Healthcare Needs an Ombudsman
Public healthcare needs public accountability
Parliament’s Select Committee on Health and Social Care wants to rate the government’s fulfilment of its pledges on healthcare. This is a triumph for accountability, says the Committee’s chair, Jeremy Hunt. But wait a moment: Jeremy Hunt was Britain’s longest-serving Health Secretary, so why didn’t he submit himself to such accountability then? Is this just another publicity stunt by a failed former Health Secretary, Remainer, and party leadership contender?
Ironically, Hunt now admits the under-accountability that he denied as Health Secretary. Back then, Hunt called for cultural change, but not structural change. He admitted unacceptable levels of avoidable deaths, but not accountability for those deaths. He reached for lessons from the Air Accidents Investigation Branch, but set up an equivalent for maternity deaths alone. Now he proposes to rate health provisions, such as patient safety, cancer survival, and mental health, using a four-point scale taken from Ofsted, which inspects schools. Why does British healthcare not have suitable investigators and inspectorates of its own?
The government has long claimed that healthcare is accountable to “independent” organisations, but the government is spinning vice as virtue. These organisations are too numerous, “independent,” and self-interested (most represent professions and providers).
Parliament’s Public Administration and Constitutional Affairs Committee (PACAC) counted more than 70 organisations involved in health complaints or investigations, of which “[n]o single person or organisation is responsible and accountable for the quality of clinical investigations or for ensuring that lessons learned drive improvement in safety across the NHS.”
Your final champion is supposed to be the Parliamentary & Health Services Ombudsman (PHSO), but this is mistermed in so many ways. It is unaccountable to Parliament, except to submit annual reports. It is unaccountable to the Prime Minister’s Office, except through long-term funding cycles and appointments. It can choose for itself which complaints to investigate or reject. No parliamentary committee or politician can overrule it.
Since its employees are not civil servants, we have no idea how they are qualified. They often turnover quicker than the cases they’re handling. One complainant told me that a PHSO report on his complaint “seemed to have been written by a 12 year old.”
The PHSO rates itself, against standards issued by transnational non-governmental organisations, such as the International Ombudsman Institute. When the PHSO’s most recent annual report was reviewed by PACAC, the Ombudsman quoted from the Venice Principles (drawn up by the Venice Commission of the Council of Europe), the third of which covers the Ombudsman’s remuneration and compensation. For the record, the Treasury funded the PHSO with £26 million in 2019-2020, down from £32 million in 2016-2017.
With public money, but without public accountability, the PHSO isn’t motivated to support complaints. The PHSO publicizes a few cases that make it look good. Meanwhile, complainants have populated websites with their frustrations. Some complainants dedicate Twitter accounts to their cases. A compendium of cases has been published as a book.
In 2013, after revelations that the PHSO investigated only 1 percent of enquiries, its then chief (Julie Mellor) promised a ten-fold rise in the number of investigations. It actually investigated less than 8 percent in the subsequent fiscal year, or merely 2,199. The NHS received 175,000 complaints that year. She ended her tenure in spring 2017 with a record 3,715 investigations for the fiscal year, but in the most recent year the PHSO investigated 3.3 times fewer.
The PHSO’s latest annual report boasts that it has increased the rate at which it closes enquiries before they can be registered as complaints (from 92 percent in 2017-2018 to 96 percent in 2019-2020). The PHSO admits to 103,965 enquiries in the most recent year. Only 5,236 ended in “decisions,” and some of those cases had been carried over from previous years. The PHSO carries complaints year on year, but it reports the backlog annually as “complaints handled,” thereby inflating its apparent investigation rate. The number of “decisions” in 2019-2020 amounts to 5 percent of the year’s enquiries. Of the 5,235 so-called “decisions,” 3,742 (71 percent) were decisions against investigation. The PHSO reports these null decisions with the misleading terms “resolutions” and “assessments,” where “resolution” usually means the complainant receives an apology without investigation, and “assessment” means the PHSO claims insufficient merit.
Remember that 96% of all enquiries did not even get registered as complaints. Thus, the true rate of uninvestigated enquiries in 2019-2020 is more than 99 percent. A different measure confirms this scale: the number of investigations ending in a partial or full uphold is just 650, or 0.6 percent of enquiries received that year.
The PHSO doesn’t present these measures. The PHSO prefers to characterise most enquiries as requests for information or frivolous complaints. It reports its investigation rate as a proportion of the minority of enquiries that it categorises as “complaints.” However, this trick raises its investigation rate to only 2 percent.
The PHSO has defined these categories in different ways in different annual reports. It has never been audited. The PACAC once asked for clarification, but the PHSO is under no obligation to comply.
The PHSO’s annual report allocates more pages to describing its environmentalist and personnel policies than its handling of healthcare complaints. All in all, the report adds up to 128 pages, of glossy colour photos of smiling stock images and selective, anonymised quotes.
The PHSO spins a few cases as successes, but has been caught misrepresenting even these. For instance, in March 2020, the PHSO reported on its casework in 2019. Rob Behrens wrote: “I am publishing this report as part of our commitment to becoming more transparent.” Yet the report shares only 21 health service complaints. It does not justify its selectivity.
The first case in the report is the Child Support Agency’s payment of £10,000 in child support arrears to a single parent. The PHSO claims this as an example of its successful intervention, but elsewhere the complainant reveals “an almighty battle and the involvement of solicitors on both sides. I am acutely aware that, had I not involved solicitors to threaten a judicial review application, my complaint would not have been successful.” Back in 2015, the PHSO had upheld the complaint, but soon reversed itself after consulting the Agency. It restarted an investigation, turned over the investigators, and only restored the uphold in 2019 given the threat of judicial review.
Complaints fester for years, while the PHSO refuses to acknowledge letters
I have been shown several letters to complainants from the current Ombudsman (Rob Behrens) admitting that a PHSO investigation was “not robust.” However, in all examples he is referring to cases investigated years ago during Julie Mellor’s tenure, “before my appointment as Ombudsman…PHSO is however now a very different organisation…The majority of the staff involved in handing the original investigation no longer work for PHSO.” You read that right: Behrens claims unaccountable turnover as a virtue.
Yet even when Behrens admits where the PHSO mishandled evidence, he fails to uphold the complaint. Instead, he promises a new investigation, which might take more years. One complainant told me that in 2016 PHSO started a review of its first investigation from 2013: he’s still awaiting news.
I was shown a separate case of stops-and-starts from 2016 to 2019: the PHSO’s final report ignored the evidence and gave the benefit of the doubt to a NHS Trust. (The case involved the unsafe handling of an in-patent.) In 2020, Behrens admitted fault in the investigation and apologised, but refused to quash anything. The complainants told me by email: “The PHSO now propose to undertake a further investigation which we do not want and which we have no confidence in.”
A separate complainant said by email: “Rob Behrens personally…wrote me a letter containing multiple falsehoods and maintaining the non-uphold, [to which] I replied with a detailed 20 page report proving his statements false and he totally ignored it.”
I have been shown complaints that go back to the 2000s. Complaints fester for years, while the PHSO refuses to acknowledge letters, warns of delays due to staff turnover, demands more evidence without admitting evidence already sent, pretends that the complaint is unclear, ignores a list of complaints in favour of one that it rules as unfounded, demands evidence days before closing the case, or declares cases “out of time.” One complainant told me by email: “I use the word ‘investigation’ very loosely as there was no intent to properly investigate matters.” One complainant got hold of internal emails complaining that an investigation was already taking too much “effort” and should be dropped “gently.”
The PHSO advises persistent complainants that their only recourse is a judicial review – for which you must be rich in time and money. Only seven complainants chose this action in 2019-2020. None has been adjudicated.
Complainant after complainant told me that the PHSO favours the subject of complaint. For instance, one complainant described to me how an elderly parent in palliative care experienced an adverse reaction to a cocktail of drugs due to improper monitoring. The complainant is in the fifth year of correspondence with the PHSO, after two reviews, and two sets of clinical advice. The most recent clinical adviser ruled against the complaint on the ground that the medical notes do not admit any inadequate monitoring!
The PHSO’s clinical advisers usually choose not to expose their work, although I found one example in “Pulse,” the online magazine for general practitioners. The doctor is asked to advise on a complaint against a GP who refused to visit a patient who was seriously ill at home. She died two days after a telephone triage. The adviser judged that the GP acted in accordance with guidelines that allow for telephone triage of urinary tract infections, but his judgement doesn’t address the complaint accurately.
One complainant got hold of a clinical adviser’s original report relating to the death of a loved-one, and realised that PHSO had shared a redacted version, specifically redacting the judgement that a feeding tube had been mismanaged.
A separate complainant told me by email: “I discovered that PHSO had not given full information to the first clinical adviser but her advice was wrong anyway and PHSO had deliberately omitted a particular statement she made that would strengthen my case.”
Complainant after complainant tells me that the PHSO ignores the complainant’s evidence, accepts the subject’s word despite contradictory documents, and incorporates the subject’s rebuttals without giving the complainant opportunity to rebut.
In all cases shown to me, the complainant is engaged remotely, while some subjects were engaged in person. The PHSO routinely reports the names of complainants and victims, but not the subjects of complaint. Some complainants have obtained, under Freedom of Information requests, correspondence between the subject and the PHSO characterising the complainant as a troublesome person who could never be satisfied and thus should be ignored.
One complainant revealed that they received just two phone calls from PHSO during the 15 months that the PHSO took to formally investigate. In that time, the PHSO ignored all emails. One complainant summarised the PHSO’s final report (four years after accepting the complaint) as “overreliance on unsubstantiated NHS lies, secret accusations, false paper trails, submissions, deflective argument, and unfair personal innuendo.”
Margaret Whalley has publicised the sorry story of the avoidable death of a brother. More than two years after first contacting the PHSO, “it was apparent that my evidenced-based corrections to PHSO adviser reports were not being addressed…I complained upwards sending evidence. Despite my protests by early December, the Draft was sent out to all parties…Through a Subject Access Request (SAR)…I see now the flurry that must have ensued following the request I made for the material evidence. It is clear that before the release of the Final Report, many staff knew there was no material evidence to support most of the decisions. Decisions therefore would be indefensible if challenged. One named member of staff offered to try to backfit evidence.”
I have seen parts of the PHSO’s internal review of this case: it admits that the PHSO cannot “defend our findings” without evidence, and that a judicial review would present “significant risk.”
In the immediate term, my recommendation to complainants is to issue civil legal action against the first subject of complaint (the hospital, say), and ignore the PHSO. Otherwise, the PHSO will likely waste years of your time and muddy your complaint.
If you are already enmeshed with the PHSO, file a Freedom of Information request for all materials relating to your complaint, and threaten a judicial review. As shown above, the threat seems sufficient to force the PHSO into U-turns. Engaging a solicitor for the threat is expensive, but not as expensive as proceeding to court. Solicitors should be increasingly willing to take on such cases given precedents.
These are only immediate, private solutions. The indefinite, public solution is to make the PHSO accountable to elected politicians and thence the public. Governments tend to alleviate criticism of the PHSO with idle promises (such as increasing transparency), changes of personnel (which, perversely, enhance unaccountability), or new, misleadingly-titled organisations (such as Hunt’s Healthcare Safety Investigations Branch of 2017).
The government should separate a Healthcare Ombuds and make it accountable to the Health Secretary, Parliament’s Health and Social Care Committee, and PACAC. They should gain powers to review its judgements and sanction the office and its person. The staff should be civil servants, not “independents.”
Public healthcare needs public accountability. That would be good for democracy, the taxpayer, and patients.
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