Making a complaint to the Ombudsman will waste huge chunks of your time as you gather all the evidence and continually chase them for a decision only to find that the investigation report bears little resemblance to the facts you have painstakingly provided. The Ombudsman acts as government’s firewall, burying evidence of wrongdoing by denying the facts.
This written evidence to the Health Select Committee in 2010 gives a very accurate account of the experience both then and now. Written evidence to HSC 2010
It is the Orwellian ‘Ministry of Truth’.
Before you can complain to PHSO you must allow the public body concerned the opportunity to deal with your issue. The first tier of complaint is the internal complaint process provided by each government body or NHS Trust. During this phase, all sorts of important records and information can go missing or be altered to hide the truth. It is a good idea to gather your own evidence before making a formal complaint using Freedom of Information requests.
Once you receive the first-tier closedown you are free to complain to PHSO if you remain dissatisfied. This is the second tier complaint process. Complaints concerning government bodies and public services are required to go through an MP filter. You must contact your MP within 12 months of the time you became aware of the issue. You will have to provide your MP with all the details of your complaint and the supporting evidence. This will then be passed onto the Ombudsman. Your MP will receive a copy of any decisions made and pass this onto you. Make sure you keep copies of anything you send to anybody. Things get lost so easily!
If your complaint is in regard to NHS health services or dental services, then you can contact PHSO directly without going through your MP, but again you must complain within 12 months of the time you became aware of the issue. This isn’t always easy as there is no time limit on the first-tier complaint process which can often run over 12 months.
If your complaint is regarding a serious NHS incident then you may wish to approach HSIB
In the Netherlands they practice ‘presumption of honesty’ which means that complainants are trusted to give valid accounts. It is for the body complained about to produce the evidence to prove they have acted appropriately. But here in the UK, it is for the complainant to find all the evidence, join the dots and basically do the investigation. While the public bodies can provide unsubstantiated accounts denying wrong-doing which are perfectly acceptable to PHSO.
What happens to my complaint once it is received?
Your complaint passes through an initial check to determine whether you are complaining about a body within PHSO remit. The Intake Caseworker will close your case if it is not properly made or premature ie. you have not received the final closedown from the body in question. If your complaint jumps this first hurdle, and many don’t, then it will be passed to a Caseworker for assessment. The Caseworker will decide whether the complaint is within the 12 month time limit (there is some discretion here) and whether PHSO can legally investigate. It currently takes an average of 30 days to allocate a complaint to a Caseworker. In 2018/19 PHSO closed 92% of cases within 7 days giving just an 8% chance of getting to the investigation stage.
Qualifying criteria for PHSO investigation:
· whether you have been affected personally by what happened
· whether you complained (to us or an MP) within a year of knowing about the issue
· whether you have (or had) the option of taking legal action (in this case PHSO won’t investigate as you have an alternative
legal remedy.
· whether there are signs that the organisation potentially got things wrong that have had a negative effect on you that hasn’t been
put right
As part of their new complaint handling process PHSO are resolving more complaints without a formal investigation. They call this ‘the right decision at the right time’. The number of formal investigations has dropped under Rob Behrens who became the Ombudsman in April 2017. In 2018/19 just 2.4% of all the complaints were upheld to some degree following an investigation a figure which rises to 20.8% when resolutions without investigation are taken into account. Many people are disappointed with the outcome as the most serious aspects of their complaint tend to be the ones which are not upheld.
PHSO are supposed to investigate according to their own Principles of Good Complaint Handling and they measure their success by quarterly performance checks against their Service Charter. Unfortunately, PHSO do not provide a facility for all service users to provide feedback so the data used by the Ombudsman is ‘selective’ and therefore open to bias. Trust Pilot which is completely independent from PHSO, record very poor reviews of the service.
What happens at investigation?
If your case is selected for investigation, then this is largely a desk exercise where your caseworker looks at the evidence you have supplied and that provided by the public body. No-one is interviewed and on the whole, PHSO fail to challenge the public body even when there are discrepancies with the evidence you have presented. If your case is about the health service then PHSO will seek clinical advice to determine whether the body as acted according to ‘good practice’. The clinical advice is often key to closing or upholding your case. You will not be told the name of your clinical advisor but following the 2018 upheld judicial review which found irregularities in the use of clinical advice, you are entitled to access to the questions asked of the clinical advisor and any advice given by them which is material to their decision. It is important that you ask to see this information before responding to your draft report as it may not be automatically supplied and will be crucial to the final decision.
Responding to a draft report:
No matter how long it takes PHSO to produce your draft report, you will be given just 14 days to respond. This is often insufficient time to identify and correct inaccuracies in the draft report. You may also be too distressed to undertake this process or have caring duties which prevent you from completing the task in time. No matter, PHSO are very reluctant to give extensions, keen as they are to close the case and meet their targets. If you don’t get your comments in within the 14-day deadline then the final report is issued anyway – and this is always set in stone. You can show the draft report to your advocate if you have one but otherwise, it must be kept under wraps.
At the draft report stage, you can ask to see the evidence PHSO have relied upon in making their decision and make sure this includes evidence related to the clinical advice in health care cases. Ask PHSO to send the material evidence along with your draft report as you have only 14 days to read, review and reply. It will be of great value to you to see the evidence presented by the other side before the report is finalised, after all, they have seen your evidence from the beginning. If they are reluctant to share at this stage then quote their words back to them.
The legislation that governs the Ombudsman’s work (The Health Service Commissioner Act 1993) says: ‘An investigation shall be conducted in private’. However, the complainant and the organisation are able to see, at draft report stage, the information material to our decision to enable them to make comments about findings and recommendations (if any). PHSO
Even if you carefully bullet point all the errors and supply evidence to support your claims the chances are that PHSO will take very little notice and the final report will be issued within days with hardly any alternation. Once the final decision is made your only option is to ask for a review and you must do this within one month of receiving the final report. See more here: The Review Process
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