Ideas for a crucial component of an exemplary service

Guest blog by:  Richard von Abendorff, patient safety campaigner and a Patient Public Voice in NHS Improvement

Summary

I call on HSIB to consult openly about its protocols and I invite any patients, families and whistleblowers who have not been approached by HSIB – to contribute ideas with comments to this site. I set out below some general good practice principles for engagement, which I think HSIB should consider.

A: Introduction – despite very challenging circumstances, unity in ultimate goals

The Healthcare Safety Investigation Branch (HSIB) was established in response to a Parliamentary Select Committee report, which criticised the quality and independence of investigations into NHS safety failures. Ref1

There are many challenges it faces and the report of the Expert Advisory Group Ref2 which helped develop the model identified’ tensions’ around issues like safe spaces, and the body’s’ structural independence. I summarise some of the developments as they are known now (15/2/17) in the final section of this report (C) to provide a valuable context (explaining the information I have gleaned, my perspective and also of interest to those new to the whole process which I have been following for over 5 years as I await a proper investigation – in vain it now appears).

But the main focus of this paper is in section B on key constructive steps forward which I believe the HSIB has to take. If taken these will in turn aid resolution of the current continuing scepticism and concerns of many patients and health care staff. I intend this to be just the start of a wider public discussion which the HSIB then engages with.

There without doubt are very different background interests and ongoing pressures on the key parties involved whether they are patients and their families, front-line staff who provide the service, whistle-blowers identifying the service failing or harm event, managers and providers, regulators and external bodies like PHSO (the final point of call for patients who want a proper investigation and remedy and believe they have not received it), and indeed (speaking as a campaigner)many campaigning organisations and individual campaigners

However, some shared core goals are acknowledged by all involved

A) The vital need to improve learning from incidents of harm in the health service and to promote changes to ensure no other patients are harmed in the same way.

B) That this process is made more expert and independent

C) That the process is made more efficient and does not further traumatise parties, as it does for many patients’ families and whistle-blowers

D) That the wishes and insights of patients and their families are listened to and acted upon to ensure all of the above – this external, consumer user voice with no other hats on is essential

Moreover, the HSIB has not only to implement this radical new model of working but do it transparently, because

• It is good practice

• As the expert group report argued it will help establish the essential trust needed, particularly for patients and their advocates

• And if HSIB is to be an exemplary model, this is essential

This challenge for HSIB is increased in the context of growing financial constraints, public scrutiny, while establishing a new service with a relatively small budget, taking on a minute fraction of cases being processed by the system, where many families are awaiting some kind of immediate justice, as well as whistleblowers still awaiting some kind of action which protects them Ref20

Issues of transparency and inclusivity are particularly important given recent concerns about a parallel project to HSIB derived from the Expert Advisory Group– the Just Culture taskforce. Ref3

Too many reviews to date have been, as far as I can see set up and tightly controlled by the very bodies who are having to reform their processes due to decades of failings not going properly addressed. I hope and expect HSIB to be different.

B: How HSIB could model meaningful patient involvement – feedback welcomed

1) In the light of this reality, I propose that HSIB should explicitly have an exemplar protocol on how it will involve patients, families and their advocates.

This will play a crucial role in addressing many of these real live concerns of patients and their advocates, and in providing the optimum conditions for success will contribute towards the development of this vitally important development particularly at these times of financial pressure on the NHS and public scrutiny

In my role as a Public and Patient Voice with NHS Improvement, I have witnessed attempts to co-produce its engagement approach with PPV’s, and I believe If HSIB is to be an exemplar and to lead on culture change nationally, it should operate in a fully open manner, and it should be strongly patient focussed. Fully empowered co-production is essential, but what will that mean? Some points are made here:

2) Best practice would mean it operates in a fully open manner. Moreover it would also require a culture in which HSIB opens itself to candid and constructive challenge from patients and their advocates, and embeds such challenge in all its operations.

3) Best practice is for patients to fully and meaningfully involved at all levels of operations. As a group, led by the safety and health quality expert Don Berwick, noted in the government report ‘A promise to learn, a commitment to act’:

“Patients and their carers should be present, powerful and involved at all levels of healthcare organisations from wards to the boards of Trusts.” Ref 4

In particular, the perspectives of those harmed or who have experienced cover ups is essential in mapping out where improvement is needed in the NHS. The HSIB EAG noted:

“Those involved or harmed in safety incidents – whether patients, relatives or staff – must have the opportunity to be fully involved in investigations into what has happened”

The secondary harm caused through poor and ineffective investigations cover up and on occasion treatment of complainants as vexatious and other forms of victimisation particularly of whistle-blowers must be addressed. Victims of these kinds of events will have insights to ensure policies, procedures and safeguards are designed to prevent of these unacceptable practices

4) Principles of equality and diversity also need to be embedded involving a range of patients, family and advocates reflecting the wider demographic of the population who use the NHS. Ref5

5) True involvement requires true power sharing, through access to information and a genuine stake in making decisions at an early enough stage to influence HSIB’s processes. It should be a two way process, and not just a question of patients and their advocates passively providing feedback to HSIB. Rather, they should have a real opportunity to influence what HSIB does with the information at systemic level. Ref6 and 7

As a recent trial of structured patient involvement demonstrated, a critical part of such initiatives is to ensure effective listening and responsiveness by organisations. Ref8 Without this, there is no improvement in safety.

6) The levels at which stakeholders could play a vital contribution are:

• Designing and deciding HSIB’s scope, processes and protocols

• A voice in deciding the highest priority areas for investigation

• A voice in how individual investigations are conducted

• A voice in the scrutiny and evaluation of HSIB’s work

• Following up on implementation of recommendations, at times with other health service bodies to which HSIB may refer

7) Best practice would also include levelling the playing field through the provision of appropriate information, support and advocacy for patients and families. This should apply during individual investigations and when patients and families take part in HSIB’s overarching governance processes.

8) With regards to HSIB’s scope, a crucial question is how HSIB will relate to the PHSO. This has not been addressed at all by PACAC in an important recent report Ref9, but cannot be avoided: how will HSIB scrutinise PHSO’s much criticised and variable investigation processes? PHSO will remain the final recourse for the vast majority people who wish to complain about poor NHS investigations, many of which are about patient harm events, and it is important that PHSO’s investigations are of a consistent and acceptable standard. HSIB must engage with this core part of the present failing system which gives feedback to so many Trusts about their investigations. Understanding the root system failings of too many PHSO investigations is required to enable adequate evidence based reforms, especially at this time when new legislation is being considered and a new Ombudsman, Rob Behrens starts his post Rref 11

But what then of PHSO’s role in processing complaints about public sector bodies – will complaints about HSIB be investigated by PHSO? Or should there be separate provision for HSIB, to avoid such circularity?

9) This will present challenges for the recruitment and support for patients, families and their advocates. HSIB will have to model this and in so doing recommend how local services and other bodies include and develop this key resource for all services. Tokenism will not do. If patient advocate and whistleblowers voices are wanted , and as I say i believe they are required, they should be publically sought, with clear role descriptions and selection processes with significant input from independent respected individuals and organisations to ensure they are not hand-picked by the ‘great and good’. This is part of the culture that has to change.

In conclusion as Ocloo and Matthews argue we have to move from tokenism to empowerment. For too many exclusion and victimisation has been their only experience of the investigation system. Ref5. HSIB has to openly engage with this set of challenges.

Recognising that I am but one patient advocate voice I urge others to respond with suggestions and comments to this draft manifesto for patient engagement with HSIB. If this is not done now then when? Please send comments to me via this blog. Any help you can lend would be much appreciated and I hope as many comments as possible will be made public as well as the response by HSIB. These processes must be transparent

C:  Background to HSIB as at February 2017: key issues, controversies and tensions-challenges requiring an empowered patient voice

The Healthcare Safety Investigation Branch (HSIB) was established in response to a Parliamentary Select Committee report, which criticised the quality and independence of investigations into NHS safety failures. Ref1 In March 2015, the Public Administration Select Committee (now the Public Administration and Constitutional Affairs Committee) recommended the creation of an independent investigation body. Ref12

The government responded by creating HSIB, but controversially located it within NHS Improvement, and did not fully enact PASC’s recommendations for legislation Ref13,14 Bernard Jenkin the Chair of PASC raised a concern about the lack of immunity for staff giving evidence to HSIB Ref15 The committee also strongly condemned the lack of independence for HSIB.Ref16 Ambiguity about what ‘immunity’ and ‘safe space’ comprise within HSIB investigations has been the subject of much controversy and is not yet fully resolved. Ref17

A Chief Investigator, Keith Conradi – Chief Inspector of the Air Accident Investigations Branch 2010 to 2016 – was appointed and took up post in September 2016. Ref18

Keith is reported to be seeking statutory independence and additional powers for HSIB.Ref19

Little else has been made public to date. HSIB has a budget of £3.6m. It is to undertake 30 investigations a year, and investigations may feature more multiple cases and locations. It is expected to be an exemplar and to support improvement in investigation quality throughout the rest of the NHS. Keith has now said that HSIB is intended to be operational by April 2017. Ref19

According to the Health Service Journal, Keith has appointed a physician to head HSIB’s intelligence unit, which will identify potential matters for investigation. Keith has also indicated that there will be “no immunity”, and that HSIB will report “wrong doing, an unlawful act or huge significant harm” to the “appropriate authority”. Ref19 However, Keith has not fully assuaged concerns about the potential misuse of ‘safe space’ to conceal the full facts about failures.

He has indicated that information provided to patients and families will be filtered and that not all original documents may be disclosed. Ref19 He has however, rejected the government’s proposal that safe space should be extended to all NHS investigations, the great majority of which will not take place under HSIB’s auspices.

Keith commented to the Health Service Journal “We are not doing the investigations purely to get information for the families”. A question arises of how sensitive HSIB will be to the perspective of patients and families, and their advocates.

HSIB has not answered questions to date how explicitly it would involve patients, families and whistleblowers in drafting its protocols. Issues of transparency and inclusivity are important. This is especially so given recent concerns about a parallel project derived from the Expert Advisory Group (EAG) which helped to develop HSIB 10 – the Just Culture taskforce. Ref3

This is why this paper has been written. To start a transparent discussion how patients, families and whistleblowers will be engaged with. I eagerly await public feedback to this paper and transparent engagement with HSIB

ACKNOWLEDGEMENTS

A few patient safety campaigners I will not name now have inspired me through action and words to spell out some of the core ideas in this paper and one in particular has been essential to help articulate them. Many many thanks.

REFERENCES

1 Investigating clinical incidents in the NHS. Report by Public Administration Select Committee 27 March 2015

https://www.publications.parliament.uk/pa/cm201415/cmselect/cmpubadm/886/886.pdf

2 Report of the Expert Advisory Group, Healthcare Safety Investigation Branch May 2016

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/522785/hsibreport.pdf

3 Call for Just Culture task force core members to stand down, Minh Alexander 25 January 2017

https://minhalexander.com/2017/01/25/call-for-just-culture-taskforce-core-members-to-step-down/

4 A promise to learn, a commitment to act. Government response to the Mid Staffs Public Inquiry. Don Berwick et al, August 2013

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/226703/Berwick_Report.pdf

5 From tokenism to empowerment: progressing patient and public involvement in healthcare improvement Josephine Ocloo & Rachel Matthews http://qualitysafety.bmj.com/content/qhc/early/2016/03/18/bmjqs-2015-004839.full.pdf

6 Patient Engagement in Patient Safety. A Framework for the NHS. Sign up to Safety. May 2016

https://www.england.nhs.uk/signuptosafety/wp-content/uploads/sites/16/2016/05/pe-ps-framwrk-apr-16.pdf

7 Safety is personal. Partnering with patients and families for the safest care, Lucian Leape Institute 2014

http://c.ymcdn.com/sites/www.npsf.org/resource/resmgr/LLI/Safety_Is_Personal.pdf

8 Can patient involvement improve patient safety? A cluster randomised control trial of the Patient Reporting and Action for a Safe Environment (PRASE) intervention. BMJ Quality and Safety, Rebecca Lawton et al, 3 February 2017

http://qualitysafety.bmj.com/content/qhc/early/2017/02/03/bmjqs-2016-005570.full.pdf

Evaluating the PRASE patient safety intervention – a multi-centre, cluster trial with a qualitative process evaluation: a study protocol for a randomised controlled trial. Laura Sheard et al. Trials 2014, 15:420

http://www.trialsjournal.com/content/15/1/420

9 Will the NHS never learn? https://www.publications.parliament.uk/pa/cm201617/cmselect/cmpubadm/743/743.pdf

10 https://phsothetruestory.com/2016/12/23/why-finding-maladministration-is-a-flawed-model-richard-von-abendorff-patient-safety-ambassador/

11 Rob Behrens approved as Parliamentary and Health Service Ombudsman https://www.parliament.uk/business/committees/committees-a-z/commons-select/public-administration-and-constitutional-affairs-committee/news-parliament-2015/appointment-of-parliamentary-and-health-service-ombudsman-report-published-16-17/

New Draft PSO Bill https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/575921/draft_public_service_ombudsman_bill_web_version_december_2016.pdf

Fatal extraction: New Health Service Watchdog has all teeth removed.https://phsothetruestory.com/2017/01/16/fatal-extraction-new-health-service-watchdog-has-all-teeth-removed/

12 Investigating clinical incidents in the NHS. Report by Public Administration Select Committee 27 March 2015

“Our main recommendation is that the Secretary of State for Health should bring forward proposals, and eventually legislation, to establish a national independent patient safety investigation body. The cost of this body will be relatively small, compared to the costs and liabilities arising from clinical incidents at present. This will involve the development of a body of professionally qualified administrative and investigative staff, who, over time will be able to provide a substantial infrastructure in support of all investigation of clinical incidents.”

“There will have to be clear criteria for deciding which incidents it should investigate, to avoid being overwhelmed by the large number that require routine investigation across the NHS”

13 Learning not blaming. Government response to PASC. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/445640/Learning_not_blaming_acc.pdf July 2015

14 Government response to PACAC’s follow up inquiry on the quality of NHS incident investigations. 18 October 2016 https://www.publications.parliament.uk/pa/cm201617/cmselect/cmpubadm/742/742.pdf

15 Hansard debate on NHS reform 16 July 2015

“May I pick up on the Secretary of State’s reluctance to provide special legislation for the immunity of those giving evidence to the new patient investigation body? Will he keep an open mind on the subject? If he wants that body to be truly independent and to have a special status, he should remember that the marine accident investigation branch and the air accidents investigation branch have specific legislation to provide for such immunity. Public interest disclosure protection must not be challenged by freedom of information requests, given that freedom of information has been extended into areas where we never imagined it would go. We have to be specific in legislation that that cannot happen in this instance.”
https://www.publications.parliament.uk/pa/cm201516/cmhansrd/cm150716/debtext/150716-0002.htm

16 Statement by PACAC 2 June 2016

““We have consistently called for primary legislation to make HSIB fully independent, and to create a credible ‘safe space’ which will enable the NHS to properly learn from past mistakes. Since we approved this report, it is increasingly evident that the Government has accepted this recommendation. The Secretary of State’s decision to set HSIB up as an NHS quango as a permanent response to our recommendations was both disappointing and would be unacceptable, but the prospect of a secure legislative base will enable HSIB emulate the successful air, marine and rail investigation branches.

Were the present non-statutory arrangement to be regarded as permanent it would be an intolerable compromise, disregarding consensus between healthcare experts and Parliament, and would put political dogma against forming new public bodies before patient safety. We therefore look forward to the draft legislation emerging.”

https://www.parliament.uk/business/committees/committees-a-z/commons-select/public-administration-and-constitutional-affairs-committee/news-parliament-2015/quality-of-nhs-complaints-report-published-16-17/

17 The Healthcare Safety Investigation Branch. Glass half full or half empty. AvMA June 2016https://www.avma.org.uk/policy-campaigns/the-avma-blog/the-healthcare-safety-investigation-branch-glass-half-full-or-half-empty/

18 Keith Conradi’s CV https://www.publications.parliament.uk/pa/cm201617/cmselect/cmpubadm/96/9611.htm#_idTextAnchor028

19 NHS has ‘nothing to fear’ from new investigation body, says chief. Shaun Lintern Health Service Journal 5 January 2017

““The chief investigator will have discretion over what information is revealed but he said: “I think this is one area where I would rather not have discretion. I think ideally in terms of information that is taken under safe space principles we should have an obligation to protect those statements, but the relevant information – and the key word is relevant – is in the report or attached to the report somehow. He added: “We have to remember why we are doing investigations. We are not doing the investigations purely to get information for the families. We are doing it to improve learning and safety; we are not doing it on behalf of the staff, family or any particular body. If safety is improved because somebody opens up to us surely that is the most important thing we can do. If there is relevant information for the family it will be included in the report.”

https://www.hsj.co.uk/topics/policy-and-regulation/nhs-has-nothing-to-fear-from-new-investigation-body-says-chief/7014490.article

20 Whistleblowers need more than hand-wringing headlines, Sir Robert

https://minhalexander.com/2017/02/10/whistleblowers-need-more-than-hand-wringing-headlines-sir-robert/

On 13th December Dame Julie Mellor  informed Mr. Ronnie Cowan at the PACAC scrutiny meeting that,

“…as a result of people getting better explanations, [from the award winning customer care team] fewer people asked us for a review, it was 217 and in 14 cases we have reopened or launched a fresh investigation.  That gives you a sense of the scale and those 14 think it is perfectly proper for it to be done within the organisation.”  Q55 public-administration-and-constitutional-affairs-committee/phso-annual-review-201617/oral/44495.pdf

Those 14 may think it perfectly proper to have in-house review, though I doubt that they were asked, but the many individuals who were denied a review may think that an element of bias entered the process.  After all, marking your own homework has never been the most robust means of ensuring an impartial decision.

14 upholds from 217 reviews gives a miserly 6.4% uphold rate, but in fact it is a lot worse than that as many more review requests just disappeared from the figures discussed by Dame Julie Mellor and were not listed in the Annual Report.  The truth is that  1,969 people requested a review  last year which is 164 a month or 37 per week, but the majority of these failed to meet the criteria for review.  From the total number of review requests, the uphold of just 14 now gives a 0.7% chance of overturning a decision at review.  Hardly worth the effort of going through all the paperwork, providing again the evidence which had been ignored and completing a detailed, point by point response.

Given that one of the criteria for review is so common as to be virtually universal it is surprising to find that 89% of the review requests failed to make the final cut namely;

We overlooked or misunderstood parts of the complaint or did not take account of the relevant information, which could change our decision.

And as for making a service complaint about PHSO themselves clearly the award winning Customer Care Team have those totally under control as you can see in the table below.

The fortunate 0.7 % may consider that allowing PHSO to review their own complaint handling is ‘perfectly proper’ but the other 99.3% may be of a different opinion.

An allegory for our times: 

Some parents, lets us call them Mr and Mrs Smith, take their parental responsibility very seriously and decide to hire a professional Nanny to ensure that their children obey the rules and go to bed on time.  They pay top money to ensure they get a Nanny who can deliver.  When the Nanny arrives at the house the parents go through the rules, telling the Nanny what the children can and can’t do.  The Nanny is delighted that these boundaries have been so well considered and documented and looks forward to a trouble free stay with the family.  Then the parents tell the Nanny that although the children are required to follow all the rules and go to bed on time the Nanny can not instruct them to do so; she can only advise. The Nanny has no power to enforce any of the rules and cannot go into the children’s rooms to check that they have followed any of her suggestions.  However, the parents make it clear that they expect the Nanny to deliver good compliance to the rules and the Nanny will have to submit a report detailing how many suggestions she has given, how long it took the children to respond and how many were followed through.

Then with a smile, they call the children in.  They introduce the new Nanny and tell the children that she will ensure that the rules are followed at all times.  Bending down to make sure the children have full understanding, they tell them that they are only required to ‘have regard’ to what the Nanny says.  They are not, at any time, under any obligation to carry out the Nanny’s requests.  Then the parents sweep out for the evening safe in the knowledge that all will be well.

Having no power to give direct instruction or enforce good behaviour,  yet under an obligation to fulfil her contract, the Nanny is forced to negotiate with the children a bed time which is acceptable to them so that she can report back to the parents that they went to bed on time.  Equally, all the stated rules provided by the parents become negotiable with the Nanny turning a blind eye as often as possible so as not to report back breaches in behaviour.  Where there is an obvious flouting of the rules the Nanny records this as a ‘shortcoming’  and not a deliberate breach giving the children the benefit of the doubt due to their age or disposition.

In effect, the children know they are not being monitored at all.  They act however they like telling the Nanny a tall story if they get caught out.  The Nanny willingly accepts their version of events in order to keep her record clean.  The parents can report to all their friends that their children are supervised by a top Nanny under strict guidelines.  Mr and Mrs Smith congratulate themselves on a job well done and use their weekly scrutiny of the Nanny’s report as evidence that there is robust accountability of their children’s actions and therefore nothing to worry about.

This sounds like a crazy model to apply if you want X to monitor the behaviour of Y with any measure of authority or control.  Yet this is the model to be applied to the new Public Service Ombudsman.  

14 (8) designated authority must have regard to any recommendations contained in a statement under subsection (1)(c) in respect of the authority (but is not required by virtue of anything in this Act to give effect to any such recommendations). (p16)  draft_public_service_ombudsman_bill_2016

Without the authority to ensure any recommendations are followed, the Ombudsman must negotiate an acceptable agreement with the public body in order to report back to parliament that they have high compliance ratings.  Then the government can state with confidence that the public are well protected by an effective independent and impartial Ombudsman so everyone can sleep well in their beds.

What could possibly go wrong?

Well, new ‘Nanny’ Rob Behrens due to take over from Dame Julie Mellor on April 1st has spotted a potential weakness in the plan and made his views on compliance clear in his pre-appointment interview with PACAC.

“…if you are going to make a recommendation in a report you have to make sure that is addressed and if it’s not addressed you want to know why and you want to give the oxygen of publicity to the fact that it hasn’t been

PACAC pre-appointment meeting (10.28)

The oxygen of publicity was probably more effective when rating University compliance in his role in the Office of Indepent Adjudicator (OIA) for higher education.  Students can choose which University to apply to, but on the whole users of the NHS and other public services have no choice but to use the services provided.  In further talk of ‘leading from the front’ he gives clear indication that naming and shaming would be the order of the day for any authority with the temerity to ignore the Ombudsman.  He obviously hasn’t read the small print. Despite threatening to name and shame government ministers who ultimately control the delivery of their departments, he still got the job.  I’m sure they will soon put him straight on who is really in control.

Meanwhile, Keith Conradi, the new Chief Investigator at the Healthcare Safety Investigation Branch (HSIB) has also realised that the odds are stacked against him.  Reported in the Health Service Journal on 5th January 2017, Mr Conradi makes a plea for further powers regarding compliance.

• Health Service Journal 5^th January 2017 

• HSIB chief investigator says organisation needs statutory independence and powers
• Keith Conradi reveals plan for intelligence unit to highlight issues for investigation
• Healthcare Safety Investigation Branch could consider multiple incidents in several locations for one investigation
• Emphasised “safe space” protection was not immunity for serious wrongdoing

The head of the NHS’s new patient safety watchdog has said it needs statutory independence and extra powers to demand that NHS organisations respond to its warnings.

Keith Conradi, chief investigator at the Healthcare Safety Investigation Branch, told HSJ he was lobbying the health secretary for additional powers, including evidence gathering and requiring trusts, regulators and the Department of Health to respond to its safety recommendations.

Mr Conradi, who was head of the Air Accident Investigations Branch for 14 years, said: “I am lobbying for legislation that does require a response [to safety recommendations]. This is what happens in aviation – there is a requirement to respond. That doesn’t say you have to comply but if you decide not to you have to give a reason. If you are intending to accept the recommendation you have to say how you intend to work your way through it.

“I believe that without having those powers in the background, people will take these [recommendations] away and no difference will be made.”

Without those powers  – no difference will be made.

So why is it that Mr and Mrs Smith can’t see that a Nanny with no powers of coercion will fail to control unruly children?  Everyone else can see it, including the children.  Why hire the best Nanny in the field, pay them a six figure salary from public funds then deny them the powers to be effective.  What could possibly be the point of that?

 

 

 

 

After a prolonged wait, the draft legislation for the new Public Service Ombudsman has been released by the Cabinet Office.

They have taken their time to slowly extract any teeth the already deficient Ombudsman had and present a proposal for a combined Health, Parliamentary and Local Government Ombudsman that will have fewer powers than any other UK Ombudsman Service.  Most significant is the fact that public bodies will only be required to ‘take account’ of investigation findings and have no obligation to take any action.   All the old loopholes have been retained such as finding harm caused by maladministration, total discretion of the Ombudsman to act as she sees fit and no external audit of the investigation process.  An Ombudsman better to serve the public?  See the facts for yourself.

Review of the draft legislation for the proposed

Public Service Ombudsman 

By Della Reynolds – phsothefacts

January 2017

 

draft_public_service_ombudsman_bill_Dec_2016

(page numbers are those given at the bottom of each page) 

The establishment of a new Public Service Ombudsman (PSO) fifty years after the original legislation provides government with a rare opportunity to ‘better serve the public’ as heralded by the preliminary Robert Gordon review.  Unfortunately, after the long wait for this proposal it is seriously deficient in terms of reform and appears to be no more than a money saving merger between PHSO and LGO which will result in a single ombudsman appointment and a reduction in staff.

Members of PACAC will be only too aware of the anguish caused to members of the public from poor investigation processes and the frustration of trying to hold the current ombudsman to account.  All the deficiencies of the previous legislation, which have facilitated this state of affairs, have been transferred into the draft legislation for PSO.  On this basis, the current proposal will do nothing to improve service delivery or public satisfaction and requires significant amendment.

Chris Skidmore, Minister for the Constitution suggests in the foreword that the proposals will deliver an, “independent and strong ombudsman who can launch an impartial investigation.”  However, an analysis of the draft legislation does not support this statement.

Harm caused by maladministration:

 

1 Overview of Act

1. The purpose of an investigation by the Ombudsman is to establish—
   1. whether the matter complained of involved maladministration or a failure on the part of the authority to which the complaint relates, and

1. if it did, whether the person by or on behalf of whom the complaint was made suffered injustice or hardship as a result of the maladministration or failure. (p7)

 

An investigation based on harm caused by maladministration is a flawed model and should not have been transferred wholesale without consideration of how this requirement has consistently failed the public.

 

• There is no definition of maladministration so the public are unable to assess the validity of their case against given examples.
• Although ‘maladministration’ cannot be defined this woolly concept is used to determine uphold. Without uphold no learning takes place.
• There is no consistency as ‘maladministration’ is decided on a case by case basis.
• Breaches in statutory and non-statutory policies are not considered to be automatic maladministration. These policies should be mandatory as they exist to ensure safety and good service delivery to the public.
• The connection between maladministration and harm is a subjective one and it is possible for the ombudsman to determine, with an insight beyond human powers, that the harm would have been the same in any event.
• Finding maladministration does nothing to check systems and processes, which may be flawed and dangerous.

 

Discretion:

 

The Board of the Public Service Ombudsman

 

4. The functions referred to in subsection (3) include, in particular—
   1. those involving the exercise by the Ombudsman of a discretion relating

to any of the following— 30

1. whether to investigate a complaint;
2. how to carry out an investigation;

• how and when to conclude an investigation;

1. what action to take following an investigation, and (p8)

 

• The discretion of the ombudsman has not been balanced with a requirement to apply the most appropriate statutory or non-statutory regulations to an investigation. The ombudsman can apply whichever regulations she sees fit.
• There is no obligation to ensure that the key concerns of the complainant are addressed in the report and not scoped out. The ombudsman has total discretion on which aspects to investigate. In 2015/16 only 38% of complainants felt that the ombudsman had dealt with the most important aspects of their complaint. (p42) 2015-16-Annual-Complainant-Feedback-Report

 

• There is no obligation to ensure that ombudsman decisions are evidenced based and that public body assurances are substantiated or rejected. In 2015/16 only 34% of complainants reported that the final report provided evidence to support the decisions made. (p42) 2015-16-Annual-Complainant-Feedback-Report
• Total discretion means that the ombudsman cannot be held to account under judicial review as she has been given the legal right to ‘act as she sees fit’. Unaccountable bodies are able to act with impunity.

The investigation process: 

4       Power to investigate complaints

(2.c) it is made to the Ombudsman before the end of the 12-month period beginning with the day on which the affected person first became aware of the matter alleged in the complaint. (p9)

·      This is a serious loophole which needs to be closed.  People are often not aware of ‘the day’ on which they first became aware.  Sometimes it can come after a period of reflection or as further information comes to light.  This clause has been used to the detriment of the public when the ombudsman refuses to accept the time of first knowledge given by the complainant.  For clarity it should be within 12 months of receiving the final closure letter from the public body as this does have a specific date.

·      In relation to time it should also be the case that the public can approach the Ombudsman earlier in the process to request intervention and Alternative Dispute Resolution (ADR) options.  The learning is more effective if it occurs closer to the time of the incident.  In Scotland it is possible to approach the Ombudsman after 20 days.

• (5) The Ombudsman may begin or continue an investigation into a complaint even if the complaint is withdrawn. (p9)

 

• It should be for the complainant to decide if they wish the investigation to continue. When people lose confidence in the Ombudsman service and wish to take court action they should not also have to dispute a flawed ombudsman report where they have not agreed the findings.

 

7 (4)     The Ombudsman may investigate a complaint only if satisfied that—

(4.a) the complaint has been brought to the attention of the designated authority to which it relates by or on behalf of the affected person, and

(4.b)the designated authority has been given a reasonable opportunity to investigate and respond to it. (p11)

 

• ‘Reasonable opportunity’ should be time bound to prevent authorities from delaying the process past the 12 month time limit or beyond opportunity for court action.

 

9 (1) The Ombudsman may not question the merits of a decision taken without maladministration by a designated authority in the exercise of a discretion. (p12)

 

• Many discretionary decisions lead to action or inaction which causes untold harm. What mechanism is there to evaluate discretionary decisions?  When first established, private ombudsman services such as the Pensions Ombudsman and Insurance Ombudsman had powers to examine discretionary decisions which made these bodies powerful champions for the consumer.

 

10 (4) The investigation must be carried out in private. (p12)

 

Evidence in proceedings  –   Schedule 5

 

7 A person may not be required to give evidence in any proceedings (other than proceedings mentioned in paragraph 3(1)(h) or proceedings under section 12) of relevant information obtained by that person as mentioned in paragraph 1(a) or (b).  (p46)

• The ‘privacy’ rule has been used to deny the complainant access to information during the investigation process before a decision is made.  The public have been unable to put the record straight until it is too late.

 

• The privacy rule, coupled with the evidence in proceedings rule has been used by the Metropolitan Police to deny investigation into Misconduct in Public Office offences referred to them by members of the public, effectively putting ombudsman staff, who are Crown Servants, above the law. This is in direction opposition to the rule of law which states that no-one is above the law.

 

11 (7)  person may not be required or authorised by virtue of this section to provide information or to answer any question relating to proceedings of the Cabinet or of any Cabinet committee. (p13)

 

• The Cabinet Office provide themselves with immunity to investigation by the supposedly independent Ombudsman!

 

• (8) designated authority must have regard to any recommendations contained in a statement under subsection (1)(c) in respect of the authority (but is not required by virtue of anything in this Act to give effect to any such recommendations). (p16)

 

• To ‘have regard’ is permission to ignore and the whole investigation process will have been a futile waste of money. There must be some compulsion on public bodies to comply with the findings or to put in writing to the select committee the reasons for decline. This clause makes the ombudsman totally powerless if faced with non-compliance.  The Welsh Ombudsman by contrast can issue a certificate to the High Court for wilful disregard of his report without lawful excuse.  (p11)  Public Services Ombudsman (Wales) 2005

 

Persons within scope of Ombudsman’s jurisdiction

 

• (1.c) person (other than a local authority) who exercises public functions, or provides services in the exercise of such functions, in relation to a particular local area; (p20)

 

• This is ambiguous and it needs to be made clear that all those delivering public services using taxpayer funds are within the jurisdiction of the ombudsman. Currently, it has been determined by PHSO that NHS staff, working within an NHS facility and being paid for by the state are working in a ‘private’ capacity and therefore cannot be investigated.  This loophole must be closed, particularly in view of the increasing privatisation of public services.

The Ombudsman as complaint Champion:

• (1) The Ombudsman must provide information, advice and training to designated authorities with a view to promoting best practice in the handling by such authorities of relevant complaints. (p23)
• Due to its own inadequate investigation procedures the Ombudsman is currently not in any position to give advice on promoting best practice complaint handling and this may be better delivered by the new Healthcare Safety Investigation Branch (HSIB) when it becomes active later this year.
• The Scottish Ombudsman has been given powers to enforce good complaint handling and operate as a Complaint Standard Authority in their 2010 legislation. Acting as a ‘Champion’ will not give PSO any powers of enforcement.
• Government needs to unify the Health Service so that good practice is automatically shared and not allow each area to apply its own complaint handling procedures, which is currently the case.
• Data is needed in a standardised and accessible format so that the authorities and the public have access to real time information on complaint handling. A data revolution was promised by Oliver Letwin whereby all authorities would be required to put complaint handling data into the public domain.  This important aspect seems to be missing from the new proposals.  On the subject of data, the current policy of the ombudsman is to destroy evidence 12 months after closure of the case.  This short retention span makes it impossible to spot recurring patterns or failure hot spots.  In order to gain an overview this policy should at least be brought in line with statutory archive procedures which are six years retention.  This important issue must be addressed in the legislation which has so far remained silent on the matter.

 

Accountability of the ombudsman:

 

The ombudsman is required to lay an annual report before the House and essentially a review of this report is both the start and end of scrutiny by parliament.  The proposal states the following;

Schedule 1

6  (3) The information referred to in sub-paragraph (2)(a) may in particular include information about—

1. how many complaints were received by the Ombudsman during the financial year,
2. how many of those complaints were properly made or referred to the Ombudsman (see sections 4 and 18),
3. how many of the complaints mentioned in paragraph (b) were investigated by the Ombudsman during the financial year,
4. how designated authorities have responded to reports made under section 14(1)(c) in respect of them, and 20
5. any other matters the Ombudsman considers appropriate. (p30)

 

• Absent from this list is a record of the total number of complaints made about the Ombudsman herself. The total number of review requests, how many were provided with review and how many were upheld.  The number of complaints fully upheld as a separate distinction to those partly upheld. Also clear guidance as to the difference between ‘enquiries’ received and ‘complaints’ received.  The continual blurring of these distinctions makes it difficult to determine the percentage of actual complaints investigated.

 

• All complaints about the Ombudsman and reviews are handled internally and there is no provision within these proposals to provide proper independent scrutiny of the investigation process. This again is a significant oversight, if indeed the intention is to ‘better serve the public’.

 

There is a proposal to set up a ‘modern governance structure’ to give greater accountability to the ombudsman service.  The key element in creating a board to hold the ombudsman to account is the selection of the chair and board members.

Membership –   Schedule 2

1. (1) The Board is to consist of—
   1. persons who are not employees of the Board (“non-executive members”) (see Part 2),
   2. the Ombudsman (see paragraph 10), and
   3. persons who are employees of the Board (“employee members”) (see paragraphs 11 to 13).

1. The number of members of the Board is to be determined by the person appointed under paragraph 2(2) to chair the Board (“the chair”) with the agreement of the Public Accounts Commission.
2. The majority of members of the Board must be non-executive members.
3. The following are executive members of the Board—
   1. the Ombudsman;
   2. the chief executive (if different from the Ombudsman);
   3. the employee members. (p31)

 

Her Majesty via the Public Accounts Commission determines the selection of the non-executive chair.  The chair then ‘recommends’ individuals to the Commission for places on the board.  The CEO of the board is automatically the Ombudsman who is also the Accounting Officer.

 

• This looks very much like a closed shop. One safe pair of hands recommending another.  Boards such as this have consistently failed to hold bodies to account and instead become the first line of defence, using their position to limit reputational damage.

 

• There can be no public confidence that such a board would make any significant difference to the accountability of the ombudsman, despite the following statement regarding monitoring.

 

Monitoring service provided by Ombudsman Schedule 2  (23)

(1) The Board must monitor the carrying out of the Ombudsman’s functions under this Act, with particular reference to the quality and efficiency of the service provided by the Ombudsman and the desirability of securing improvements in that service.

• The Board must perform the duty under sub-paragraph (1) in accordance with a scheme prepared by the Board.
• The Board—

1. must submit a scheme under sub-paragraph (2) to the Public Accounts Commission, and
2. must revise the scheme in accordance with any representations made by the Commission.

(4)The Board must inform the Commission about any findings the Board makes in performing its duty under sub-paragraph (1).

(5)Nothing in this paragraph entitles the Commission to question the merits of action taken by the Ombudsman in a particular case. (p37)

 

The board is required to monitor the quality and efficiency of the service provided, but it is unclear whether they will have the collective expertise to do so.  The board will have power over staff and resources but what power does the board have over poor quality of service, if they can only report their findings to a Committee who are legislatively unable to take any action?    If there is serious intent to use the board to hold the Ombudsman to account then this proposal falls short of the mark.  The public would have more confidence in a board which consisted of front-line staff, union representatives, interested charities such as AvMA and the Patients Association and service users.  This would be more in line with the, “vibrant democratic society where public services work for everyone” promise made by Chris Skidmore in the opening to the draft legislation. The board will be unable to hold anyone to account for poor service delivery without the parliamentary committee having the power to take action following receipt of unfavourable reports.

 

Disclosure of information:  (aka The Secrecy Schedule)

 

Schedule 5 allows the Ombudsman and Ministers to make decisions concerning the release of information.  It is difficult to see how any learning could be the result of processes which so completely lack transparency or any reference to duty of candour, as those outlined here.  The ability to maintain secrecy where information is regarded as ‘privileged’ will make it impossible to hold individuals to account, or deliver remedy, which is counter to the core ethos of the ombudsman service.

Privileged information – Schedule 5

 

1. Where the Ombudsman obtains relevant information from a designated

authority or other person by virtue of section 11(6) (which prevents a designated authority from relying on privilege in relation to the production of documents or the giving of evidence), the Ombudsman must not disclose—

1. the fact that the Ombudsman has obtained such information, or
2. the information itself,

unless the designated authority consents to the disclosure.

 

Disclosures contrary to public interest

 

1. (1) A Minister of the Crown may give notice to the Ombudsman that, in the Minister’s opinion, the disclosure of information specified in the notice would be contrary to the public interest.

(2) Where a notice is given under sub-paragraph (1), nothing in this Act is to be read as authorising or requiring the Ombudsman or any other person to disclose the information—

1. to any person, or
2. for any purpose.

• The Ombudsman may apply to the High Court (or, in Scotland, the Court of Session) for permission to ignore a notice given under sub-paragraph (1).

Evidence in proceedings

 

7. A person may not be required to give evidence in any proceedings (other than proceedings mentioned in paragraph 3(1)(h) or proceedings under

section 12) of relevant information obtained by that person as mentioned in paragraph 1(a) or (b).

Restriction on further disclosure

8. A person to whom relevant information is disclosed by virtue of paragraph 3(2)

1. must not use the information except for the purpose for which it was disclosed, and
2. must not disclose the information to any other person unless the designated authority to which the information relates consents to the disclosure.  (p46)

 

Absent from the proposals:

 

• Any reference to staff training needs and levels of expertise required to manage rising numbers of complex medical complaints.

 

• Any suggestion that Health Service Complaints should be allocated their own service within the umbrella of PSO with a designated lead Ombudsman equipped with suitable expertise.

 

• Mention of Alternative Dispute Resolution (ADR) models and how to incorporate these into the new PSO service.  Need for standardisation of ADR providers. Specific training required for Ombudsman staff in selecting or delivering mediation.

 

• Increasing privatisation of public services and the issue of access to information from bodies not covered by the Data Protection Act.

 

• A proposal to make it a requirement for public bodies to disprove allegations rather than place the burden of proof on the individual citizen with limited access to the evidence. (Presumption of honesty)

• Any duty to identify and notify patterns of failure (presently hampered by shortage of data and short Ombudsman retention policy).

• Power/duty to initiate or direct others such as CQC to investigate systemic failures.

Currently, this proposed legislation will deliver an ombudsman who has such limited powers and resources that it would be better to scrap the service altogether than give false hope to the public that they will be able to depend on a strong, independent ombudsman able to deliver an impartial investigation.  The ombudsman service will be restricted in what it can investigate, how it can investigate, who it can report to and most importantly will have no power to deliver change.  It will have to negotiate and compromise with public bodies in order to claim any justification for its existence.  A far cry from the recent promise of Theresa May to tackle the burning injustices that undermine the solidarity of our society. the-shared-society-article-by-theresa-may

 

This review of the draft legislation for the new Public Service Ombudsman has been undertaken by members of the public; previous service users who have all been failed by ombudsman service.  We are not legally trained and may well have further comment to make once the full legal implications become apparent at scrutiny.  We are able to offer unique insight into the failures of the previous legislation and consequently wish to take an active part in the scrutiny process to ensure that the new Public Service Ombudsman really does ‘better serve the public’.

 

 

There is concern among those who have had long battles for justice through the NHS complaint system and the opaque Ombudsman process, that the HSIB recommendation for ‘safe space’ investigations will be misused to deny families information.

Peter Walsh of AvMA and others have expressed concern that the notion of ‘safe space’ contradicts the long fought for ‘duty of candour’.   Bereaved or harmed families need to know the truth and must not be kept out of the investigation process on the basis that it is carried out in secret.  They need access to all the information, not just a final summary.  Please read and comment on the phso the facts submission to the HSIB consultation on the subject of safe space.

PHSO the facts response to the consultation “Providing a “safe space” in
healthcare safety investigations”

4. Do you consider that the proposed prohibition on disclosure of investigatory
material should apply both to investigations carried out by HSIB, and to
investigations conducted by or on behalf of NHS Trusts, NHS Foundation Trusts and
other providers of NHS-funded health care?

No. it should only apply to investigations carried out by the HSIB and only then as a pilot
test scheme with clearly defined and published critical success factors (CSIs), and on
condition that the HSIB’s performance against the CSIs is made public.
The reasons why prohibition on disclosure should not apply to investigations conducted by
or on behalf of NHS Trusts, NHS Foundation Trusts and providers of NHS-funded care
are:
1. Experience and evidence indicates that many of these organisations and the
investigators they commission continually fail to uphold established, proper investigation
and disciplinary processes.
2. Experience and evidence indicates that the calibre of many leaders of these
organisations is poor and they indulge in “comfort-seeking” at the expense of truth (1)
Therefore “safe space” and prohibition of disclosure of investigatory material would simply
give poor leaders more opportunity to indulge in “comfort-seeking” behaviour away from
public scrutiny and accountability.
The prerequisite for proper consideration of “safe space” and prohibition on disclosure for
these NHS organisations is the removal from them of corrupt and failed senior people.
Without this the proposal is wrong and dangerous. 
The extent of corrupt and dysfunctional leadership in the NHS is repeatedly ignored by the
Department of Health, NHS England, NHS Improvement and the Care Quality
Commission. As far as we are aware poor leaders are not and never have been a
significant problem in air accident investigations. That is why simply bolting an air accident
model onto NHS organisations which are led by corrupt and dysfunctional NHS leaders is
doomed to fail patients, families and staff.
Moreover the Department of Health and NHS England need to be honest about the extent
to which failings in their own culture and leadership have allowed corruption and
dysfunctional leadership to thrive in some NHS organisations. They need to acknowledge
it and deal with it.
Your consultation paper says “Academic evidence shows there is a strong connection
between ‘psychological safety’ and a culture of learning within an organisation”, but you
only cite one research case from 1999. It is unsafe to base this consultation on just one
piece of research evidence which is seventeen years old.
(1) http://qualitysafety.bmj.com/content/early/2013/08/28/bmjqs-2013-001947.full 
This paper defines comfort-seeking behaviour as follows:

“Comfort-seeking behaviours are defined here as being focused on external impression
management and seeking reassurance that all was well; consequently, what was available
to organisations was data, but not intelligence. Serious blind spots could arise when organisations
used a very limited range of methods for gathering data, were preoccupied
with demonstrating compliance with external expectations, failed to listen to negative signals
from staff or lacked knowledge of the real issues at the frontline. Comfort-seeking
tended to demonstrate preoccupation with positive news and results from staff, and could
lead to concerns and critical comments being dismissed as ‘whining’ or disruptive behaviour.
When comfort-seeking was the predominant behaviour, data collection activities
were prone to being treated by sharp-end staff as wearisome and fruitless accountability
exercises. Some staff reported that they felt the main purpose of much data collection was
to allow individuals to be blamed if something did go wrong, not to make the system safer.”

5. For those investigations undertaken by or on behalf of providers and
commissioners of NHS-funded care, should the proposed prohibition on disclosure
apply only in relation to investigations into maternity services in the first instance or
should it apply to all investigations undertaken by or on behalf of such bodies?

No. There should be no consideration of prohibition on disclosure in respect of providers
and commissioners of NHS-funded care until:
1. Successful completion of an HSIB investigation pilot which has tested “safe space” and
non disclosure of investigatory evidence.
and
2. Corrupt and dysfunctional NHS leaders have been removed.
3. The NHS implements one mandatory standard of investigation for misconduct and
consistent, mandatory standards of disciplinary sanctions for NHS board members, other
leaders and staff.
4. NHS organisations are mandated to follow proper standards of investigation which must
be established by HSIB and must take into consideration how evidence from
witnesses who are neither NHS staff nor family members will be handled. The
treatment of these witnesses and their evidence does not appear to have been
adequately considered in the establishment of HSIB. 
Also we do not believe that the case for restricting initial investigations to maternity has
been satisfactorily made therefore the scope of an HSIB pilot should properly reflect the
composition of serious clinical incidents.

6. Do you have any comments about the type of information that it is proposed will
be protected from disclosure during healthcare investigations?

Yes, we think this looks like a ruse to shut down the ability of patients and families to
pursue potential medical negligence action.
This consultation provides no evidence to assure patients and families that this is anything
other than a means to restrict their rights of legal redress.

7. Do you agree that the statutory requirement to preserve the confidentiality of
investigatory material should be subject to such disclosure as may be required by
High Court order?

No, for the reasons given in answer to Q 6.
No disclosure should be subject to High Court order unless and until the Government
satisfactorily demonstrates that this proposal is not simply a means to restrict legal redress
for patients and families.

Also we would like to point out that there is a serious omission in the consultation.
It fails to take any account of the introduction of medical examiners from April
2018,“to review and confirm the cause of all deaths”. This must be urgently
addressed. 
http://www.ukpol.co.uk/2016/03/09/jeremy-hunt-2016-statement-on-mistakes-in-the-nhs/ 

8. Do you agree with the proposed elements of the test to be applied by the High
Court in considering an application for disclosure?

We are not in a position to answer this question until our concerns in response to Qs 6.
and 7. are addressed.

9. Do you have any views on the proposed exceptions that would apply to the
prohibition on disclosure of material obtained during investigations by the HSIB and
by or on behalf of providers and commissioners of NHS service?

As stated before, until corrupt and dysfunctional board members and leaders are removed
from the NHS, “safe space” will simply enable them to engage in cover ups and
“comfort-seeking” behaviours, contrary to the interests of patients, families, staff and truth,
justice and accountability.

10. Do you have any views on where the bar should be set on passing on concerns
to other organisations whose functions involve or have a direct impact on patient
safety?

We think the question is irrelevant as “comfort-seeking” leaders will always obstruct the
passing of concerns to other organisations.
A recent example is this review http://www.thebristolreview.co.uk commissioned by NHS
England (NHSE).
It examined a number of cases, two of which were also the subject of PHSO
(Parliamentary and Health Service Ombudsman) investigations. The PHSO found failings
that amounted to breach of General Medical Council (GMC) and Nursing and Midwifery
Council (NMC) codes, the NHSE review did not, or if it did, it was not mentioned in its
reports. Despite these failings neither the PHSO nor NHSE made any referrals to the GMC
and NMC.

Disgracefully the Department of Health itself is complicit in not passing on concerns
to other organisations whose functions have a direct impact on patient safety, as in
this example: 
https://www.whatdotheyknow.com/request/160245/response/396390/attach/4/Appendix%20D.pdf
It is a link to redacted emails circulating in the Department of Health’s Professional
Standards Unit in early December 2010, shortly before an inquiry report into pathology
problems in Bristol was released. In the light of failings by medical directors and other staff
the question is raised as to whether any of them were subject to local disciplinary action or
referred to the GMC (General Medical Council). When one of our members asked the
Department what was the answer it told her that it held no information on it. This response
is not credible because in September 2010, a few months before the inquiry report was
issued, one of the medical directors mentioned was moved to Leeds to take up a post as
Chief Executive of a national organisation funded by the Department of Health. Clearly a
decision was taken by the Department of Health to protect his career rather than ensure
that he was subjected to appropriate investigation and disciplinary proceedings in respect
of the failings acknowledged by the Department’s Professional Standards Unit.

In summary, concerns are not passed to organisations whose functions have a direct
impact on patient safety and the Department of Health is guilty of this. Therefore the
department’s proposal to put a bar on passing on such concerns is wrong because it is
simply an attempt to legitimise poor standards of behaviour, in which the department is
complicit.
The discussion about making an exception for referrals to the police is immaterial because
currently evidence of NHS criminality is not referred to the police by NHS organisations
and regulatory bodies. Therefore proposing an exception to allow disclosure to the police
will have no effect. Potential criminal behaviour still will not be referred to the police,
except by patients and families, from whom it is likely to be deliberately concealed using
the “safe space” excuse.

11. Do you consider that the exceptions proposed could undermine the principle of
‘safe space’ from the point of view of those giving evidence to investigations?

The case for the stated principle of “safe space” has not been made.
We think it is already undermined because all the evidence points to it being an attempt to
legitimise the sort of NHS cover ups the public sees time after time, a recent example
being this:
http://www.bristolpost.co.uk/four-year-old-died-at-bch-after-being-so-dehydrated-he-was-forced-to-suck-wet-wipes/story-29847608-detail/story.html
“The conclusions from the Parliamentary and Health Service Ombudsman (PHSO) go a lot
further than that of a huge review carried out by NHS England which was published in
June”.
The above statement refers to the fact that separately, both NHS England’s review team
and the PHSO investigated the same two cases. As the media coverage of one case shows, on this occasion the PHSO’s investigation was better quality than NHS England’s,
which families described as a “whitewash”.
Moreover the NHS England review of the Bristol’s children’s cardiac service ignored an
essential element of patient safety investigation because it failed to forensically examine
the trust’s unsatisfactory culture and attitude towards risk management and its response to
serious incidents, which is one of the most significant reasons for its history of patient
safety problems.
https://nhscasestudy.wordpress.com

12. Do you support the principle of a ‘Just Culture’ (that would make a distinction
between human error and more serious failures) in order that healthcare
professionals might come forward more readily to report and learn from their
mistakes without fear of punitive action in circumstances that fall short of gross
negligence or recklessness?

We do support this principle, but we believe a significant problem that has been ignored is
the extent to which health professionals make mistakes as a result of doing the bidding of
negligent and reckless leaders (e.g. heads of division and board members) who prioritise
reputation and targets over patient safety and are never held to account because they
refuse to apply proper investigatory and disciplinary processes to their own conduct and
are allowed to get away with it by regulators.

13. If you consider that the prohibition on disclosure should be subject to an
exception allowing for the disclosure of certain information to patients and their
families, what kind of information do you consider should be able to be disclosed in
that context? And when would be a sensible, workable point for patients/families to
have access to information – eg, should they see a pre-publication draft report for
comment?

The current proposals for prohibition on disclosure are unworkable for the reasons
described in previous answers so we have nothing further to add.

14. Do you see any problems in a requirement that investigatory bodies (such as
professional regulators, coroners and the police) must apply to the High Court if
they wish to gain access to information obtained during investigations by the HSIB
or by or on behalf of providers or commissioners of NHS-funded care? !
Yes, for the reasons set out in previous answers.

We regard it as abhorrent that the police and coroners should be expected to divert
resources and public money to apply for access to information in order to conduct
investigations. They should not have to so to such absurd lengths to prise information out
of the NHS in order to perform their duties.
A coroner recently halted an inquest to consider whether NHS staff may have tampered
with evidence.
http://www.bbc.co.uk/news/uk-england-38004295

The existence of serious and potentially criminal allegations involving an NHS trust
and its lawyers illustrates that your proposals to entrust NHS organisations with
their own “safe space” investigations and make it more difficult for the police and
coroners to do their jobs is inappropriate, offensive to patients and families, and
dangerous.

15. Do you have any concerns about the use of the phrase “safe space” in relation
to this policy; and, if so, do you have an alternative preference?

We think the principle of “safe space” is thoroughly discredited in these proposals. That is
far more important than what it is called.

16. Do you see any problems in exempting information obtained during healthcare
investigations from access under the Freedom of Information and Data Protection
regimes?

Yes – it would simply create a bigger “safe space” for the culture of lies and cover up which
pervades many parts of the NHS.

17. Do you agree that guidance, or an alternative source of support, should be
developed?

It is essential that nobody is allowed to be an investigator unless they have been trained
and gained experience in conducting investigations. The HSIB must set the standards.

18. Do you think it would be helpful for NHS staff to be supported by a set of agreed
national principles around how they would be treated if involved in a local safety
incident investigation; and, if so, do you have any suggestions for the areas that
such a set of principles should cover?

The HSIB should set the standards and they must be mandatory.

19. Do you have any concerns about the impact of any of the proposals on people
sharing protected characteristics as listed in the Equality Act 2010?

Yes, because they take no account of patients and families who have protected
characteristics as listed in the Act and whose experience is that these protected
characteristics are deliberately used against them to undermine them and their evidence in
investigations.
Also we allege, based on our experience and supporting evidence, that rights of
patients, families and witnesses under the Data Protection Act 1998 and the Human
Rights Act 1998 are routinely breached by public authorities, including the Parliamentary
and Health Service Ombudsman (PHSO) during investigations.

Where complainants and witnesses allege breach of any or all of the Equality Act
2010, the Data Protection Act 1998 and Human Rights Act 1998, by NHS
Organisations, investigations must automatically be referred to the HSIB. 

20. Do you have any concerns about the impact of any of the proposals on families?
If you envisage negative impacts, please explain.

Yes – we believe that the proposals will merely create a bigger safe space for the NHS
cover up culture and make it more difficult for families to access truth and justice – for
example by making it more difficult for police and coroners to carry out their duties.
There is an urgent need for a system to deal with complaints and incidents concerning
patient safety, staff conduct and leadership failings at an early stage because NHS trusts,
commissioners and regulators have demonstrated time after time that they are incapable
of:
a. conducting investigations and disciplinary proceedings according to standards of
accepted best practice.
b. treating patients, families and witnesses in a just manner.
c. resisting the urge to defend, delay and deny.
HSIB, which is only resourced to investigate thirty cases per year is unlikely to have any
real and sustainable impact on the problem. Replacing corrupt and failing leaders with
people of the calibre to deliver a just investigative culture is required to kick-start real
improvement.

We conclude by focusing on the concept of “safe space” in relation to the PHSO (and the
future Public Service Ombudsman) and wish to make the following points:

1. We believe that the concept of “safe space” will be used by NHS organisations to
further reduce transparency for the complainant patients and families.
2. The PHSO must develop more transparent investigation methods, sharing the
information received with all parties throughout the process and before decisions are
made. This is contrary to the idea of “safe space”.
3. We are concerned that once the HSIB uses the safe space model it will be taken up
and used by the PHSO to further prevent access to evidence and fair appraisal.
4. We believe that Parliament is missing an opportunity in respect of ombudsman reform
by failing to adequately consider the ways in which the ombudsman could more
effectively support complaint resolution. For example:
a. By adopting the model used in Scotland whereby a complainant can approach the
ombudsman within 20 days of raising a complaint if it has not been resolved at local
level. This would prevent local organisations from deliberately delaying the process.
b. On receipt of complaints the ombudsman could, before considering a full
investigation, be involved in supporting local resolution through mediation – similar
to alternative dispute resolution in legal cases. This would reduce the number of
complex investigations, save public money, provide early resolution – which would
minimise distress for all concerned, and provide opportunities to learn and
implement lessons when the events are fresh. We believe that this process could
work for well over 50% of the cases eventually investigated by the ombudsman
under its current practices.

14th December 2016

How must the PHSO be reformed to carry out any kind of competent scientifically valid complaint remedy-one clear step

1.PHSO and the present context:
I agree with PACAC what is needed is something like HSIB but this will only deal with a very small proportion of cases coming through what everyone agrees (eg recent CQC report) is a still seriously failing investigation and learning system despite everything that has been concluded over years of excellent reports, many by your committee.

The only system that reliably works is the NRLS at NHSI addressing novel and under recognised risks and that depends entirely on Trusts reporting and a team of committed safety experts and wider consultants and advisers including myself, one of a number of patient public voices PPVs

2. PHSO Some root cause analysis needed
I agree with PHSO the facts that the draft Ombudsman legislation needs serious scrutiny and much amendment. I agree that some of key the failings of PHSO are around bias and a lack of both transparency and accountability.

The key question to me, and which has been revealed to me through my experience with 6 investigators, 2 leading managers and 2 senior reviewers, is to ask WHY these failings occur?

I don’t believe a root cause analysis of why this PHSO system fails so badly for so many has been done. If NHS interventions should be evidence-based surely so should the system to investigate harm caused by the NHS? I think PACAC should urge some work in this area, from perhaps HSIB?

3. PHSO: a legalistic model : not a learning model

Reasons suggested for the many failings of PHSO by understandably agitated complainants include:

• Cover up by Trusts and other public authorities – their main goal is reputation protection
• PHSO being created as protected ‘dustbin’ for unresolved complaints – a Government cover up
• Incompetence and extreme slowness in the PHSO – not able to or willing to read, understand, treat patients reports as evidence. Equally, acceptance of unsubstantiated assurance from public bodies.
• More recently PHSO totally inundated by cases so resort to an even more a rushed administrative process using interim staff.

As someone with years of medical and social service professional training and experience working as a front-line professional, community care manager and researcher is that most significantly it uses an-‘administrative-injustice-legal-blame’model .This model can easily lead to failure to uncover serious system failings which I will explain below

By administrative-injustice-legal-blame’model I mean ‘investigations’ focusing on finding ‘unreasonable’ actions influenced by the negligence Bolam definition of failing and which results in unremediated ‘injustice’.This whole model is inherited from negligence claims and is very different and often totally contrary to the goal of finding out why harm was caused and how to prevent it.

It is also contrary to model investigation practice summarised by the NPSA Incident decision tree where once foul play, recklessness, and failure to follow guidelines has occurred then any failing and harm once guidance has been followed indicates system failure – not reasonable. The issue is not the blame of the worker but the reason harm occurred and system failure. Inadequacy cannot be ignored any more as Mid Staffs and concerns of your committee about PHSO shows, but we need to understand why these failures occur http://www.ahrq.gov/downloads/pub/advances/vol4/meadows.pdf  page 5 here decision tree

In my case a common practice of a drug’s use, despite my raising the issue of contradictory guidance was, and still is regarded to be ‘reasonable behaviour’ …  So I was forced to seek redress outside all existing systems, and years later via NHS Improvement Patient Safety got what became two national Patients Safety Alerts.
https://www.england.nhs.uk/2014/11/psa-naloxone/

https://www.england.nhs.uk/2015/10/psa-naloxone-2/

The PHSO could not grasp system failure if failings were of the system, even though as we know notions of good practice are being refined all the time.

I was left to seek a safety alert because trusts and the PHSO failed to understand that ‘normal practice’ was in fact harmful so identifying systemic problems. I think Scott Morrish hinted at this in your recent Committee hearing

PHSO is not a learning environment:

The chance of this serious failure I believe is also increased by the present, model of lay-led investigation of complaints comprising

• complainants make statements – no systematic way they are presented-harm is not the core focus
• Trust reports and doctors statements are often legally crafted by medical defence lawyers and legalistic trained advisers to minimise serious admissions of failure and protection of reputation-best interest often used retrospectively even if contrary to patients rights around consent, capacity etc
• lay investigators with no medical knowledge, training, clinical experience (except for that they pickup third hand on the job) have to create a narrative by drawing on advisers-someone with clinical knowledge training,but in my experience not always the right degree of expertise when it comes to harm and possible system failure (they are asked to look at reasonableness-not gold standards of care even if some people need this, eg complex cases like mine), who is asked a series questions set by the lay person, and then

a) previously: this external advisor was sent the papers wrote a response which the lay investigator cut and paste from to create a narrative within this injustice framework

b) *now, due to budget cuts as part of a new cost saving (?speedier -not in my case –third report taking 2.5 years already), has a ‘chat’ with the internal adviser who then writes up a formulation based on this conversation written up signed off later by the adviser)

This model makes for a very lengthy process, looking at a limited number of aspects of the case (asking: was this a reasonable course to pursue?) –and everything else follows. Judgement frustratingly lengthy and frustratingly incoherent to complainants and patients who simply want to know and understand why harm arose and how to prevent it. Not dancing on a pin about reasonable actions.

As Della of PHSO the facts summarised it to me:
‘The model of administrative justice which relies upon finding maladministration is flawed.  It prevents scrutiny of discretionary decisions by public bodies.  These cannot be taken into account unless maladministration is identified.  It prevents scrutiny of whether processes are fit for purpose with the idea being there can be no maladministration if process is followed (and even when it isn’t according to PHSO).  There is no definition of maladministration to provide consistency of decision making and according to Helen Holmes, head of legal at PHSO it is not possible to define the term.  If the term is so difficult to define then it shouldn’t be used as the core criteria for uphold.  Harm should be used instead.  Was harm caused by the actions or inactions of a public body?   

What is needed

For me the whole model, undefined maladministration, injustice, searching for unreasonable action is totally different to and incompetent when trying to do root cause and human factors analysis of clinical incidents which is the ONLY way learning can occur as your committee has learned from international experts like Vincent and Macrae

As Scott said what is neglected to be examined is the ‘quality of investigations’. Hence my call for scientific evidence looking at why PHSO fails, ideally using HSIB expertise.

My case would be a prime example, and even the PHSO admit numerous failings and have promised an external review looking at all of my concerns when their last investigation is completed (in the coming weeks/months)

As another complainant Julian Stell has put it (personal communications):  ‘The NHS rightly administers evidence based clinical treatment. Yet the PHSO routinely publish oral and written witness evidence to Parliament that demonstrate NHS Trusts routinely fail to administer evidence based clinical investigations. Why?’

Moving away from the maladminstrative injustice blame model, as Trusts are urged to do under the Just Culture scenario surely PHSO must also follow this. PHSO determine that maladministration cannot be defined, so on this basis it should not be used as the central criteria for uphold.

What is needed is a clinical, human factors-medical decision making and learning model where harm assessment, investigation, remediation’ is the focus. This is a serious and still under-articulated challenge to the whole administrative-justice ‘maladministration’ model of PHSO and must be reformed as part of the legislative process. I hope you will consider this and seek advice from experts, like HSIB how to pursue this as the PHSO is reformed.

The bottom line of course, is whether there is a genuine will to provide an effective body for the protection of the public.This reform of the PHSO is required to start to move in this direction in a speedy enough way, and not the one step forward one step backward type way as I have seen close hand (* b) above

Richard von Abendorff

PPV NHSI and patient safety ambassador Patients Association (personal capacity)

 

Dear Mr. Jenkin,

This week (19.11.16) I attended your keynote speech to the Institute for Government regarding Civil Service reform, or as it turned out, the failure of Civil Service reform.  You made a number of interesting points which are relevant to the reform of any public organisation, such as the Parliamentary and Health Service Ombudsman (PHSO), whose own reform is long overdue.  For those unable to attend the meeting it can be viewed in full here:

Bernard Jenkin – Keynote Speech

You gave something of a historical review of Civil Service reform and outlined the more recent attempts by your own committee before concluding that,  “reform is not something you can do to an organisation from the outside.”   If this is the case then reform relies upon dysfunctional bodies having the insight to identify and modify their own weaknesses.   In the case of PHSO their five-year change programme under the leadership of Dame Julie Mellor has been a spectacular failure.   phso-can-a-dysfunctional-organisation-reform-itself/    As you aptly pointed out, reform depends on effective leadership but you also stated that leadership is the last to admit the failings of the organisation.  Without external involvement, the organisation will writhe through years of sorry decline as those who can leave (24% staff turnover at PHSO) and those who remain are unable to find an outlet to voice their concerns.  PACAC, your committee, are the only parliamentary body who can oversee the Ombudsman, but with your hands-off approach, this organisation has been allowed to limp from one failure to another delivering scandalously poor investigation reports to the public.

 

 

At the heart of the problem and the elephant in the room, is the fact that protection of Civil Servants and Crown Servants offers protection to the Ministers, to government and to everyone else who might be held to account for poor decision making and basically corrupt behaviour.   Parliamentarians choose the leaders of these organisations who are all clones of previous leaders.  So we have an endless loop where only the names change, but the process stays the same.  Has civil service reform failed due to the lack of genuine impetus to reform this body from those with the power to do so?  We have had reform of the benefits system, which was imposed from the outside and behaviour was modified through punitive sanctions.  Equally, government have achieved reform of the NHS through the imposure of new legislation and new work contracts.  These two events did not take years of delicate negotiation to modify internal cultures and just goes to show what can be achieved in a relatively short time when those in power can see the benefits of the reform.

External public accountability, if consistently applied, can alter behaviour.  Substantial compensation payouts would sharpen the focus of organisations controlling tight budgets while public reports of upheld complaints would make it clear to all parties what went wrong and why.  Yet years of light-touch, self-regulation backed up by regulatory bodies who are devoid of effective enforcement powers have allowed public servants to act with impunity.  As you say, we may have moved from the ‘age of deference’ to the ‘age of reference’ however, parliamentary and public bodies use every trick in the book to keep the truth under wraps and deny justice to the public.

Reform of the Civil Service, reform of the Ombudsman and reform of parliament itself will continue to revolve like the ‘cracked record’ you mentioned because the present system suits those who are on the inside and they care not for those who are on the outside.

If reform requires internal change then you need to appoint change makers;  people who think outside the box, do not bow to the establishment and have the courage to take risks.  You have the opportunity afforded to you by the early resignation of Dame Julie Mellor, the Ombudsman to make such an appointment for the PHSO.  Will you take this opportunity to deliver a change leader, to ensure there is improved accountability across public services or will you select another safe pair of hands?

Actions speak louder than words Mr. Jenkin.

Yours sincerely,

 

 

Della Reynolds

PHSO pressure group