Complaints and Litigation - Health Committee Contents


Written evidence from Martin Jeremiah MBA (CAL 37)

INTRODUCTION

I am a carer for my daughter and we have had a complaint in the complaints system since March 2004 which is still unresolved. We are currently seeking Judicial Review of the Parliamentary & Health Service Ombudsman's decision to not publish the final report after allegedly investigating the complaint from January 2007 to April 2010. The original complaint against the health trust concerned was not raised by us, but by the ward manager.

THE REASONS FOR THE RECENT SHARP RISE IN NHS COMPLAINTS

(i)  This is likely in my view to be as the result of the existence of the PHSO and how it sees its remit. Rather than "resolving complaints between the two parties" the PHSO sees itself as a judge. However, the PHSO does not have the resources to substitute the legal system and therefore selects very few cases (circa 300 a year) to investigate. The outcome is intended to be a sometimes lengthy written report. This means that over 98% of cases brought to the PHSO are effectively rejected and nothing is achieved from them.

(ii)  Therefore, if NHS employees get into a messy situation and are confronted by unhappy patients there is an easy way out. Hand the patient a "complaint form" and advise them to raise a written complaint to the trust's Complaints Department. If the patient or their representatives do not take the advice and start pursuing other avenues, raise an official complaint for them. There is a 99% chance that the Complaints department and the PHSO if necessary will see that you never have to face the issue.

(iii)  The hard pressed Complaints Department have the choice of investigating the complaint in detail or not. If they deny everything no matter what the situation or the evidence it is much easier. There an estimated 50-90% chance that the patient will give up (depending on factors such as sociological background, class of medical condition etc). An expected minority will pursue the complaint at the PHSO.

(iv)  In the event of an escalation to the PHSO there is a 98% chance that there will not be an investigation. Thus the risk to NHS employees and Complaints Departments of "facing down" a complaint having steered it in an official direction is negligible.

(v)  The consequences of rarely being on the end of an upheld decision by the Ombudsman are also very small. Since the Trafford Council decision to refuse to pay a £100,000 settlement as recommended by the LGO, both the LGO and PHSO have quietly ditched the Principles of Remedy for quietly negotiating "acceptable recommendations to the body complained of, in advance of sharing the final draft report with the complainant. Thus an embarrassing public refusal is avoided; although this means that the recommendations are nothing to do with principles or justice. Recommendations from the PHSO are not mandatory of course. The PHSO also generally writes inane recommendations so as to avoid any comeback to them."

Eg "I recommend that the trust explains to Mr. Jeremiah why they did not …."

If the trust refuses to explain and the patient protests to the PHSO, the PHSO can simply answer "It is up to the trust to implement our recommendation I suggest you take it up with the trust".

(vi)  The grounds for rejection of an investigation is generally that it is deemed by the PHSO that "there is no useful outcome" to the complaint. This is a subjective decision taken by the Assessment Panel which mainly consists of the Ombudsman, her Deputy and her Directors. Thus the decision to investigate is mainly a high-level, political or managerial one, rather than a medical one. This is seen as a vastly unfair situation as compared to the process driven system previously operated by the Healthcare Commission. It ends up with the PHSO investigating roughly the same number of complaints as they did when they were handling complaints against the Healthcare Commission. The HC kept improving until they were widely acknowledged by the health charities and Independent Advocacy Service to be of a good standard. However there were always a few complaints that slipped through the net for the PHSO to criticise. Enough to be, perhaps unwisely, given back control of Stage Two handling (escalation after Local Resolution) in April 2009.

(vii)  It can be demonstrated at greater length that the Healthcare Commissions handling was superior and more transparent in every way. The PHSO regularly misinterprets the Health Commissioners Act 1993 in order to protect herself as far as possible from this realisation. This will soon be tested in the High Court.

POSSIBLE SOLUTIONS

(viii)  Abolish the PHSO. This would mean that Local Resolution handling by trust complaints departments would be immediately subject to Judicial Review. It would provide an incentive for fair handling at Local Resolution and save the taxpayer £34 million a year into the bargain. There is likely to be a short-term "hit" in terms of publicised scandals as a result of removing the protective mechanism of the PHSO but this is equally likely in my view to be outweighed by a growth in quality of provision in the medium to long-term. Thus the risk of highly publicised scandals will be likely to diminish.

(ix)  Provide some other incentive for trust complaints departments to get it right, or penalties for escalation. For example, health trusts pay into a pool to cover the costs of handling escalated complaints proportional to the number of complaints out of the total that they have escalated.

NHS EMPLOYEES AND THEIR COMPLAINTS DEPARTMENTS

(x)  ICAS say that a large proportion of health complaints that they deal with involve missing medical notes. The complaints system is out of synch with civil law in that the balance of probability is replaced by the PHSO with the burden of proof being on the complainant. Therefore if the notes go "missing" the PHSO eg rules "no useful outcome" rather than ask where the notes went. NHS staff and complaints departments can also rely on a perceived credibility gap between an official body and an individual complainant. PHSO investigation reports can also play on this credibility gap by eg failing to mention ICAS involvement in the complaint.

Another stock phrase is that "there is no evidence that….". Whilst this may be technically true it is often because the evidence has not been pursued. For example, in my case the Second Opinion Approved Doctor wrote "the patient refused Clozaril". However, in the psychiatrists report it said "I considered offering Clozaril but felt the patient would not co-operate with the blood tests". The PHSO declined to pursue the line of enquiry because it would have inevitably opened up a can of worms on the Second Opinion and a breach of the Mental Health Act. NHS employees currently seem to understand that as long as evidence is not handed to the PHSO on a plate they can face down a complaint with impunity. Thus there is no learning and improvement from all but less than 1% of complaints. In my own health trust there were 48 complaints escalated to the PHSO in 2009-10 and zero were investigated.

The effectiveness of the new complaints system introduced on 1 April 2009

(xi)  Healthcare Commission declared no conflict of interest and was totally open with its handling. It had to be effective because the PHSO was breathing down its neck if they got it wrong. Many would therefore welcome more detailed scrutiny of PHSAO handling by the Health Select Committee and Public Administration Select Committee. The PHSO does not declare "no conflict of interest" which is much more likely because of their similar lack of empowerment to investigators. Management can therefore interfere in an investigation up to Director of Health Investigations level. As predominantly ex-health employees working at this level they might have a natural affinity to those complained of and even know health trust CEO's personally from past encounters. Customer satisfaction questionnaires are not issued to the complainant as a matter of course as was the case with the HCC because it is thought that the PHSO would get the answers they deserved from complainants. The quality of PHSO medical advice is what one mental health charity politely called "variable". Sometimes it is just plain wrong eg "it is normal practice to start with a low dosage and continue to maximum allowable dosage" (for an unlicensed drug). This is not the case for psychiatric drugs (even licensed ones), especially when there was no difference in efficacy between 10, 15 and 30 mg for the drug in question. The PHSO makes this evidence unchallengeable by refusing to make the advisers reports available under an alleged misinterpretation of Section 15. If a successful challenge under judicial review to an investigation is likely they maintain that they can "discontinue the investigation" under a misinterpretation of Section 3(2). Another method that the PHSO uses to divert judicial review is to offer a PHSO review. This comes up with the same answer in often many more months time, but leaves the complainant up against two decisions instead of one. The reviews are skilfully written for a potential judge and generally seizes on one small aspect of the complaint to eg write a PHSO letter. Thus more delay and frustration is created to put complainants beyond the limitation period for challenge. Fortunately, a recent High Court ruling in the case of the Blue Flash Music Trust v LGO means that complainants should be advised not to accept a PHSO review.

The effectiveness of the constituent parts of the complaints system: local resolution (supported by the Independent Complaints Advocacy Services); and referral to the Ombudsman

(xii)  As above, local resolution is thought to be ineffective because the PHSO process offers virtual immunity. ICAS are often treated with similar disrespect as the complainants themselves therefore.

The role of Patient Advice and Liaison Services as a "gateway" to the complaints system

(xiii)  ICAS are more effective because they are not funded directly by the trust. He who pays the piper calls the tune. PALS were initially involved in our case but backed off.

The failure of some Foundation Trusts to report numbers of complaints

(xiv)  This is not surprising.

The Government's plans for future complaints-handling arrangements (the White Paper says, on p. 19, "Local authorities will be able to commission local HealthWatch or HealthWatch England to provide advocacy and support...supporting individuals who want to make a complaint")

(xv)  It will not make any difference while the current complaints system operates.

How data from complaints will feed into the planned new commissioning arrangements (the White Paper says, at Para. 2.26, "Building on existing complaints handling structures, we will strengthen arrangements for information sharing")

(xvi)  The data will not be meaningful while the current complaints system exists.

LITIGATION

The cost of litigation against the NHS

(xvii)  Is likely to rise as people increasingly realise that they will gain nothing from the complaints system.

Reasons for the inflation of litigation costs in recent years

(xviii)  The failure of the complaints system.

The impact of conditional fee ("no win, no fee") arrangements on litigation against the NHS

(xix)  There is therefore less stress in litigation than pursuing a complaint in the complaints system. Less risk of being victimised too.

The effect of litigation on the development of an open reporting and learning culture in the NHS

(xx)  Assumes that the complaints system is open and learning by contrast for example. There is strong evidence to the contrary.

The Government's intentions regarding the implementation of the NHS Redress Act 2006

(xxi)  A complicated bureaucratic mix of complaints and litigation. Abolishing the PHSO and making local resolution immediately subject to judicial review is likely to be more effective in my view.

The possible benefits of a statutory right to compensation for "treatment injury" from an independent fund, without the need to prove negligence, as required under tort law

(xxii)  Best left to the courts I feel.

Encouraging the use of mediation before litigation is initiated

(xxii)  Can be offered as a solution at local resolution as a matter of course in a complaint.

December 2010



 
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