Written evidence from Martin Jeremiah
MBA (CAL 37)|
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.
(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
(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
(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.
(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
(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
.". 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
The role of Patient Advice and Liaison Services
as a "gateway" to the complaints system
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.
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
(xxii) Best left to the courts I feel.
Encouraging the use of mediation before litigation
(xxii) Can be offered as a solution at local
resolution as a matter of course in a complaint.