Tagged: accountability

The state V the citizen. The ultimate catch 22

state machineryA primary responsibility of the state is to protect its citizens from harm.  So what happens when the state is the body causing harm and those in authority collude together to cover up? In the UK we like to believe in ‘British fair play’; a somewhat bureaucratic but essentially benign system of checks and balances to put things right. After all, we have shared our model of democracy and our legal system across the world so who could doubt the efficacy of British rule?

Yet anyone who has made a complaint about a public service will have learnt that the machinery of the state is used against the citizen, not for the citizen.  Those who have not made a complaint will not want to know this bitter truth and will not believe a word of it. And there is the dilemma. What right-minded person would go about telling all and sundry that various government authorities have conspired against him? Clearly, only a delusional trouble-maker would dream up such a tall story.

Meet Mr Hawkins. A brave campaigner for truth and justice who told such a story to his MP Andrew Gwynne, shadow minister for communities and local government.  In an unusual twist of events not only did Mr Gwynne believe his constituent, he felt so strongly that Mr Hawkins had been let down by multiple agencies for over a decade that he brought it to the attention of parliament at a recent ‘backbench’ meeting in Westminster Hall.  You can read the full details here

Sadly, I have to publicly outline how my constituent, Mr Hawkins, has been let down by public authorities. The law and NHS rules have been abused to avoid giving him the justice that is rightfully his. His attempts to seek that justice, along with some semblance of honesty and humility, have already passed the decade mark, so I shall be grateful for the Minister’s reply after I set out the case.

Did you get that – “…the law and NHS rules have been abused [by the state] to avoid giving him the justice that is rightfully his.” 

Mr Hawkins was given surgery on his ruptured Achilles by a junior doctor instead of the allotted clinical surgeon in order to ‘meet government targets’ and following a serious clinical error which left him in great pain he was discharged too soon also to ‘meet government targets’. 

Mr Hawkins immediately made a complaint through the hospital trust’s internal complaints procedures. He believes that on receipt of his letter of complaint, the trust should have called him in for an examination and a scan. It should have admitted that a serious problem had occurred and carried out a further operation to release the Achilles tendon from the rear of his leg. In Mr Hawkins’s mind, the matter would then have been resolved. However, the trust decided to take a different route: it instantly instructed Hempsons solicitors.

So easy to put things right at this early stage yet the state used public funds to protect itself against a genuine complaint. Clearly, Mr Hawkins wasn’t expecting this.

Although, obviously, Mr Hawkins is concerned about the clinical errors that have caused him lasting damage, he is rather more appalled by the actions of a variety of organisations afterwards. He believes that those actions were deliberately designed to cover up the fact that a clinical mistake had been made, caused primarily by the replacement of a consultant surgeon with a junior doctor.

“He believes that those actions [by the state] were deliberately designed to cover up the fact that a clinical mistake had been made…”    Why would the state deliberately design such harmful action? 

Now that the complaint is in the hands of a legal team Mr Hawkins has little option but to appoint his own solicitor who then uses him as a cash cow and appears to work in cahoots with the NHS legal team.

In 2008, Mr Hawkins instructed a solicitor, who requested disclosure of all full medical records. The trust passed his request on to Hempsons. However, in the immediate period after his request he received only a very selective number of his own medical files from Hempsons. Mr Hawkins’s solicitor failed to ensure that all full medical evidence was disclosed within statutory time limits and failed to apply for a court controlled disclosure, while knowing that the records he had listed were missing. Mr Hawkins’s solicitor instructed a clinical litigation medical expert, who produced a case-closing report that failed the objectivity test and was therefore invalid. The trust and Hempsons initially failed to disclose relevant medical records, doing so only after continued and considerable pressure from Mr Hawkins.

“Mr Hawkins’s solicitor instructed a clinical litigation medical expert, who produced a case-closing report that failed the objectivity test and was therefore invalid.” 

 State corruption provided lucrative work for ‘the legal boys’ who could act with impunity knowing that there is no effective mechanism for a member of the public to hold a solicitor to account.

In 2013, the trust eventually conceded and his remaining medical records were fully disclosed. On analysis of the records, it was plain to see that there were omissions and that pre-action protocol time limits had been exceeded. In response, Hempsons sought the opinion of a medical litigation expert. A report was produced, but it was based on the selected medical records that I mentioned earlier, as well as on the falsified information. Mr Hawkins believes that that report would fail any objectivity test and is therefore invalid.

Let’s just get this straight. The NHS Trust deliberately and willfully withheld medical records demanded under the legal pre-action protocol time limit and falsified other information. A criminal offence, yet no-one is held to account. Instead, the solicitors working [from the public purse] to protect the trust were able to produce a ‘whitewashed’ report in order to deny justice.

Withholding records is a breach of the Data Protection Act 1998 but the state body responsible for protecting the citizen from such breaches, the Information Commissioner’s Office is slow and cumbersome with no real powers of coercion.

Mr Hawkins also believes that the Limitation Act 1980 was breached from 2008 and that rules 31 and 35 of the Civil Procedure Rules 1998 were breached in compiling medical reports, because the medical experts failed in their duty to the court to be objective.

More breaches of the law and regulation by the trust and their legal team which required action from the state to protect the citizen but the body charged with finding against such ‘maladministration’ the Parliamentary and Health Service Ombudsman refused to investigate leaving him high and dry.

 The delays in disclosure of information meant that Mr Hawkins’s complaint to the Parliamentary and Health Service Ombudsman was ruled out of time. My constituent believes that that makes a mockery of the trust’s failure to disclose his medical records within statutory time limits, which he believes the ombudsman ignored while upholding the strict time criteria regarding his making a complaint to the ombudsman. Mr Hawkins appealed the decision on several occasions when the evidence was retrieved through the Information Commissioner. However, he was unsuccessful in overturning their original view that a letter from the trust indicated that the complaint was closed in 2007, which he utterly refutes. Hempsons later apologised and admitted that that letter did not clearly state that the local complaints procedure was closed. However, the ombudsman still refused to investigate the complaint and, in doing so, Mr Hawkins feels that the ombudsman has assisted the trust to conceal the cause and effects of a clinical error.

The Ombudsman has total discretion to investigate a case which is outside the normal 12-month time limit yet it refused to do so and even refused to accept the evidence that their initial decision to time-out the complaint was flawed.

“However, the ombudsman still refused to investigate the complaint and, in doing so, Mr Hawkins feels that the ombudsman has assisted the trust to conceal the cause and effects of a clinical error.”

Unrealistic and inflexible NHS targets caused harm to the citizen. Then publicly funded legal teams dragged their heels, refusing to release records and fabricating evidence in breach of legal protocol. The Ombudsman then ‘assisted the trust’ by refusing to investigate clear breaches of policy and procedure.

Mr Hawkins then appealed to the NHS Litigation Authority only to find that they too were in cahoots with the trust and the legal team.

In 2013, Mr Hawkins wrote to the NHS Litigation Authority, as the trust was not reporting clinical mistakes. Initially, the NHS Litigation Authority would not get involved and requested my involvement, as Mr Hawkins’s Member of Parliament, which I duly offered. Two replies were received that indicated that the NHS Litigation Authority was involved in the case, despite previous assertions and written evidence that it was not involved. Mr Hawkins was notified in writing that the trust, on receipt of his letter of complaint, had instructed Hempsons in January 2007, with the NHS Litigation Authority directly instructing Hempsons and the trust from November 2007 to February 2009.

Hempsons was aware of a breach of the Limitation Act 1980 and the Data Protection Act 1998 when it disclosed to Mr Hawkins his missing medical records in October 2009. This means that the trust and Hempsons had illegally avoided disclosing all full medical records within statutory time limits and successfully passed the three-year limit for litigation. Mr Hawkins believes that indicates that the NHS Litigation Authority was aware that rules had been broken, yet failed to take retrospective action based on the strength of the evidence that he had disclosed to it in 2013.

“… the trust and Hempsons had illegally avoided disclosing all full medical records within statutory time limits and successfully passed the three-year limit for litigation.” 

A state body and a state-funded legal team committed illegal actions in order to deny justice to the citizen with the support of the NHS Litigation Authority and the complicity of the Ombudsman.

The actions taken by the trust, assisted by Hempsons and the NHS Litigation Authority from January 2007 to December 2013, clearly indicate that the trust was covering up a clinical incident and its cause. With so much time having passed since my constituent first exited the operating theatre in the summer of 2006, I hope that today the Minister of State will be able to afford Mr Hawkins guidance and support in this matter, and finally bring to some closure what has been a dreadful episode for my constituent.

You may expect the Minister to be horrified that various state-funded bodies had conspired to deny justice to a citizen harmed by the state in the first instance but Stephen Barclay, Minister of the department of health and social care was having none of it.  He used the usual caveats which allow politicians to show a clean pair of hands by stating that the NHS complaint system and the work of the Ombudsman are independent of government. Also, that it was not for the DoH to discuss individual cases.

If the bodies set up by government fail to protect the citizen who is to take them to task if they are deemed ‘independent’?

Then Mr Barclay casts aspersions on the validity of the claims and in doing so discredits the complainant.

As you are well aware … the NHS complaints process operates independently of Government, to prevent political bias in the handling of individual complaints. However, a number of points arise from the hon. Gentleman’s remarks, in respect of his contention that Mr Hawkins was let down by a number of individuals and organisations within the NHS. Specifically, it is alleged by Mr Hawkins that the hospital failed him by prioritising then Government targets, which delayed his operation; that the clinician failed him through clinical error; that the duty surgeon failed him by falsely reporting that his wound had healed; that the hospital failed him by not correcting the alleged mistake and by instructing lawyers; that Hempsons solicitors failed to disclose full records; that his own solicitors failed him by not obtaining his records; that his own clinical medical expert failed him; that the hospital failed him, regarding his report; that the Ombudsman failed him; and that the NHS Litigation Authority failed him.

Although the Department of Health does not comment on individual cases, and it is not for me to adjudicate whether all of those claims by Mr Hawkins are valid, it is worth noting that a very wide range of both individuals and organisations are alleged by Mr Hawkins either to have conspired against him or, indeed, to have failed him in this matter.

“… it is not for me to adjudicate whether all of those claims by Mr Hawkins are valid, it is worth noting that a very wide range of both individual and organisations are alleged by Mr Hawkins either to have conspired against him or indeed, to have failed him in this matter.”

Mr Hawkins provides us with a typical case study of state corruption and the misuse of power. This happens to thousands of people every year. But if they chose to speak out about the deliberate corruption and collusion of state bodies it marks them as a delusional fantasist or vexatious troublemaker.  Who would believe that state-funded bodies would conspire in such a concerted and prolonged manner?  Yet, to not speak out is to be complicit in the state violation of human rights.   So the brave or the foolish speak out and become victims of the state all over again.

Let’s give the final word to the Minister, Stephen Barclay. 

It is equally important that patients and their families are listened to and their concerns taken seriously and addressed.

That would be all the concerns which don’t indicate a deliberate cover-up and collusion by the state then Mr Barclay.

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Dame Julie Mellor and the ‘toxic cocktail’.

toxic cocktailIn August 2013, Dame Julie Mellor, the Ombudsman identified a ‘toxic cocktail’ of complaint handling within the NHS.  In a typical media spun, finger wagging exercise, Dame Julie pinpointed the reasons why so many people felt dissatisfied when they made complaints to NHS staff.  http://www.telegraph.co.uk/news/health/news/10238221/Ombudsman-Patients-suffer-from-a-toxic-cocktail-in-NHS.html

The toxic cocktail can be neatly summed up as

‘delay, deny, defend’

and she should know, as her own organisation, PHSO are the absolute experts.   Let me give you some examples.

Delay:

PHSO deal internally with all complaints made about their own staff.  Most of these complaints are just dismissed as complaints about the decision and the ones that aren’t are just put on hold.  Forget all about their policy of objective investigation by another member of staff not involved with the original case.  It just doesn’t happen, in fact, nothing happens.   Hence this request for information regarding a formal complaint made against legal advisor Anne Harding over a year ago who has since retired from PHSO and no doubt taken all those pesky complaint letters with her.

https://www.whatdotheyknow.com/request/employees_allowed_to_retire_leav

Deny:

PHSO regularly deny receiving evidence and deny the content of any evidence that doesn’t fit their chosen narrative.  They also deny access to transparency of their process, which is aptly demonstrated by the regular sidestepping of FOI requests on whatdotheyknow ably abetted by Steve Brown, Head of Risk and Assurance who can be relied upon to agree with all their decisions.   One complainant simply requested the name of the reviewer who dealt with her case and was told;

“I am sorry I am unable to provide you the name of the external reviewer who reviewed your complaint. This is because it constitutes their personal data and we do not have their consent to provide you with the details, as such the information is exempt under the section 40(2) of the Freedom of Information Act 2000 (third party personal data). The information would also be exempt under section 7(4) of the Data Protection Act 1998 if we considered your request under subject access.

Open, transparent, customer focussed.   Delete as appropriate.

 

Defend:

PHSO can be relied upon to defend every decision.  According to their Annual Report 2013/14 they found error only 0.2% of the time.  Maintaining a high accuracy rate of 99.8% is however fairly easy when you internally review every decision yourself.  Except of course when there is a public inquiry.  In March 2015 the Kirkup Inquiry reported findings from the Morecambe Bay maternity scandal which found that mothers and babies had died unnecessarily due to poor maternity care; including the son of James Titcombe.  James had previously pushed (via judicial review proceedings) PHSO to investigate his personal case and although largely upheld, PHSO could find no evidence of collusion between the midwives prior to the inquest.  Therefore this aspect of the complaint was not upheld by the Ombudsman.  This was the final report, the final outcome and it vindicated the midwives concerned.

 Until the Kirkup Inquiry reversed that decision.

“Concerns were raised after the Kirkup inquiry’s conclusions contradicted a PHSO investigation last year on the question of whether Morecambe Bay midwives colluded over evidence to an inquest. The Kirkup inquiry said there was “clear evidence of distortion of the truth” by midwives, describing how they were given a crib sheet of “model answers” before the inquest into the death of Joshua Titcombe, who died as a result of failings at Morecambe Bay in October 2008. This came a year after ombudsman Dame Julie Mellor said she found no proof that the midwives colluded over evidence. She said she saw no evidence of “professional wrongdoing” by midwives ahead of the inquest taking place.”

https://patientsafetyfirst.wordpress.com/2015/03/07/phsos-capability-questioned-after-morecambe-bay-report/

Yet the Ombudsman still stands by this flawed report and has refused all requests from Mr. Titcombe to amend the final version; an action James describes as ‘disgraceful’.

But this is what you can do when you have total discretion to act as you like and cannot be held to account by the law or by parliament.  If you are concerned about this state of affairs and wish to share your views with the government then please respond to the Cabinet Office public consultation on reform of the Ombudsman landscape before 16th June 2015.  We now have a chance to make a difference and end this impunity once and for all.

https://www.gov.uk/government/consultations/public-service-ombudsman

Also, check out the PHSO Pressure Group aims for reform here on phsothefacts.com  and join the Pressure Group  – together we will be heard.

http://phsothefacts.com/join-pressure-group/