Tagged: NHS

PHSO Ombudsman asks “what is the point of complaining?”

You have to worry when the Ombudsman asks the citizens to explain the ‘point of complaining’ but let me set that in context. PHSO have actually asked film students to put together a 45-second film on the title ‘What’s the point of complaining’ and enter a competition to win a cash prize of £400. If anyone could educate the Ombudsman on this subject with a single 45-second film then it would be worth a lot more than £400.  film-competition-whats-point-complaining Let’s see what the Parliamentary and Health Service Ombudsman (PHSO) have to say about their complaint handling service.

We were set up by Parliament to provide an independent complaint handling service for complaints that have not been resolved by the NHS in England and UK government departments.

We share findings from our casework to help Parliament scrutinise public service providers. We also share our findings more widely to help drive improvements in public services and complaint handling.  about-us/who-we-are

So according to PHSO they provide an ‘independent’ complaint handling service for citizens with complaints about government bodies and the NHS. In fact, they are the only body who handle individual complaints apart from the occasional investigation by NHS England and the even more occasional public inquiry.  They give resolution to citizens caught in a dispute with public bodies and they also ‘drive improvements’ by sharing the findings of their investigation reports and so preventing further harm. So far so good.

On Monday 26th March 2018 Southern Health Foundation Trust pleaded guilty to criminal charges of negligence and harm caused by a failure of its health and safety management systems.  The trust accepted;

“It is a matter of significant regret that between April 2011 and spring 2016 the Trust did not adequately address the quality and safety, governance and assurance challenges it faced in a timely and robust way.” (28)

The court judgement concluded;

From the perspective of the Court, it is not merely a matter of regret but of very grave
concern that the endemic failures disclosed by the investigations following the
avoidable deaths of TJ and Connor were allowed to arise at all and to persist for so
long. That concern is heightened by the failure to have learned any lessons or to have
addressed the systemic failures adequately or at all between April 2012 and July 2013,
for which there appears to be no excuse at all. (29)


Southern Health Foundation Trust suffered from ‘endemic failures’ which caused actual bodily harm to patients in their care, for at least five years, for which no lessons were learned. So how come the Ombudsman (PHSO) didn’t detect and share these endemic failures with parliament to drive reform given the length of time it continued and the large number of people affected. (722 unexpected deaths over 4 years with only 272 properly investigated) bbc.co.uk/

During the time of endemic failures at Southern Health (2011 – 2015) the Ombudsman received 164 complaints from members of the public. These complaints should have raised concerns but PHSO investigated only 16 of these cases, (9.7% of the total submitted) and upheld to some degree just 5 (3.0%)  This low uphold rate goes some way to explaining why issues at the Trust persisted for so long, causing avoidable death and suffering to many and why ‘no lessons were learned’.

In February 2018 another scandal broke this time concerning Liverpool Community Health NHS Trust (LCH)  An investigation by NHS Improvement found that between 2010 and 2014;

Patients suffered “significant harm” because of multiple serious failings by a “dysfunctional” NHS trust…  Liverpool Community Health NHS trust (LCH) provided poor, unsafe and ineffective care to patients, including inmates at HMP Liverpool, the scathing report concluded.

“Patients put their faith in the NHS, and they should be able to trust that dangerous and dysfunctional services will be dealt with immediately. Sadly that has not been the case here and it took the help of a local MP to sound the alarm, and many years for the full facts to emerge,” said Jeremy Taylor, chief executive of National Voices, a coalition of more than 150 health and social care charities.


Dangerous and dysfunctional services delivered by LCH without redress for at least a four year period. Surely some of the people who suffered would have made a complaint to PHSO. The table below shows that from 2010 – 2014/15 the public made 43 complaints to the Ombudsman. These figures demonstrate a steep rise from 2012 onwards yet the Ombudsman investigated just 5 cases (11.6%) and upheld none (0%) in this time period giving LCH an unblemished record. Since 2010 the Ombudsman has partially upheld only 1 complaint against LCH giving a green light for dysfunctional services. 

In these two instances, the Ombudsman (PHSO) failed to provide redress for the vast majority of those who made a complaint.   (97%+ with no uphold)  But more alarmingly it failed to spot and rectify serious, dysfunctional bodies who were able to deliver harmful services to the public for prolonged periods without redress. In short, the Ombudsman failed in both the specific aims of its given remit.  Which begs the question,

‘What is the point of complaining?’

and at a cost of £37m per annum,

what is the point of PHSO?


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.

The NHS is closed and defensive – reflections from James Titcombe on the eve of the Kirkup inquiry findings.

In 2008 James Titcombe found that the NHS complaint process was a closed and defensive system.

In the immediate aftermath of Joshua’s death, I didn’t know much about the different organisations involved in healthcare regulation. I found out the hard way that every organisation I turned to either refused to help or failed to do what might have reasonably been expected.

As he waits to hear the results of the Kirkup Inquiry into the deaths at Morecambe Bay, James reflects on his experiences re-posted below.    https://patientsafetyfirst.wordpress.com/2015/02/01/54/ 

Unfortunately, for all of us, nothing much has changed since 2008 and those with responsibility to regulate still look the other way denying justice and remedy and putting other lives in danger.

When did it become acceptable for those with responsibility to deny accountability?

The weeks ahead

The weeks ahead

In the next few weeks we are finally set for a moment of truth that myself and other families have been long waiting for. The Morecambe Bay Investigation report will finally be published next month.

These are personal reflections only. At the time of writing, I do not know what the reports conclusions are going to be. I don’t wish to speculate on what the specific findings might be.

I am writing this blog because there are some general things I want to say before the report is published

Firstly, I have to mentioned the issue of ‘bad news’ about the NHS and politics – something I’ve talked about before.

In the immediate aftermath of Joshua’s death, I didn’t know much about the different organisations involved in healthcare regulation. I found out the hard way that every organisation I turned to either refused to help or failed to do what might have reasonably been expected.

When the scale of problems at Morecambe Bay eventually did start to emerge (in late 2011/early 2012), I started to think about why problems hadn’t been identified sooner and why, back in 2008 when Joshua died, myself and other families faced such a closed and defensive system.

I read about the events at Mid Staffs and recognised some of the themes as being relevant to what happened at Morecambe Bay. I also found some documents that made me really concerned about the Ombudsman’s decision not to investigate Joshua’s death and what else was going on around this time.

Later on, I became aware of some of the evidence that was submitted to Francis. I referred to some of this evidence in this blog.

I’ve noted with interest that the national press have covered some pretty serious allegations and (it must also be said) equally vigorous denials. For example.




Any allegation that any Minister could have acted to deliberately keep known problems at Morecambe Bay (or elsewhere) hidden would be extremely serious. I’m sure that this isn’t the case. Given that no Ministers have even been interviewed by the investigation, it’s pretty clear that the Kirkup investigation doesn’t either. It’s important that this minor point doesn’t become a distraction from the really important issues.

What still very much remains is a deep concern that at the time Joshua (and others) died, a system wide culture that acted to keep bad news quiet in the NHS had emerged. The fact that such serious issues were happening, involving preventable loss of life on such a large scale, yet the issues remained unaddressed for so long seems to me to be a real indictment of the way the NHS was operating at the time.

This brings me to the last few points I want to make.

Firstly, I noticed this piece was published in the local paper recently.


My local Labour MP John Woodcock is quoted as saying “As the minister for state, Norman Lamb, knows, I helped secure the inquiry on behalf of grieving families who, with great persistence and determination, persuaded me of the need for an independent examination to run alongside the criminal inquiry, rather than taking place subsequently. I am determined to get to the truth and I am determined that lessons should be learned, no matter how painful they might be for anyone.”

John, your help was invaluable and hugely appreciated as is your sentiment. However, because I’m concerned about current political manoeuvring, for the record I must draw attention to the fact that for many years myself and other families affected by the failures at FGH did not feel that they had your support. The opposite is the case. Your help (which is hugely appreciated and strong), came only in late 2012 when sadly, the problems at the trust were all too well known. The years following Joshua’s death were lonely, isolated and unsupported and I know this is the experience of other families whose lives have been devastated by these events.

The second issue I wish to draw attention to is this article.


The piece states.

“Mr Woodcock’s call comes after shadow secretary of state for health Andy Burnham said earlier this month that “the exceptional factors” at the trust meant it would be “an early priority to see if we can put it on a sustainable footing”.

This promise was echoed in the commons today by Labour’s shadow health minister Liz Kendall who said that the party recognises the “powerful case for the uniqueness of Morecambe Bay” in regards to funding.”

In the week when John Woodcock also pronounced on Newsnight “…we’re really proud of the changes we [Labour] made to the NHS”, Andy Burnham talking about putting Morecambe Bay on a ‘sustainable footing’ whilst failing to articulate any understanding of the fundamental reasons why Morecambe Bay finds itself in the situation it does, is pretty hard to swallow.

We don’t need to wait for the Kirkup report to have at least a basic understanding of where the problems at Morecambe Bay originate. Significant systemic care quality issues that instead of being identified and dealt with, were left unaddressed by a system that acted in a way that kept the problems hidden. The costs of this have been horrific. First and foremost in human suffering, but the cost to the trust in terms of reputation, additional recruitment, consultancy fees, PR, legal fees, litigation and pay offs to former staff, has been colossal.

Yes, there is a debate to be had about tariff adjustments for trusts like Morecambe Bay – but all the money in the world won’t lead to safe and sustainable healthcare if serious problems are covered up.

I can’t tell you what the Kirkup investigation will conclude, but I can tell you what it felt like back in 2008 to try and raise awareness of what had happened and get something done. It felt like the whole system was designed to keep people like me quiet and to keep the problems hidden.

I know that this is what it felt like for Julie Bailey and other bereaved families at Mid Staffs too. Julie Bailey has said

“The whole culture…was to keep problems hidden. That’s why we lost so many lives. Unless we address this culture we’ll just lose more people.”

Sir Brian Jarman has referred to the system at the time as being a ‘denial machine’.

This is what Baroness Young said in her evidence to Mid Staffs.


So, before the Kirkup report is published, this is my plea. The NHS is not a ‘weapon’ to be used for political gain, it’s an institute that most of time, we have right to be very proud of. It is also the case that in the past, too often serious problems have been covered up and not addressed.

Rather than adopting a political strategy of ‘weaponising’ the NHS, a less toxic (and offensive) approach might be to start an honest dialogue that shows understanding about where things went wrong in the past and demonstrates a commitment to ensure the same failures never happen again.

When the Kirkup report is published in the next few weeks, perhaps the very first question some should ask is why it is that we’re only reading the truth about these events now, so long after the serious problems at Morecambe Bay were first happening.

My suspicion is that the answer relates more closely to the comments above from Baroness Young than the issue of tariff adjustments.

Clinical experts needed to drive NHS reform.

The Health Service Ombudsman is staffed by laypeople and has repeatedly shown itself to be incapable of thorough and impartial investigation of NHS complaints.  It is restricted by its legislation to respond only to complaint and there is significant difference between maladministration and clinical accident.   This body was never designed to undertake the volume and complexity of NHS complaints currently queueing up within the system.

Time for a new, independent investigative body; staffed by clinicians and open to complainants, whistleblowers and NHS staff.  Read this important blog from James Titcombe and if you are an interested party then please submit your evidence to the PASC inquiry by 16th January 2015.

Complaints and Clinical Failure – 17th December 2014  by James Titcombe


I want to start this blog with a simple statement.

There is a clear distinction between a serious incident (the term ‘incident’ could often be replaced with ‘accident’ in a healthcare context) and a complaint.

Let me give you an example. If you bought a washing machine from your local electrical retailer and when you got it home and installed it, you found it didn’t work, you would have a right to take it back. If you did this and found the chap in the store was rude and dismissive and told you to take a hike, making a formal complaint would seem like a reasonable thing to do. You would expect the store’s management to follow a proper process of investigating your complaint, to establish the facts and then to take action to put things right and learn from the experience.

However, if when you were visiting the store to purchase your washing machine, a heavy piece of machinery fell on you from a great height, leaving you severely and permanently injured, you would not expect to have to write to the store to make a formal complaint in order for the incident to be investigated. In fact, you wouldn’t have to. Under health and safety legislation, the matter would have been reported to the Health and Safety Executive (HSE) who would almost certainly carry out an independent investigation. Further to this, if that investigation found that the management of the store had failed to take ‘reasonably practicable’ steps to ensure people shopping weren’t exposed to the risk of heavy pieces of machinery falling on them, the chances are that the management of the store would find themselves facing prosecution.

This is an effective framework for keeping people safe in work environments. Since the Health and Safety at Work Act (HSWA) was introduced in 1974, workplace related deaths in the UK have fallen annually from 651 to 85, an 87% reduction.

The system is effective, largely down to the way the HSE implement the 1974 Act. When looking at work place accidents that cause harm, they look at the systems and processes in place to manage health and safety risks. In other words, the HSE don’t look to prosecute individuals who make genuine mistakes, but they look to see how risks are managed and controlled through systems and processes.

In the UK, safety critical or high risk industries almost invariably also have have some form of independent investigatory body capable of investigating serious incidents or failures. Aviation has the Air Accident Investigations Branch (AAIB), Rail has the Rail Accident Investigations Branch, Maritime has the Marine Accident Investigations Branch.

These independent bodies all operate on similar fundamental principles, described clearly in this excellent paper by Carl Macrea and Charles Vincent.

“…they provide their industry with independent, public and non-punitive investigations which address the full spectrum of causes and which target recommendations at all relevant organisations throughout the industry. “

The ‘non-punitive’ aspect is key. If you speak to people with experience of safety in Aviation for example, this leads to a culture whereby pilots are quite at ease with self reporting their own errors and near miss events.

How does this compare with the current framework for investigating serious incidents in healthcare?

The evidence is pretty clear. In this article, I talk about the confidential inquiry into perinatal and maternal deaths across Cumbria, published in 2013 but covering the 2010 period.

The report looked at 60 perinatal deaths and identified that of these, 20 had at least one major avoidable factor that more likely than not caused the death. Of these 20 cases, the report found that only one was reported and investigated as a serious untoward incident.

These were the deaths of babies that a confidential inquiry found could have been avoided, yet 95% of the cases were not even investigated as serious incidents.

The Health Ombudsman (who I will come back to later), has recently announced a review of 250 cases they are dealing with which involve potentially avoidable death.

Speaking to the Telegraph, Dame Julie said

“We are investigating more than 250 complaints about avoidable deaths and many more about avoidable harm. The quality of investigations of those serious cases is incredibly variable and most appallingly, sometimes there is no investigation.”

Although there are signs of positive change, it’s clear to me that we still have a problem, not just from the examples above but from the many stories I hear of people struggling to come to terms with the potentially avoidable loss of a loved one, who years later are still left without answers and with doubt as to whether or not lessons have been learned.

Families in this position can find themselves failed multiple times. Firstly, they may have suffered due to an avoidable error with tragic consequences. Secondly, they are failed by the organisation involved who either completely fail to report and investigate the incident or fail to carry out an adequate investigation. Most appalling of all, when those families have nowhere else to turn other than the complaints process (like the man returning his faulty washing machine), they are often faced with a defensive response in a system whose ultimate arbitrator is the Health Service Ombudsman.

Those of you who know the story of Joshua, will already know that my experience of dealing with the Ombudsman could not have been any worse. Recently however, there is a wider and growing recognition that there are serious problem with this service.

Earlier this year, in an unprecedented move, the Secretary of State for Health wrote to Dame Julie in relation to the tragic case of Sam Moorish.

He wrote

“I consider you have failed to meet the high standards the public have a right to expect and, most importantly, you have let down Sam’s parents in the most serious way. I am concerned that in a complaint of this seriousness and sensitivity there should have been a delay of two years before Sam’s parents received your support. I am certain that such a delay must have caused additional untold stress and upset to Sam’s parents at an already terrible time for them.”

More recently, the Patients Association published a report “The Peoples Ombudsman How it Failed us”

The report concluded “The cases highlighted in this report and described in their own words by the families who have dealt with the PHSO, reveals just how poor the service provided by that body has become…The Patients Association therefore continue to be drawn to the conclusion that the PHSO remains unfit for purpose.”

More worrying still, since the report was published, the Patients Association say they have been inundated by patients and families desperate for somewhere to turn to for help. This prompted the Patients Association to write to the Secretary of State just last week stating

“If the PHSO was a school or a hospital, evidently failing so demonstrably, special measures would be introduced as a matter of urgency to stop the rot and prevent the situation from deteriorating further. Why is equivalent action not being taken in relation to the PHSO?”

If this sounds exaggerated or over the top, as someone with direct experience of the PHSO, I would tell you it really isn’t. Urgent change is needed.

The good news is that the momentum for change is growing.

Today, the Public Administration Select Committee (PASC) have announced an inquiry intocomplaints and clinical failure in the NHS.

“The Committee is considering ways that untoward clinical incidents could be investigated immediately at a local level, so that facts and evidence are established early, without the need to find blame, and regardless of whether a compliant has been raised. It is hoped that this work will reduce the need for complaints to go to the Parliamentary and Health Services Ombudsman (PHSO), whose main role relates to administrative and service failures in the NHS in England.”

This important inquiry makes reference to the excellent Macrea/Vincent paper and looks set to explore whether or not an independent investigatory body for the NHS is a viable and beneficial option. I hope that as many people and organisations as possible will submit evidence.

In the mean time, the NHS must prioritise the open reporting of all serious incidents (the new Duty or Candour will help), and focus on improving the quality of local investigations and learning.

Most of all, those families who are forced into the NHS complaints process for answers relating to serious clinical failures, must be able to turn to an effective, compassionate and credible Ombudsman service. Recent evidence still suggests that we are still some way from this and given the Patients Associations recent report and concerns, serious questions must be raised as to whether this can be achieved without external intervention.

Is socially accepted injustice inevitable?

If you have ever made a complaint you will recognise this scenario.  Aware that something has gone wrong and being a good citizen you take the time to alert the authorities.  It makes no difference if this is the NHS, ICO or any other acronym you care to think of, they all work the same way.

The conversation you have with the customer service desk is likely to be the most positive part of the experience.  They will listen to your story, ask to see your evidence and give you details of what to do next.  From here it is all downhill.  The person who assesses your evidence will find any reason to close down your case;  out of time, not in our remit, no case to answer.  All bodies will have acted ‘reasonably’ in the eyes of this particular individual.  The supervisor who deals with your review request will agree with this prognosis and so will the CEO, the legal team or the chairman of the board.  Each in turn will agree, there is no case to answer.

If you were to meet any of these people in the street.  If you were to fall in front of them and require their help, every one of them would pick you up, call for an ambulance and show genuine concern for your welfare.  They are not bad people.  Yet each in turn delivered an injustice and looked away from the truth.

How do good people do bad things?

In 1960 Lee Harper wrote ‘To kill a mockingbird’ and everything you need to know about socially approved injustice is contained within that book.  Tom, the black labourer is accused of raping a white woman and is given a ‘fair’ trial by jury.  As the story unfolds it become obvious to everyone in the courtroom that her father beat her up when he found her flirting with a coloured man and in all probability her father had been sexually abusing her for years.

The punch to her eye was delivered by a left-handed blow.  Tom’s left arm hangs limp by his side, powerless due to an accident with a threshing machine.  Her father signs a paper with his left hand in full view of the court room.  As the evidence mounts there can be only one conclusion; Tom is innocent and the father guilty.  So the jury go out and the jury come back and each and every one of them finds Tom guilty as charged, because the cost of not doing so was too great.  They had to protect themselves from the reality that a white man could rape and assault his own daughter.  Everyone knew that a black man was no better than a beast.  To accept that Tom committed the crime was the only option.

The weakest are always sacrificed.  

Our regulatory bodies find themselves in this same moral dilemma.  Like a house of cards they all lean against each other, ICO backs up PHSO who defends the NHS.  In order to handle your complaint with any honesty they would have to report that people within these organisations blatantly lie, breach policy, withhold data and destroy records.  The price is just too high.  So they rubber stamp the garbled whitewash, agree that everyone has acted reasonably and go home to their families.




The death of Lilibeth Ooms – a tale of cover up and deceit.


Lilibeth Ooms

by Jan Ooms

taken from


On 7th June 2006, my wife, Lilibeth Ooms died at Raigmore hospital, about 5 weeks after abdominal surgery. She was 45 years old and, although she had been many years on kidney dialysis, she was in good health. In the last 2½ years I have asked questions through the only avenues available to me – the Procurator Fiscal (PF) Case Ref – IN06003244, the NHS Complaint Procedures, and the Scottish Public Services Ombudsman (SPSO) Case Ref – 200700519.

My conclusions are based on long (2½ years) careful consideration of the information that I have and, should they be wrong, then it is only because there has been a reluctance to answer questions, provide information, or conduct a thorough investigation of all the evidence.

Jan Ooms                  㺔/10/2008

  • The PF took legal advice when deciding not to investigate my wife’s death and gave the usual reason of “it would not be in the public interest ..”. The only medical advice the PF obtained was from the Hospital’s Consultant Nephrologist who would have been a subject of any investigation. That medical advice cannot, therefore, be regarded as impartial and I have no idea what the legal advice was.
  • In 2004 there was a (differential?) diagnosis for sclerosing peritonitis (SP) entered into her medical records but, given the number of times her medical records were not consulted I am inclined to believe that the new renal doctors at the hospital also did not read this. As a consequence, my wife never knew of her condition nor was she monitored or offered treatment for SP.
  • Given her long medical history of peritoneal dialysis (PD) and peritonitis as well as the symptoms that she presented between 2004 and 2006, it seems incredulous that SP was not suspected.SEP should be suspected in case of bowel dysfunction and abdominal pain in patients on or having been on PD, since in many cases it has been diagnosed some or many months after the patient has been transferred to Hemodialysis”. JNEPHROL 2001; 14. It is difficult not to believe that there was professional incompetence in not diagnosing SP.
  • In the last week of April 2006 there were 3 different diagnoses for each of her emergency hospital admissions. Had she been treated for constipation on her first admission it is possible that an emergency laparotomy 5 days later might have been avoidable? Her 2004 medical records should have guided the doctors towards a diagnosis.
  • There is a significant amount of medical literature (pre 2004) about Tamoxifen and immunosuppressive therapy for treating SP.
  • Hospital physicians during the NHS Complaint Procedures (2007) told me that she did not present with SP symptoms between 2004 and 2006. There are however several entries in her medical records which indicate that she did. Those physicians should be required to explain this ‘deception’. The explanations and information they gave me show that the NHS Complainant Procedures is not working (or perhaps it is for them?).
  • My wife was not properly informed of the risks from surgery on May 1st 2006. The SPSO upheld this part of the complaint.
  • The haemodialysis treatment my wife received post surgery was undoubtedly complicated but was made more so because management of her fluid removal was based on guesswork rather than on any accurate monitoring of her haemodynamic status and, on several occasions, also against her feelings. It led to pulmonary oedoma in the first instance and later to hypovolaemic shock and death. The SPSO recommended that, in future cases, fluid should not be removed so rapidly. However, in my wife’s case, it was reasonable to have done so and to have done so against her wishes?
  • The medical advisers to the SPSO after ‘investigating’ her medical files concluded that her treatment was reasonable. However, one of these advisers did not have sight of the medical notes for the period from 2004 up to 2006. Another one supposedly investigating her dialysis treatment said that it should be left to “the person on the ground”. In other words there was no investigation of the management of her dialysis which was one of the issues of the complaint and there was also no investigation about her SP symptoms prior to 2006 surgery which was another part of the complaint. The investigation can hardly be said to be thorough when evidence is not even looked at. What the medical advisers seem to regard as reasonable care and treatment is of such a low standard that the competence and performance of any doctor could never be judged as unreasonable.
  • I believe that her nursing care was good.
  • One medical adviser to the SPSO volunteered an opinion that the surgery was carried out with reasonable skill. It may have been but there is no evidence to say that it was and to support another physician without evidence calls into question the impartiality of the SPSO’s medical advisers. Whether surgery (laparotomy) was done expertly or not, she was left with multiple intestinal perforations at the end of it and this iatrogenic injury was the cause of septicaemia, pericarditis, and death 5 weeks later.
  • The Nephrologist who was responsible for her treatment believed that she had left ventricular failure but did not use ECG or request a cardiology consultation. By so doing he contravened the following BMA/GMC guidelines for doctors: “referring the patient to another practitioner when indicated” & “arranging investigations where necessary” & “recognise the limits of your professional competence”. She died of pericarditis which was not diagnosed until post-mortem but there might have been a diagnosis and treatment had there been appropriate investigation and consultation.
  • The Nephrologist admitted that he was not aware that pericarditis could be a complication. She had renal failure and infection and both are known to cause pericarditis. Is there not something in BMA /GMC guidelines about doctors “keeping your knowledge and skills up to date” ?
  • I suspect that the reason why she did not receive cardiology investigation or consultation was because some medical staff felt that further care was futile. I perceived this attitude among some medical staff and, unknown to my wife and I, they had already decided that she should not be resuscitated. Since they had consistently misdiagnosed I believe that they could not predict her future with any degree of certainty. When she did die it was not from any cause that they had diagnosed. By depriving her of diagnostic investigation or consultation, they ensured that pericarditis or any other cardiological complication would not be diagnosed and, consequently, she would not be treated for it. It was also the opinion of the hospital’s independent reviewer that she did not receive the appropriate investigation and treatment because staff believed she was dying and knew that she had a DNAR (Do Not Attempt Resuscitation) order. There may be another name for this but, for the present, I shall call it involuntary euthanasia.
  • The DNAR order was made without the consent of either my wife or myself. In fact she made her wishes known (by letter) to the Hospital’s Consultant Nephrologist that she wanted every opportunity to be explored to ensure her survival including a possible transfer to another hospital. The DNAR order was signed by the Consultant Nephrologist after receiving that letter.
  • Those who make mistakes should be required to explain their performance and the onus should not be on the relatives to provide evidence or to campaign for a fair and thorough investigation of those mistakes. The whole process is done confidentially so that the wider public does not find out; the complaint is ‘contained’. “Secrecy is the badge of fraud.” ~  Chadwick, Sir John                      There were many mistakes which are now being covered up by those who have the responsibility for investigating them. “It is error alone which needs the support of government. Truth can stand by itself.” ~ Thomas Jefferson.The complaints system is a farce and it is purposely biased against complainants”. ~ Ooms, J.

Editor’s note:   Although this case refers to the Scottish Ombudsman service, the denial and manipulation of the facts is exactly the same as that dished out by PHSO.   Jan has campaigned for many years to improve this situation.