#PHSO and the flawed review process

A full review by Richard von Abendorff:

PHSO damned in 143 paragraphs…. and by itself!

But this isn’t the half of it:

Some questions for Professor Behrens if his own report is to be taken seriously!

Richard von Abendorff March 17th, 2018

2018. Introduction and Summary These are key questions I have emerging from the upheld, but seriously flawed, complaint investigation ‘review’ of the PHSO’s own service which I will be asking the Ombudsman, Rob Behrens, on 27th March 2018.

It is about how the PHSO dealt with the case of my mother’s death; the avoidable suffering she endured in hospital in the last 3 days of her life; the trauma we, her family, experienced as a result of her ‘bad death’; described by the Coroner’s expert as ‘Iatrogenic suffering’ (Def. Iatrogenic: induced inadvertently by a physician or surgeon or by medical treatment or diagnostic procedures).

The Hospital Trust (the Trust) responsible for the failings in my mother’s care could not deny many of the failings, although they dissembled on a key failing. But their action plan following a 5-month investigation was so weak I had no confidence that the same thing would not happen again.

My case has now been with the PHSO for nearly 6 years. Despite 3 investigations, a reassessment and 3 reviews by the PHSO, they have repeatedly effectively praised the Trust’s action plan; contrary to the CQC’s view when visiting the Trust at similar times which concurred with my serious concerns about ongoing poor care due to systemic failings at the hospital.

My primary goal has always been to ensure the Trust learns from my complaints and changes its practices. This has been totally undermined by the PHSO’s role and processes time and again all despite its repeated re-structuring and changes of leadership which attempted to improve its processes.

This summary is based on the PHSO internal review which lasted approx. 7 months; it does not reflect the sheer volume of evidence and detail provided to the PHSO over the last 6 years, but it does show how little, if anything, of real substance I have achieved. The review being critiqued here was of a process that went from 2014 to 2017

Rob Behrens has publicly asserted how much he has learned from wronged complainants; but it is not enough to say he is learning from us, without taking any steps to transform a service flawed in fundamental ways as evidenced in my case by repeated multiple failings1

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***A 2 page executive summary for this report has been produced and is available at the PHSOthefacts blog *** or by emailing laraginfo@yahoo.co.uk

Below I summarise key flaws of the review that I have identified and the questions they raise for anyone wanting to see the PHSO improve.

1. Very many serious failings admitted by PHSO

Of the 143 paragraph summary letter of apology and annexed report, at least 53 of the paragraphs admit some failing by PHSO in the treatment of my case when attempting to investigate serious issues like: misdiagnosis, drug maladministration, breached patient consent on more than one occasion, errors in use of dangerous equipment subject to a safety alert, breach of or lack of important hospital policies, lack of appropriate specialist or senior clinical guidance, gaps in many types of staff, neglect of and failure to adequately manage severe pain of a very frail ,later dying person , and the active undermining of established successful pain control.

Of the upheld ‘service review’ complaint 19 paragraphs identify errors including multiple delays; failing to investigate what they should have investigated; confusion about whether to interview health care staff ;lack of PHSO staff continuity; poor case handovers between teams; lack of time to do the job; lack of promised expert oversight; confusion as to whether to look at root causes and how to summarise the abundance of failings of the Trust; back tracking and not honouring promises made, unequal treatment of Trust and the complainant, including disrespectful comments and breaching your own service charter.

1. But still multiple serious outstanding flaws-and no feedback allowed whatsoever

Ninety-five out of the 143 paragraphs in the report exhibit one or more of: major errors2; serious evidence or factual omissions; un-evidenced or arbitrary assertions; failure to find evidence (‘cannot see why’ or vague or fudging generalisations e.g. using ‘most’ or ‘on the whole’ without evidence); finally distortions of events or incoherent, contradictory and flawed conclusions across the report.

Given that many of the remaining paragraphs are included only to summarise my complaint, this is a huge proportion of the report and a dreadful indictment on the process.

The review repeats many of the errors, omissions, misunderstandings that I complained about after the 3 previous investigations; the majority of which were totally ignored at draft report stage of the process, where feedback is invited. During the review process this is not the case; meaning the PHSO’s own failings are less open to challenge despite the fact it is investigating criticism about its own processes.

The PHSO has ruled out the possibility of external reviews, leaving it free from any real scrutiny and able to protect its own interests and reputation over and above all else.

As the review process has no opportunity to feedback before the final response is issued, and little/no interaction with the complainant whilst the review is undertaken, is it acceptable, particularly when so many questions/complaints remain unanswered, that the only appeal process available to a complainant is a Judicial Review?

1. Recommendations are very weak

The resolution of this review is ‘training, communication, clearer processes and ‘professionalization’ of staff and/or assertions, without evidence, that the necessary reforms have already occurred.

This is not adequate, when my case, at numerous stages, received input from ‘senior’ and/or ‘experienced’ staff and directors’ and this report focuses on the last very recent investigation 2014 to 2017.This surely suggests failings are more profound and systemic than some staff ‘needing more ‘ training’ .

Also, many failings are extremely specialist and/or technical e.g. medical diagnostic, equipment and pharmaceutical issues e.g. legal, risk assessment and risk management issues:

Surely some investigation expertise is needed to resolve the failings you identify, particularly in light of the fact that it was the lack of appropriate expertise that led to my mother’s and my experiences?

The lack of any serious analysis of why PHSO failings occur is a very serious and recurring weakness in the report and, unless addressed, will prejudice the validity and likely effectiveness of future staff training.

1. The key negative (not upheld) conclusion flawed by evidenced provided in the report

While my criticism of the PHSO’s service is upheld (19 core admissions of failure in a 32 paragraph annex), my complaint about the third ‘upheld’ complaint investigation decision (which I allege is so seriously flawed as to be useless) is not upheld in this report as ‘the service problems PHSO identified did not have a significant impact on our decision and the overall outcome’.

Apart from being a contradictory statement, this assertion is un-evidenced and contradicted by the detailed substance of the review Annex 1. In this 78 paragraph annex to the report3, the PHSO itself admits failings in 37 of these paragraphs (all focusing on this third ’investigation’) 4

These include 10 key areas of failings:

1. ‘Issues omitted from investigation’ including dignity and human rights around personal care and an advanced directive; the implementation of the nationally controversial and now nationally withdrawn Liverpool Care Pathway and the lack of any end of life care policy; the Trust breaching its own complaint handling and vexatiousness policies (classic maladministration which PHSO avoided looking at in any detail over 6 years); multiple staffing level concerns admitted by Trust (‘jurisdictional advice’ was not taken contrary to assertions and expectation raised) and more; none of which are properly discussed and/or explained.
2. Evidence considered including action around equipment subject to a national patients safety alert at the time (causing many hours of my mother’s suffering right up until her death); and the PHSO’s changing perspective on which experts to use
3. ‘Findings of service failure’ poor explanations; un-evidenced findings on Trust’s complaint management failings; inadequate assessment of failings relating to the Trust’s incident reporting; failing to comment on human rights issues and/or breaches of FREDA

principles

4. ‘consideration of injustice’ the nature of the suffering of all, the role of the pain in the cause of death (despite Director and public assurances to address this most serious of failings)
5. ‘adequacy of trusts action plan’ a ‘lay view’ taken 5, without the use of advisers and actually ignoring advice gained; not sharing with the CQC
6. ‘our recommendations’ e.g. pain recording
7. ‘How PHSO explained decision’ including delays and consent in line with GMC guidance and trust response to PHSO report
8. ‘sharing with others’ sharing with the CQC, naming the doctor
9. consideration of complainant comments’-inaccurate information given, not adequately consider comments including key omitted areas
10. ‘Trust compliance’ Trust fell short include key drug error, and safety equipment continuing incidents, also staffing levels adequate

Additionally, this conclusion is contradicted in paragraph 23 of the covering letter ‘PHSO did not share the investigation report with the CQC at the appropriate time. We will do this now and draw attention to the matter referred to in paragraph 45 of annexe one, so the CQC is aware of our findings and can decide whether it needs to take any action. ‘ It should be added that paragraph 46’s proposal may lead to CQC concluding more. Although the whole report fails to note that I once again through my own initiative did share the report with CQC, and Ralph Corrigan was informed but your reviewer failed to note this

As the report admits the action plan was not adequately tested for robustness by an expert and some relevant evidence that was gained was ignored.

Given all of this, how can a senior customer care officer (not an expert, not even an investigator and definitely not independent of the PHSO) conclude that 37 paragraphs of admitted failings (at least) make no significant difference to the outcome?

Furthermore, the review does not summarise any key ‘outcomes’ or active recommendations from the final investigation to evidence what might/might not make a significant difference and/or how/why. In fact, the review refuses to answer my evidenced assertion that the PHSO has had no positive effect on the Trusts action plan, even when PHSO finally upheld my complaint (where one of the core issues addressed by PHSO was ignored by the Trust).

Surely ANY improvement to the investigation process AND service delivery 6 (of 50 identified failings by PHSO) should have led to some kind of positive outcome?

When these admitted failings are put alongside the service failings identified in Section C it shows that you are not delivering on the key priorities of your service; most notably coherent plans, compliance for recommendations and dissemination of learning. There are also

multiple breaches of your service charter. Taking all of this into account you are failing to reach the standards you set yourself.

I believe that the conclusion the PHSO has reached in this not upheld aspect of the case was predetermined, as found in the recent Court of Appeal case http://bit.ly/2GiKQAH.

1. The review refuses to address some of the most serious un-denied concerns raised during 6 years of investigations:
2. Fails to look at or learn from flaws of its TWO previous ‘investigations’-each time the decision to do this was deferred to the next one: no justice, no learning, and danger of repeating errors again and again: which may explain why it occurred again
3. Fails to look at serious medical errors made including one by the PHSO’s most senior internal adviser who contradicted what became later two NHS Patients Safety Alerts
4. Fails to examine or comment on in any way the reasons for the ‘not accurate’ statement of a previous assistant director, concluded by a previous review
5. Failure to look at systemic reasons identified in the Professor George expert report, a report regularly quoted by PHSO but never properly and fully utilised. It involves the only independent expert who has looked over all pertinent issues, some of them key system issues around palliative care provisions (a core admitted failing) and someone not restricted by the admitted limited scope of the PHSO
6. Not examining the robustness of the action plan in the Trusts response to the Coroners ‘Prevention of future deaths report
7. Three abuses of an advance directive are reported but only one started to be examined with no expert input justified on spurious grounds
8. Straightforward maladministration failings in respect of a variety of the Trust’s own policies (medical and complaint administration) were not examined
9. Adequacy of Trust response to safety alert directly relevant to the case.
10. Continued decade-long risk due to a lack of palliative medical cover for the service which was acknowledged by Trusts, PHSO, external reviews and played a role along with five other staffing issues in my mother’s harmful care
11. FREDA/Human Rights principles were not considered in the PHSO own proceedings. I believe the PHSO’s process, despite the attempt to remedy, it is procedurally unfair
12. Health and Safety at Work Act failings were not considered at all despite evidence of the syringe driver failings featuring significantly. PHSO was made aware of repeated dangerous equipment failings spanning 6 years
13. The role of poor care in the cause of death especially as the many cardiac dimensions of the case. Most of these were ignored by the PHSO; some were admitted to by the Trust and were found to be the cause of death at the Inquest. (And another broken promise made by the PHSO’s Head of Complex Investigations and the only clinician who had direct involvement or managerial oversight of my mother’s ‘complex’ case).
14. The link between all the errors identified and the systemic failings it suggests. The report creates an arbitrary artificial divide between service delivery and investigation process. For example, it makes no comment on how the massive delays in its processes impact on the type of investigations carried out and the action plan the Trust initiated. Whilst the PHSO effectively gave the Trust’s action plan a clean bill of health 3 times, the CQC found continued/repeated fallings by the Trust over the same period, The CQC’s findings are damning of the Trust and yet there is no recognition of this in the PHSO’s conclusions. Which experts are required is a key continuing bone of contention. While the PHSO resorts to ‘peer advisor’ commentary this can be challenged when the Trust itself

admits errors in providing adequate timely expert, in this case, palliative input. How is it possible for unqualified PHSO investigator to understand the medical and legal complexities of the harm, injustice and remedy required in very complex cases and/or to ascertain what questions should be asked of Clinical Advisors/other experts in order to properly inform their responses. This leads PHSO staff to make some breath-taking assertions. And they have done so in this review itself

Is this really acceptable as the final unchallengeable review process? How can you justify these gaping holes which surely any proper independent expert investigation would want to examine and learn from?

1. It ain’t half of it! My unique journey with PHSO as it fails harmed patients, families and the public

I have read accounts of literally dozens of cases, mainly via PHSOthefacts which raise as important and in some case even more serious failures of hospital (and other bodies) care, treatment and complaint processes and the PHSO’s inability to investigate and to hold them to account. I am aware I have had very exceptional multiple inputs from PHSO and finally gained an ‘upheld’ 7 by the PHSO, as it had no excuses and plenty of pressure for the following reasons:

• the multiple failings my mother endured were such clear breaches of basic good practice, policies and procedures and were witnessed for so long, e.g. they were not a one-off incident/accident.
• The Trust did not ‘ lose ‘any notes and supplied them all, which provided a fairly good account; although criticised by PHSO for incompleteness and by the Trust for retrospective reporting.
• the Trust’s initial response was at least comprehensive and they did not try to explicitly deny most of the failing I clearly evidenced, although the Trust were far from perfect as even the PHSO acknowledges 8
• I was fortunate to be able to use some of my meagre resources to take some legal advice about Inquests; hence I managed to get an Inquest.
• I was also able to obtain an excellent expert report as part of the Inquest process; this was totally damning of the Trust and provided a systemic analysis of their failings.
• The Coroner issued a Prevention of Future Death Notice, however, the substance of both reports have been largely ignored by the PHSO and the Trust, ultimately unnecessarily protracting my dealings with the PHSO and exacerbating my distress immeasurably.
• I used more of my meagre resources to get another independent expert report which, despite being ignored by Coroner and early PHSO investigations, it ultimately led to two NHS national patient safety alerts and changes in medical advice on risks of naloxone. Without this I believe the PHSO would have quashed my complaints prematurely, to the great detriment of me and other patients.
• Support of family, friends, other campaigners and a very few key NHS staff
• Early data subject access requests contained a lot of useful information which forced this review to consider wider aspects, but this was denied to me from January 2017 hence further internal processes failures and biases may have been covered up. Can you support this loss of transparency in case handling? And is this why you have ruled out external reviews?

My unique journey with the PHSO is, by its exceptional nature, a shocking indictment of the PHSO and its processes. Its exceptional treatment, and mistreatment to the end, proves the rule of too many seriously flawed PHSO processes when trying to deal with complex cases.

It should be of interest to PACAC, fellow campaigners, any independent expert reviewers and the general public. Will it get any deeper public scrutiny?

1. I have some final challenging questions for Professor Rob Behrens PHSO

Have you/will you present/ed this review to the PHSO Board? The Board whose stated role is to ‘provide(s) robust oversight and assure(s) Parliament of the effectiveness and efficiency of the organisation’

Given all the evidence to the contrary presented above are you confident in the final response findings of PHSO staff? I would be happy to point out the flaws in any of the paragraphs of the report you choose as an illustration of the startling figures I have given above

The review does not reflect the multiple systemic failings identified and reported in the last few years by the PHSO itself regarding poor complaint handling, particularly for frail elderly people and also poor end of life care, or show how any effective change/improvements will be made.

How can you support this given your public proposal to be a systemic oriented response?

Moreover, given the many failings, how can you not subject yourself to external scrutiny, as your predecessor promised in my case?

Surely it is not adequate, reasonable or fair for the PHSO to simply accept retrospective changes in policy in a case like this, especially as your reviewer and CEO have admitted that further additional failings have occurred since the review in 2015 was concluded?

Given the huge number and range of serious failings a senior customer care officer, has identified of the PHSO itself is it not reasonable for the PHSO to ask an external independent expert to review the adequacy of the conclusions and the robustness of the response?

Will your response to this document be able to reassure me, the PHSO Board, PACAC and the public? Systemic systematic repeated failings need robust independent expert review otherwise reputation management takes precedence and harmful unsafe services continue and inadequate investigations likewise.

In summary Professor Behrens will you treat your own damning report and my response with the seriousness it deserves? So far I have no evidence to convince me given the way conclusions and action points have been reached.

Richard von Abendorff 17/3/18

The further review is available by contacting me at laraginfo@yahoo.co.uk