Written evidence from Nicholas Wheatley (PHO 37)
Public Administration and Constitutional Affairs Committee
Parliamentary and Health Service Ombudsman Scrutiny 2020-21 inquiry
Summary
1. PHSO Annual Report 2020-2021.
2. The Time Taken for the PHSO to respond to Subject Access Requests and Freedom of Information requests.
3. Casework Performance.
4. Value for Money.
5. The Role of the Ombudsman.
6. Impact on Other Organisations.
7. An Example of a Shockingly Flawed PHSO Investigation
1. PHSO Annual Report 2020-2021
a) Basic mistakes in the Annual Report
The annual report states that complaints are upheld when either failings or injustice are identified. This is not correct. The legislation states that complaints can only be upheld when both failings and injustice are identified. How can the public have confidence in the PHSO when such basic mistakes are made in the annual report?
Clause 5(1)(a) of the Parliamentary Commissioner Act 1967 states that the Commissioner may investigate when a member of the public “claims to have sustained injustice in consequence of maladministration”.
Clearly a complaint must consist of both maladministration and injustice. However the table on page 33 of the annual report describes decisions involving “maladministration and/or injustice”, and indicates that “failings or injustice” are sufficient to uphold a complaint.
For example, a complaint might not be upheld if incorrect treatment is administered to a patient who subsequently dies, if it is considered that the patient would have died anyway and there was therefore no injustice despite maladministration. This reason for failing to uphold a complaint has been used in the past.
Or a complaint might not be upheld if for example people of similar age and NI contributions received different pension payments as the result of the introduction of the new state pension. In this case there is an injustice but there is not considered to be maladministration involved since this was an act of parliament.
https://phsothetruestory.com/2021/10/18/the-great-pension-heist/
Similarly clause 3(1) of the Health Service Commissioners Act 1993 describes the three types of complaint that can be investigated. These are service failure, maladministration, and failure to provide a service. The table on page 33 however only includes maladministration.
b) Is the PHSO as accountable to Parliament?
Page 12 of the annual report states that:
“PHSO is accountable to Parliament. Our work is scrutinised by the Public Administration and Constitutional Affairs Committee (PACAC)”
However PACAC’s website states that PACAC’s role is more limited:
“PACAC’s role in relation to the PHSO is:
to examine the reports of the Parliamentary Commissioner for Administration and the Health Service Commissioner for England, which are laid before this House, and matters in connection therewith”
This is confusing for the public. Is the PHSO accountable to Parliament as the PHSO claim or is Parliament limited to examining the reports produced by the PHSO, and connected matters, as PACAC’s website claims? Some clarification in this matter would be very helpful.
2. The Time Taken for the PHSO to respond to Subject Access Requests and Freedom of Information requests.
a) I submitted a subject access request to the PHSO on 17 March 2021. I received an incomplete response 3 months later on 29 June 2021. I requested the missing data on 20 July 2021 but have not yet received the requested information, 7 months after the original request.
b) I submitted a Freedom of Information request on 9 August 2021 but have not yet received a response, nearly 12 weeks later.
https://www.whatdotheyknow.com/request/communications_between_the_board
3. Casework Performance
The Service Charter KPIs still reflect poor casework performance. In particular the two following important KPIs remain at a very poor level.
We will gather all the information we need, including from you and the organisation you have complained about, before we make our decision – 51%
We will explain our decision and recommendations, and how we reached them – 49%
The PHSO like to suggest that this is just a problem of communication and that the complainants simply don’t understand how their complaint has been thoroughly addressed.
Regarding the first KPI above, the PHSO rarely actively seek information from the body being complained about and simply rely on the information provided to them by the body. The low score of 51% represents the frustration felt by complainants at this failure to seek more information. In my complaint the PHSO did not make any attempt to find out if correct equipment was used in a medical case but simply accepted the claim by the Trust in question that it was.
The low score in the second KPI simply reflects the fact that no explanation will satisfy a complainant when the complainant is fully aware that the complaint has not been properly investigated.
4. Value for Money
a) 91% Reduction in the number of Parliamentary Investigations
The following graph shows the 91% reduction in the number of parliamentary investigations carried out by the PHSO between 2014-15 and 2019-20. It includes an 85% decline in investigations under the current Ombudsman. The data for the graph was obtained from PHSO publications.
This graph shows the 70% reduction in the total number of investigations carried out by the PHSO since 2016-17.
b) Breakdown of costs in annual report is very limited
The detailed investigation is the most time consuming and resource intensive part of the complaints process, and the Ombudsman alluded to this in his evidence last year when he stated, with regards to primary investigations:
“This prevents us having to conduct long investigations….without any good reason except public expenditure” (Q2, scrutiny transcript).
However there is no breakdown of costs within the annual report with regards to the different stages of the complaints process, so it is difficult to know how much public expenditure was saved by the 70% decrease in investigations during the current Ombudsman’s tenure, or how that expenditure was reallocated.
We do know from the annual reports that there was a 10% reduction in staff numbers from 431 in 2016-17 to 389 in 2019-20. However, we don’t know how this related to the 70% decrease in investigations over the same period. Last year the number of staff increased by 8% to 419.
5. The Role of the Ombudsman
During last years scrutiny the Ombudsman stated in response to a question about the reduction in investigations carried out that:
“Investigations are not an indication of the work of the Ombudsman service” (Q2, scrutiny transcript, 23 November 2020).
This will come as a surprise to the public and perhaps to members of parliament as well, since the Parliamentary Commissioner Act 1967 specifically states in clause 1 that:
“For the purpose of conducting investigations….there shall be appointed a Commissioner…”
Perhaps to get around this awkward problem the Ombudsman, in a modern example of Newspeak, has renamed what used to be known as assessments as “primary investigations”.
A primary investigation does not uphold a complaint though. It can either reject a complaint or pass it on for a detailed investigation.
If, as the Ombudsman stated during last year’s scrutiny when referring to investigations, “…modern Ombudsman services do not work that way” (Q2, scrutiny transcript), shouldn’t the change in the way the Ombudsman service is run be debated in parliament so that MPs and their constituents can have their say?
How can the Ombudsman redefine the role of his office without parliamentary approval and a change in the law?
After all, the public expects an Ombudsman to investigate their complaints, as stated in the legislation.
6. Impact on Other Organisations
There seems to be little evidence that the work carried out by the Ombudsman has much if any effect on the public bodies over which it has jurisdiction.
a) HS2
For example, a report into a complaint about HS2 was laid before Parliament in May of this year. It described HS2 as “dishonest, misleading and inconsistent” when dealing with the complainant.
However the same complainant had made a similar complaint about the same organisation, HS2, six years previously.
And there was a follow-up inquiry by PACAC
https://publications.parliament.uk/pa/cm201516/cmselect/cmpubadm/793/793.pdf
Despite all this, HS2 appeared to have changed little in its attitudes towards the public and similar failures were identified in 2021 as were identified in 2015.
In addition there is evidence to suggest that while accepting the PHSO report’s findings in public, in private HS2 did not accept the findings.
b) DWP
In the Ombudsman’s Casework Report of 2019, a case concerning the DWP and the new state pension can be found on pages 14 and 15.
https://www.ombudsman.org.uk/sites/default/files/Ombudsman_Casework_Report_2019.pdf
The DWP did not however properly implement the changes recommended in the report.
In the 2017-18 scrutiny of the PHSO by PACAC held on 22 January 2019, the Ombudsman responded to a question about what happens when a body does not comply with recommendations made in a report.
Rob Behrens: Absolutely. This is fundamental to our credibility. I know this from my experience of being an ombudsman for 12 years. If you do not deliver when a body in jurisdiction does not accept your recommendations, then you have to take action to make it publicly known that those bodies are not implementing the recommendations. I am absolutely committed to that. (Q112)
However, in this case, published in the Ombudsman’s Casework Report of 2019, the Ombudsman did not make it publicly known that the DWP did not properly implement recommendations.
According to the journalist David Hencke:
So what happened? Sweet nothing. The DWP ignored the deadline and then produced a factsheet which I know from correspondence the Ombudsman clearly felt did not fit the bill. But after one attempt to get this changed the Ombudsman dumped the issue and wimped out of getting the ministry to implement their recommendations.
Their press office told me: “
“We closed this case in November 2020 after working with the Department for Work and Pensions on compliance. At this point we referred the case to the Work and Pensions Select Committee, to oversee DWP’s ongoing work in this area. They will hold the Department to account on the actions it has agreed to take. “
Actually the communication got lost and the committee knew nothing of this to the following April.
c) Eating Disorders
One of the most tragic and high profile cases investigated by the PHSO was the death of Averil Hart after shocking failures of care by her local Trust.
On 14 May 2019, 18 months after the Ombudsman laid his report before Parliament, PACAC held a follow up inquiry at which Dr. Dasha Nicholls, Chair of the Faculty of Eating Disorders at the Royal College of Psychiatrists, and Andrew Radford, Chief Executive of BEAT Eating Disorders, gave evidence.
Dame Cheryl Gillan asked:
What impact has that report had on people suffering from eating disorders and those people treating patients with eating disorders? (Q6)
Dr. Nicholls replied:
As yet I would say relatively little.
Andrew Radford replied:
While there is a lot of momentum, particularly on the policy side, if we look at what is happening in Norfolk where Averil died, I believe that the situation is as bad now, if not worse than it was in 2012 when Averil died, so much so that the trust providing the service there is currently only accepting referrals for individuals who are triaged as having a severe eating disorder and are in need of priority treatment. I think that is worse than it was in 2012.
No doubt there has been some improvement since then but what we do know is that there were 4 more deaths from anorexia in the years since Averil Hart’s death in 2012, linked to the same Cambridge and Peterborough Foundation Trust, while the complaint was being mishandled by the PHSO.
https://www.edp24.co.uk/news/health/uea-student-averil-hart-s-death-linked-to-four-others-1397772
In March 2021 a Regulation 28 Report to Prevent Future Deaths was sent to the Secretary of State for Health and Social Care by the Coroner after an inquest found in November 2020 that “the death was avoidable and that it was contributed to by neglect”.
https://www.judiciary.uk/wp-content/uploads/2021/03/Averil-Hart-2021-0058-Redacted.pdf
d) Imaging Problems
In a report laid before Parliament in July 2021 the PHSO found multiple failings in the way imaging is handled across the NHS.
Several recommendations for improvements were made. The public will no doubt be interested in how this case progresses.
7. An Example of a Shockingly Flawed PHSO Investigation
An example of the poor quality of PHSO investigations and the victimisation of complainants can be found amongst the case summaries published on the PHSO website.
I defy any member of the Committee who reads this investigation not to feel uncomfortable by what they read, if not to be profoundly shocked.
The case concerns a woman whose mother died at the Chelsea and Westminster Hospital. The details of the complaint can be found here:
https://decisions.ombudsman.org.uk/report/?id=d5f39b6a-34a7-eb11-9442-002248016e26
In the section entitled “Findings” we see the PHSO interrogating the complainant rather than the Trust, questioning her integrity, while accepting the statements provided by the Trust.
The complainant makes a detailed complaint about her mother’s treatment.
20. Mrs A says Mrs N’s nose was bleeding continually all morning, and had not stopped when staff came to wash her around 9.45am. Mrs A says staff asked her to leave the bedside at this time, so she left the ward to make a telephone call. She says Mrs N’s nosebleed had worsened when she returned a few minutes later. She says she could see blood collecting in her mouth, and she brought up two large clots of blood.
The PHSO disbelieves the complainant.
23. In our provisional views report, we said we thought it was unlikely Mrs N’s nose had been bleeding continually all morning. We said staff would have noted this in the records and sought medical advice sooner.
The complainant explains her complaint in more detail.
24. In response to this Mrs A told us the staff would not have known it was continually bleeding. She says the nurse briefly saw them at the 8am handover, and then when she dropped off Mrs N’s medication. She says staff did not attend to Mrs N again until they came to wash her at 9.45am.
The PHSO disbelieve the complainant again and question her actions.
25. In our provisional views report we said if Mrs N’s nose was actively bleeding when staff came to wash her, it was unlikely Mrs A would have left the ward.
The complainant is forced to explain the complaint in more detail again.
26. In response to this Mrs A told us she only left because staff asked her to. She says this was unusual, as staff usually encouraged her to stay and comfort her mother while she was laid flat. Mrs A says she was taken aback by the nurse’s request, so left without questioning it or considering the impact of lying flat with a nosebleed.
The PHSO make excuses for the behaviour of the staff and make assumptions about their behaviour, for which there is no evidence, in order to explain it away.
27. We understand why Mrs A is so concerned about her mother potentially being laid flat. However, as staff would not have been aware Mrs N’s nose had been dripping constantly for several hours, we see no reason to criticise them if they briefly laid her down to change her pad and sheets.
28. Staff are likely to have seen, at most, a few drips of blood. Given they were washing her, they may have assumed the blood was dislodged from the earlier nosebleed night staff documented at 6am. If blood had been flowing from Mrs N’s nose we would expect staff to follow NICE nosebleed guidance. In this scenario we find there is insufficient evidence this was necessary.
Further on in the Findings section the PHSO refuses to believe the complainant’s statements yet again. We see that the PHSO claim to respect the complainant’s version of events while refusing to believe them. In many ways this sums up the fundamental failure of the PHSO, which is the refusal to believe the complainant unless they can prove their claims. Any victims of sexual assault will recognise this approach to an investigation.
34. Mrs A says staff did not take Mrs N’s observations at 10am either. She says she did not see the day staff bring the observations monitoring equipment to her mother’s bedside at any point. She also says she is sure they did not do this while they were washing her.
35. Whilst we respect Mrs A’s recollection of events, there is no other evidence to indicate the observations at 10am or 10.15am were falsified.
It might be worth considering what type of evidence the PHSO might accept as proof that the observations were falsified. Presumably only an entry in the medical notes describing how the observations had been falsified would suffice.
The complaint now becomes truly shocking as the complainant describes how she was instructed to carry out a medical procedure on her dying mother. She was shown how to use a suction machine to suction the blood out of her dying mother’s airways. I have personally seen this procedure carried out by a trained doctor and it is very distressing for both patient and relatives. It should only be carried out by trained medical staff.
49. Mrs A said the nurse asked the health care assistant to set up the suction machine and show Mrs A how to use it. She says the instruction was minimal. She says the staff told her it was like the suction machine at the dentist, and she should keep her finger over the hole and keep dipping the pipe in saline so it did not get blocked. She says staff then left her alone for 30 minutes while she was suctioning her mother’s airway.
47. The RMM guidelines explain there are some risks associated with airway suctioning. These include pain and distress, reduction in oxygen levels, slowing the heart rate, destabilising the cardiovascular system, damage to the airway, bleeding and infection. RMM guidelines say the risk of complications is higher if staff choose the wrong type of equipment, use poor technique, or too much pressure.
In this case the PHSO are forced to accept the possibility that the complainant might be telling the truth. This is not because they choose to believe her but because the Trust themselves admitted that her knowledge could only have come from instruction. There is no doubt that the PHSO would have stated there was no evidence that this had happened without the Trust’s confession.
50. During the local resolution meeting the Trust acknowledged Mrs A had detailed knowledge of suctioning which could only have come from a member of staff training her.
However the PHSO will only consider believing the complainant in the most extreme circumstances.
52. During our conversations Mrs A gave a compelling and clear explanation of how her mother deteriorated suddenly while she was suctioning her airway. Mrs A said she was worried she had accidentally done something wrong which caused her mother’s deterioration and death.
53. These are strong statements from Mrs A. As she told us she is worried she may have caused her mother’s death, this adds weight to the likelihood staff left her alone to suction her mother’s airway. We cannot see why Mrs A would say these things if her account was not true.
Incredibly, the PHSO then consider whether it is appropriate to “delegate” a medical procedure to a member of the public!
58. On balance, it is likely staff did show Mrs A how to suction her mother’s airway and then left her alone to complete this task. This is not in line with the NMC code, which says nurses should only delegate tasks to others if the task is within the other person’s scope of competence. It also says the person must be properly supervised and supported when carrying out a delegated task.
Finally we return to the point raised in section 1 of this evidence. The Ombudsman will not uphold a complaint of service failure or maladministration if the patient would have died anyway, as there is not then considered to be any injustice! In this case however the PHSO decide to identify as an injustice the complainant’s feelings of guilt regarding her mother’s death. In fact the obvious “injustice” was forcing a woman to suction the blood out of her dying mother’s airways.
70. Although we have seen no evidence suctioning had a clinical impact, we recognise it has caused Mrs A significant worry and distress. The timing of Mrs N’s final deterioration left Mrs A feeling as if she accidentally caused this and contributed to her death. This is an injustice to her. If staff had done suctioning rather than delegating to Mrs A, this additional worry and distress could have been avoided.
Although this case was partly upheld it clearly demonstrates why the PHSO is not fit for purpose. Their reluctance to believe the complainant is only matched by their reluctance to criticise the Trust. My heart goes out to this unknown complainant who went to the PHSO for justice and was disbelieved and let down and no doubt crushed by the abysmal failure of the PHSO to act seriously and impartially or to ensure the people involved in this appalling tale were held properly to account.
October 2021