidence in support of your allegation of malfeasance. I have reviewed those parts that relate specifically to the PHSO.
D.I Granville’s investigation found that Section 11 of the Parliamentary Commissioners Act 1967 effectively shields scrutiny of PHSO investigations unless they are being investigated for alleged offences of perjury or breaches of the Official Secrets Act. At the request of DI Granville the Metropolitan Police Department of Legal Services reviewed the legislation & took the advice of legal counsel who confirmed that as a Police Service we have no authority to investigate any further in this instance.
I have considered whether the enquiry reports, which you cite as evidence, might be sufficient to support a prosecution alone, on their own merit however I find that they do not. Though in the Mid Staffs NHS Foundation Trust Enquiry there was some criticism of PHSO investigative practice, namely a perceived over reliance on the clinical view presented by a Health Trust rather than seeking independent advice, this falls short of might what be required to prove malfeasance. This has to be considered in light of the fact that the Metropolitan Police investigation could not and cannot access PHSO investigation records in this or any other matter that might give some insight as to why an investigator chose to follow any particular line of enquiry or not as the case may be. This lack of ability to scrutinise coupled to a lack of transparency on the part of the PHSO effectively
forestalls any effective investigation of PHSO activity. There is no direct
evidence that any PHSO official has acted unlawfully nor do I have any grounds to suspect that is the case.
Please be assured that your case & the other similar complaints were considered at Command level within our organisation & further legal advice has been sought. To date the situation has not changed nor is this likely whilst statute law provides the protection that parliament must have intended.
Working on the balance of probabilities, the evidence available to me and in the absence of any to the contrary, it is my opinion that this allegation should not be upheld.
That officer(s) within the Police enquiry team have colluded and or
conspired to ‘cover-up’ misconduct on the part of the PHSO.
Det Inspector Granville assures me she had the investigation conducted to the highest professional standards. As set out above throughout the investigation she sought guidance from the Metropolitan Police Legal Services Department who engaged Queens Counsel to advise on the law governing the activities of the PHSO. Throughout the investigative process there was supervisory oversight and periodic management meetings.
DI Granville has confirmed to me that she has nor ever had any personal interest(s) within the PHSO that might affect her objectivity and / or decision making processes.
Working on the balance of probabilities, the evidence available to me and in the absence of any to the contrary, it is my opinion that this allegation should not be upheld.
C. Findings and Conclusions
My investigation found that your allegations was correctly recorded and investigated as far as was possible given the effect of Section 11 of the Parliamentary Commissioners Act 1967. The statute law effectively curtails third party investigation of PHSO activity.
In light of the above I conclude that until such time as the statutory bar is removed an effective investigation cannot take place. You alleged that there was a failure to investigate your allegation. On the balance of probabilities, I am satisfied this was not the case. I therefore conclude that your complaint is not upheld.
That officer(s) within the Police enquiry team have colluded and or
conspired to ‘cover-up’ misconduct on the part of the PHSO.
My investigation found no evidence that the Police Enquiry Team colluded with any third party to cover-up misconduct. Your allegation appears to be founded in the fact that as there has been no satisfactory outcome to our investigation then it follows there must have been a cover-up. I can only refer you back the legislation in force that prevents the Enquiry Team
progressing any further. The legislation is of course published and in the public domain should you wish to review if and reflect on this point.
You alleged that the enquiry team led by DI Gail Granville colluded to cover-up misconduct of the part of the PHSO. On the balance of probabilities and in the absence of any evidence I find that this was not the case. I therefore conclude that your complaint is not upheld.
D. Investigating Officer
This report was compiled by:
Detective Inspector Simon Deefholts SC&O1 Homicide & Serious Crime Command. Major Investigation Team 8.
A UK official said that Russia asking to be involved in the investigation of the Salisbury nerve agent attack is akin to an arsonist “investigating his own fire”.
If the Skripal incident were handled like an NHS complaint by PHSO it would go something like this:
UK: Hi Russia, sorry to bother you but we have had a complaint that your chaps have used a highly toxic nerve agent to assassinate a citizen on UK soil. This is in breach of the Geneva protocol and in direct contradiction to the UN Convention on the storage and distribution of toxic chemicals. What do you have to say?
Russia: As you know our legal team have already been through all the evidence regarding this complaint as part of the first-tier complaint handling process. We can confirm that this accusation is entirely without merit. Also, both the Geneva protocol and the UN Convention are only guidelines so I can assure you that there have been no breaches on our part.
UK: Thanks for the confirmation Russia. Are we able to see the evidence you relied upon to make your decision that no breaches occurred?
Russia: Unfortunately, we are just in the process of updating our IT systems and the official record is unavailable at this time. We would be happy to provide you with our expert witness statement but this is personal information which belongs to the individual and we must protect his confidentiality. We take complainants of this nature very seriously and I give you my word that our investigation has been both robust and thorough.
UK: That’s fine. You will be in receipt of our draft report in the next few days and the final report the day after that and we are happy to confirm no uphold. See you at the next UN conference in Geneva?
Russia: Absolutely, I owe you a coffee. Cheers.
This response to a Telegraph article in 2013 accurately describes the way in which the complaint process is deliberately stacked against the complainant at every turn making it ‘corrupt by design’. And this single line captures the problem in a nutshell.
In no other area is one party allowed to have complete control over evidence that might prove the complainants allegation while the other party has to beg for access to information.
Bear in mind that the ‘one party’ which has complete control is the one under investigation.
The problem is the burden of proof.
Comment on Telegraph article 27 January 2013 by “romeolima”
http://www.telegraph.co.uk/health/heal-our-hospitals/9828966/Stafford-scandal-hindsight-isa-luxury-we-can-ill-afford.html romeolima Today 07:52 AM @nautonnier.
This is a long comment from me but I hope people will read it. I absolutely agree with your sentiment but the problem is the burden of proof. Before the police can investigate, complainants often have to go through a tortuous multi-layered system that allows an internal investigation into an incident by the hospital itself without the complainant or their legal representatives being allowed to question the witnesses. Staff do not have to swear or affirm and their version of events frequently reads like a novel. Notes go ‘missing’ (this is a common event) and staff are ‘helped’ to make statements by their legal department although this is meant to be a process without lawyers on both sides. Hospital legal departments often regard this as a ‘dry run’ of a possible court case and can prepare their defence whilst obstructing the availability of medical data to the police, should they be involved, the complainants and their legal team. There is no organisation of any credibility that can carry out an investigation into an individual complaint even if this is about a patient death. The Ombudsman has proved ineffective and the system is such that the hospital already has prior knowledge of the details of the complaint as the complainant must have already gone through the hospital system prior to reaching the Ombudsman. It’s a terrible catch 22. In no other area is one party allowed to have complete control over evidence that might prove the complainants allegation while the other party has to beg for access to information. Almost all the Incident Reporting Protocols that I have read say that in the event of any incident that all notes, statements etc should be immediately captured electronically but this wealth of material, which cannot be altered, is almost never made available to the complainant. In all cases of death the Coroners Officer would appear to be the proper person to immediately seize and hold originals of all patient records whether paper or electronic while a decision to proceed to an Inquest or not is being made. In my own family’s case, the notes were held at the hospital’s litigation department for nearly six weeks before the Coroner requested a copy. This is highly unsafe as an evidential chain and we have never received all the material requested and are fairly certain that the Police would be told that material was missing and therefore the Crown Prosecution Service could not proceed.
If you have a limited income and need to take court action this useful guide will help you to avoid court fees.
Court Obstacles – Fees
Fighting for our rights became dramatically harder in 2013 when the Government removed funding from entire areas of Civil Law including:
- Personal Injury & some Negligence Claims
- Employment Law –affecting Whistleblowers & cases of Unfair Dismissal
An argument against the changes claimed that the very poorest & most disadvantaged in society were now being denied justice when for many the only way forward is Court Action. It argued that people would represent themselves and that court hearings would last longer. The burden on court and staff and judges would increase imposing a heavy drain on the system.
This would, of course, be factually correct and become a huge problem to the Justice System if the same amount of cases were being brought to court. It is therefore unfair, unfortunate but understandable that the Government do not broadcast all of the helpful facts and options available to society in their defence and that case numbers continue to fall.
The added deterrent of Employment Tribunal fees was introduced in July 2013 which resulted in a 70 % drop in cases. Personal Injury claimants suffered again in March 2015 with increased court fees at a cost to injured claimants seeking to recover damages from the negligence of others.
Court Fees – the Good News
The good news here for many is that an option IS available. The bad news is that far too many people continue to base their decision without having the necessary and relevant information which could make all the difference.
EX 1 6 O A – Tried & Tested!
Can I get my Court Fees Remitted? The EX 16 O A
Anyone considering court action should be aware of the EX 1 6 O A which can make an impossible situation regarding court fees possible. A valuable piece of information I do not believe enough people considering court action are aware of. I have used the EX16OA numerous times and have paid no court fees or costs.
The EX 16OA is a fee remission form and can excuse people from paying court fees altogether. It can also help reduce court fees if an amount must be paid. It is there for people who are currently unemployed or on a very low income or for those who only have a small number of investments or savings and still wish to defend their rights. It can also be used to refund court fees if they have already been paid within 3 months.
The system is based on 2 tests:
- Disposable Capital Test
- Gross monthly income Test
Full information regarding the EX16OA is available online and fee remission is explained in full. You will need to provide details of your income and sign a declaration of truth. It can be downloaded or requested in paper form from the court.
Please Note- The Bumpy Ride
- If you do qualify for the EX160A be sure to Always use Recorded Delivery. Courts are prone to having no record of documents which have been received and signed for until you can Re-prove receipt and Re-send them the confirmation details. At this point the court often finds’ the missing document.
- Always keep a copy of your completed form
- Good luck.
You have to worry when the Ombudsman asks the citizens to explain the ‘point of complaining’ but let me set that in context. PHSO have actually asked film students to put together a 45-second film on the title ‘What’s the point of complaining’ and enter a competition to win a cash prize of £400. If anyone could educate the Ombudsman on this subject with a single 45-second film then it would be worth a lot more than £400. film-competition-whats-point-complaining Let’s see what the Parliamentary and Health Service Ombudsman (PHSO) have to say about their complaint handling service.
We were set up by Parliament to provide an independent complaint handling service for complaints that have not been resolved by the NHS in England and UK government departments.
We share findings from our casework to help Parliament scrutinise public service providers. We also share our findings more widely to help drive improvements in public services and complaint handling. about-us/who-we-are
So according to PHSO they provide an ‘independent’ complaint handling service for citizens with complaints about government bodies and the NHS. In fact, they are the only body who handle individual complaints apart from the occasional investigation by NHS England and the even more occasional public inquiry. They give resolution to citizens caught in a dispute with public bodies and they also ‘drive improvements’ by sharing the findings of their investigation reports and so preventing further harm. So far so good.
On Monday 26th March 2018 Southern Health Foundation Trust pleaded guilty to criminal charges of negligence and harm caused by a failure of its health and safety management systems. The trust accepted;
“It is a matter of significant regret that between April 2011 and spring 2016 the Trust did not adequately address the quality and safety, governance and assurance challenges it faced in a timely and robust way.” (28)
The court judgement concluded;
From the perspective of the Court, it is not merely a matter of regret but of very grave
concern that the endemic failures disclosed by the investigations following the
avoidable deaths of TJ and Connor were allowed to arise at all and to persist for so
long. That concern is heightened by the failure to have learned any lessons or to have
addressed the systemic failures adequately or at all between April 2012 and July 2013,
for which there appears to be no excuse at all. (29)
Southern Health Foundation Trust suffered from ‘endemic failures’ which caused actual bodily harm to patients in their care, for at least five years, for which no lessons were learned. So how come the Ombudsman (PHSO) didn’t detect and share these endemic failures with parliament to drive reform given the length of time it continued and the large number of people affected. (722 unexpected deaths over 4 years with only 272 properly investigated) bbc.co.uk/
During the time of endemic failures at Southern Health (2011 – 2015) the Ombudsman received 164 complaints from members of the public. These complaints should have raised concerns but PHSO investigated only 16 of these cases, (9.7% of the total submitted) and upheld to some degree just 5 (3.0%) This low uphold rate goes some way to explaining why issues at the Trust persisted for so long, causing avoidable death and suffering to many and why ‘no lessons were learned’.
In February 2018 another scandal broke this time concerning Liverpool Community Health NHS Trust (LCH) An investigation by NHS Improvement found that between 2010 and 2014;
Patients suffered “significant harm” because of multiple serious failings by a “dysfunctional” NHS trust… Liverpool Community Health NHS trust (LCH) provided poor, unsafe and ineffective care to patients, including inmates at HMP Liverpool, the scathing report concluded.
“Patients put their faith in the NHS, and they should be able to trust that dangerous and dysfunctional services will be dealt with immediately. Sadly that has not been the case here and it took the help of a local MP to sound the alarm, and many years for the full facts to emerge,” said Jeremy Taylor, chief executive of National Voices, a coalition of more than 150 health and social care charities.
Dangerous and dysfunctional services delivered by LCH without redress for at least a four year period. Surely some of the people who suffered would have made a complaint to PHSO. The table below shows that from 2010 – 2014/15 the public made 43 complaints to the Ombudsman. These figures demonstrate a steep rise from 2012 onwards yet the Ombudsman investigated just 5 cases (11.6%) and upheld none (0%) in this time period giving LCH an unblemished record. Since 2010 the Ombudsman has partially upheld only 1 complaint against LCH giving a green light for dysfunctional services.
In these two instances, the Ombudsman (PHSO) failed to provide redress for the vast majority of those who made a complaint. (97%+ with no uphold) But more alarmingly it failed to spot and rectify serious, dysfunctional bodies who were able to deliver harmful services to the public for prolonged periods without redress. In short, the Ombudsman failed in both the specific aims of its given remit. Which begs the question,
‘What is the point of complaining?’
and at a cost of £37m per annum,
what is the point of PHSO?
A primary responsibility of the state is to protect its citizens from harm. So what happens when the state is the body causing harm and those in authority collude together to cover up? In the UK we like to believe in ‘British fair play’; a somewhat bureaucratic but essentially benign system of checks and balances to put things right. After all, we have shared our model of democracy and our legal system across the world so who could doubt the efficacy of British rule?
Yet anyone who has made a complaint about a public service will have learnt that the machinery of the state is used against the citizen, not for the citizen. Those who have not made a complaint will not want to know this bitter truth and will not believe a word of it. And there is the dilemma. What right-minded person would go about telling all and sundry that various government authorities have conspired against him? Clearly, only a delusional trouble-maker would dream up such a tall story.
Meet Mr Hawkins. A brave campaigner for truth and justice who told such a story to his MP Andrew Gwynne, shadow minister for communities and local government. In an unusual twist of events not only did Mr Gwynne believe his constituent, he felt so strongly that Mr Hawkins had been let down by multiple agencies for over a decade that he brought it to the attention of parliament at a recent ‘backbench’ meeting in Westminster Hall. You can read the full details here
Sadly, I have to publicly outline how my constituent, Mr Hawkins, has been let down by public authorities. The law and NHS rules have been abused to avoid giving him the justice that is rightfully his. His attempts to seek that justice, along with some semblance of honesty and humility, have already passed the decade mark, so I shall be grateful for the Minister’s reply after I set out the case.
Did you get that – “…the law and NHS rules have been abused [by the state] to avoid giving him the justice that is rightfully his.”
Mr Hawkins was given surgery on his ruptured Achilles by a junior doctor instead of the allotted clinical surgeon in order to ‘meet government targets’ and following a serious clinical error which left him in great pain he was discharged too soon also to ‘meet government targets’.
Mr Hawkins immediately made a complaint through the hospital trust’s internal complaints procedures. He believes that on receipt of his letter of complaint, the trust should have called him in for an examination and a scan. It should have admitted that a serious problem had occurred and carried out a further operation to release the Achilles tendon from the rear of his leg. In Mr Hawkins’s mind, the matter would then have been resolved. However, the trust decided to take a different route: it instantly instructed Hempsons solicitors.
So easy to put things right at this early stage yet the state used public funds to protect itself against a genuine complaint. Clearly, Mr Hawkins wasn’t expecting this.
Although, obviously, Mr Hawkins is concerned about the clinical errors that have caused him lasting damage, he is rather more appalled by the actions of a variety of organisations afterwards. He believes that those actions were deliberately designed to cover up the fact that a clinical mistake had been made, caused primarily by the replacement of a consultant surgeon with a junior doctor.
“He believes that those actions [by the state] were deliberately designed to cover up the fact that a clinical mistake had been made…” Why would the state deliberately design such harmful action?
Now that the complaint is in the hands of a legal team Mr Hawkins has little option but to appoint his own solicitor who then uses him as a cash cow and appears to work in cahoots with the NHS legal team.
In 2008, Mr Hawkins instructed a solicitor, who requested disclosure of all full medical records. The trust passed his request on to Hempsons. However, in the immediate period after his request he received only a very selective number of his own medical files from Hempsons. Mr Hawkins’s solicitor failed to ensure that all full medical evidence was disclosed within statutory time limits and failed to apply for a court controlled disclosure, while knowing that the records he had listed were missing. Mr Hawkins’s solicitor instructed a clinical litigation medical expert, who produced a case-closing report that failed the objectivity test and was therefore invalid. The trust and Hempsons initially failed to disclose relevant medical records, doing so only after continued and considerable pressure from Mr Hawkins.
“Mr Hawkins’s solicitor instructed a clinical litigation medical expert, who produced a case-closing report that failed the objectivity test and was therefore invalid.”
State corruption provided lucrative work for ‘the legal boys’ who could act with impunity knowing that there is no effective mechanism for a member of the public to hold a solicitor to account.
In 2013, the trust eventually conceded and his remaining medical records were fully disclosed. On analysis of the records, it was plain to see that there were omissions and that pre-action protocol time limits had been exceeded. In response, Hempsons sought the opinion of a medical litigation expert. A report was produced, but it was based on the selected medical records that I mentioned earlier, as well as on the falsified information. Mr Hawkins believes that that report would fail any objectivity test and is therefore invalid.
Let’s just get this straight. The NHS Trust deliberately and willfully withheld medical records demanded under the legal pre-action protocol time limit and falsified other information. A criminal offence, yet no-one is held to account. Instead, the solicitors working [from the public purse] to protect the trust were able to produce a ‘whitewashed’ report in order to deny justice.
Withholding records is a breach of the Data Protection Act 1998 but the state body responsible for protecting the citizen from such breaches, the Information Commissioner’s Office is slow and cumbersome with no real powers of coercion.
Mr Hawkins also believes that the Limitation Act 1980 was breached from 2008 and that rules 31 and 35 of the Civil Procedure Rules 1998 were breached in compiling medical reports, because the medical experts failed in their duty to the court to be objective.
More breaches of the law and regulation by the trust and their legal team which required action from the state to protect the citizen but the body charged with finding against such ‘maladministration’ the Parliamentary and Health Service Ombudsman refused to investigate leaving him high and dry.
The delays in disclosure of information meant that Mr Hawkins’s complaint to the Parliamentary and Health Service Ombudsman was ruled out of time. My constituent believes that that makes a mockery of the trust’s failure to disclose his medical records within statutory time limits, which he believes the ombudsman ignored while upholding the strict time criteria regarding his making a complaint to the ombudsman. Mr Hawkins appealed the decision on several occasions when the evidence was retrieved through the Information Commissioner. However, he was unsuccessful in overturning their original view that a letter from the trust indicated that the complaint was closed in 2007, which he utterly refutes. Hempsons later apologised and admitted that that letter did not clearly state that the local complaints procedure was closed. However, the ombudsman still refused to investigate the complaint and, in doing so, Mr Hawkins feels that the ombudsman has assisted the trust to conceal the cause and effects of a clinical error.
The Ombudsman has total discretion to investigate a case which is outside the normal 12-month time limit yet it refused to do so and even refused to accept the evidence that their initial decision to time-out the complaint was flawed.
“However, the ombudsman still refused to investigate the complaint and, in doing so, Mr Hawkins feels that the ombudsman has assisted the trust to conceal the cause and effects of a clinical error.”
Unrealistic and inflexible NHS targets caused harm to the citizen. Then publicly funded legal teams dragged their heels, refusing to release records and fabricating evidence in breach of legal protocol. The Ombudsman then ‘assisted the trust’ by refusing to investigate clear breaches of policy and procedure.
Mr Hawkins then appealed to the NHS Litigation Authority only to find that they too were in cahoots with the trust and the legal team.
In 2013, Mr Hawkins wrote to the NHS Litigation Authority, as the trust was not reporting clinical mistakes. Initially, the NHS Litigation Authority would not get involved and requested my involvement, as Mr Hawkins’s Member of Parliament, which I duly offered. Two replies were received that indicated that the NHS Litigation Authority was involved in the case, despite previous assertions and written evidence that it was not involved. Mr Hawkins was notified in writing that the trust, on receipt of his letter of complaint, had instructed Hempsons in January 2007, with the NHS Litigation Authority directly instructing Hempsons and the trust from November 2007 to February 2009.
Hempsons was aware of a breach of the Limitation Act 1980 and the Data Protection Act 1998 when it disclosed to Mr Hawkins his missing medical records in October 2009. This means that the trust and Hempsons had illegally avoided disclosing all full medical records within statutory time limits and successfully passed the three-year limit for litigation. Mr Hawkins believes that indicates that the NHS Litigation Authority was aware that rules had been broken, yet failed to take retrospective action based on the strength of the evidence that he had disclosed to it in 2013.
“… the trust and Hempsons had illegally avoided disclosing all full medical records within statutory time limits and successfully passed the three-year limit for litigation.”
A state body and a state-funded legal team committed illegal actions in order to deny justice to the citizen with the support of the NHS Litigation Authority and the complicity of the Ombudsman.
The actions taken by the trust, assisted by Hempsons and the NHS Litigation Authority from January 2007 to December 2013, clearly indicate that the trust was covering up a clinical incident and its cause. With so much time having passed since my constituent first exited the operating theatre in the summer of 2006, I hope that today the Minister of State will be able to afford Mr Hawkins guidance and support in this matter, and finally bring to some closure what has been a dreadful episode for my constituent.
You may expect the Minister to be horrified that various state-funded bodies had conspired to deny justice to a citizen harmed by the state in the first instance but Stephen Barclay, Minister of the department of health and social care was having none of it. He used the usual caveats which allow politicians to show a clean pair of hands by stating that the NHS complaint system and the work of the Ombudsman are independent of government. Also, that it was not for the DoH to discuss individual cases.
If the bodies set up by government fail to protect the citizen who is to take them to task if they are deemed ‘independent’?
Then Mr Barclay casts aspersions on the validity of the claims and in doing so discredits the complainant.
As you are well aware … the NHS complaints process operates independently of Government, to prevent political bias in the handling of individual complaints. However, a number of points arise from the hon. Gentleman’s remarks, in respect of his contention that Mr Hawkins was let down by a number of individuals and organisations within the NHS. Specifically, it is alleged by Mr Hawkins that the hospital failed him by prioritising then Government targets, which delayed his operation; that the clinician failed him through clinical error; that the duty surgeon failed him by falsely reporting that his wound had healed; that the hospital failed him by not correcting the alleged mistake and by instructing lawyers; that Hempsons solicitors failed to disclose full records; that his own solicitors failed him by not obtaining his records; that his own clinical medical expert failed him; that the hospital failed him, regarding his report; that the Ombudsman failed him; and that the NHS Litigation Authority failed him.
Although the Department of Health does not comment on individual cases, and it is not for me to adjudicate whether all of those claims by Mr Hawkins are valid, it is worth noting that a very wide range of both individuals and organisations are alleged by Mr Hawkins either to have conspired against him or, indeed, to have failed him in this matter.
“… it is not for me to adjudicate whether all of those claims by Mr Hawkins are valid, it is worth noting that a very wide range of both individual and organisations are alleged by Mr Hawkins either to have conspired against him or indeed, to have failed him in this matter.”
Mr Hawkins provides us with a typical case study of state corruption and the misuse of power. This happens to thousands of people every year. But if they chose to speak out about the deliberate corruption and collusion of state bodies it marks them as a delusional fantasist or vexatious troublemaker. Who would believe that state-funded bodies would conspire in such a concerted and prolonged manner? Yet, to not speak out is to be complicit in the state violation of human rights. So the brave or the foolish speak out and become victims of the state all over again.
Let’s give the final word to the Minister, Stephen Barclay.
It is equally important that patients and their families are listened to and their concerns taken seriously and addressed.
That would be all the concerns which don’t indicate a deliberate cover-up and collusion by the state then Mr Barclay.