Analysis: Patients’ Association takes PHSO to task on decision making

Margaret Doyle

It is an ‘iceberg hidden beneath the cold unfriendly waters of the NHS complaints systems’, the final and fatal mix of a toxic cocktail where ‘complaints go unheard and lessons unlearned’. This is the damning conclusion of the Patients Association (PA) in a recently published report  on the Parliamentary and Health Service Ombudsman (PHSO). The PA says that it can no longer recommend that patients take their complaint to the PHSO when they are dissatisfied with the response from the NHS provider because the Association has no confidence that the PHSO will carry out an independent, fair, open, honest and robust investigation.

Using case studies, the PA sets out what it perceives as major failings in the way the PHSO works. Key among its findings are criticisms of the PHSO’s approach to evidence and the overall poor quality of its decision making. Investigations are not diligent, robust or thorough, evidence is ignored, and mistakes are made, leading to re-investigations.

The PA report lists 17 recommendations, the first of which is an independent review of the role and accountability of the Ombudsman. Interestingly, the Public Administration Select Committee (PASC) recently held its annual scrutiny session with the PHSO on 10 November 2014. Among the areas explored by PASC members and the Ombudsman, Dame Julie Mellor, and the PHSO’s Managing Director, Mick Martin, were how the PHSO ensures that its decisions are sound and of high quality. A key part of the session focused on the PHSO’s mechanism for review of decisions – it is the final tier in the complaints process and there is no process of appeal, so the only way for complainants (or complained about) to challenge errors in a decision is by judicial review, which looks only at the way the decision was made, not the merits of the decision itself. PHSO has both an internal review process and an external review process. PASC was particularly interested to identify who the external reviewers are, how many cases are reviewed, and with what outcomes. The responses lacked detail on these aspects, describing an unspecified number of ‘professionals’ who carry out external review and giving a figure of about 15% of cases going to external review (but 15% of what figure?). There was, however, acknowledgement by the PHSO that external review has a role to play and that change is needed.

A case study in the PA report illustrates the frustrations that complainants can experience with the review process. Elsie Brooks’ family complained to the PHSO about the response they had received to their complaint about their mother’s death in hospital and the lack of care they felt she had received. They believed the Ombudsman’s report contained errors and that the investigator had ignored evidence and accepted dubious evidence during the investigation.

We asked for a Review on the grounds that the Ombudsman: 1. Had allowed the Trust to withhold records. 2. Would have known that copies of these records existed if they’d read the complaints correspondence. 3. Knew they were publishing inaccurate statements that were not supported by the medical records. 4. Showed bias in allowing the Trust to influence the Ombudsman’s report. We offered to send them the set of medical records we had so that the Review team could compare them with their own. The Review Team said this was not necessary as they would ‘only be looking at the complaint handling’ and not at the original complaint. We did not see how they could judge whether they had all the relevant evidence if they didn’t look at the clinical records that the Trust had withheld from them.

The case was accepted for internal review, but before a review was started, an inquest into Ms Brooks’ death was announced. The review was put on hold at that point. The family requested that the report also be put on hold and not released until it was corrected, following the review, but the PHSO’s review team refused. The investigator asked the Trust to go ahead and comply with the PHSO’s recommendations. The family felt let down:

The recommendations were arbitrary and unrelated to our mother’s case, therefore there could be no shared learning from them. The Ombudsman had not established what had actually happened, so there was no way these recommendations could reduce the likelihood of the same mistakes happening again.

Two years after the internal review was put on hold, the PHSO agreed to an external review of the case. This is one example, and as with all the case studies it is powerful. But from the PA report it’s unclear how many such cases it has come across or what the scale of the problem is. In response to the report, the PHSO stated that it is in the process of modernising its approach:

We’ve embarked on the second part of our modernisation drive. We are engaging with complainants, including some of the people mentioned in this report which features seven cases, to help draw up a service charter – a set of promises to users about what they can expect when they use our service.

This suggests the PHSO’s focus will be on the service it provides, and not on the quality of its investigations or decisions. Its evidence to PASC also suggests that its quality assurance system will rely heavily on listening to ‘customers’: ‘the way in which we test our performance in that is by listening to our customers throughout and getting their views’. It will be interesting to see what changes this brings to the process of challenging PHSO decisions.

About the author

Margaret Doyle is the senior research officer for the UKAJI project; she is also a consultant in appropriate dispute resolution (ADR) and an independent mediator. She is the author of Advising on ADR (Advice Services Alliance 2000) and consultant for the website ADRnow.