Written evidence from the Parliamentary and Health Service Ombudsman (CRC0091)

1.         INTRODUCTION

1.1.            The Parliamentary and Health Service Ombudsman is the final step for people who are unhappy with how UK government, public service or the NHS in England has dealt with their complaint. Our role is to investigate complaints fairly, without taking sides and make recommendations to put things right. Our service is free to use, open to everyone and completely independent.

1.2.       We welcome the opportunity to contribute to the Committee’s inquiry into complaints and raising concerns. Our vision is for complaints to make a difference and to help improve public services for everyone. Our comments therefore focus primarily on complaint handling, support for complainants and how the culture in the NHS regards feedback and complaints. We also respond to some of the concerns raised by the Committee in its 2011 inquiry on complaints and litigation.

1.3.       We believe it is too soon to judge sustained improvements both in the ability of service providers to listen and provide effective redress and to use the learning to improve services following Sir Robert Francis’ inquiry into Mid Staffordshire NHS Trust, the Government’s response, the review of the hospital complaints system and other such significant reviews (Francis, Feb 2013; Department of Health, 2014a; Clwyd and Hart, Oct 2013; Cavendish, Jul 2013; Keogh, Jul 2013; National Advisory Group on the Safety of Patients in England, Aug 2013).

1.4.       We know that it takes time to bring about the cultural changes that are required. We also know that it takes system intervention to create a vision for a better patient experience, coupled with the tools, guidance and the use of systematic approaches like the science of Human Factors. We believe that there is now momentum at a national level to bring about change. However, it is at Trust, hospital, primary and social care practice level and from ‘ward to board,’ that the pace of change will be decided. We are also playing our part in leading key aspects of change to patient and service users’ experiences of complaint handling.

1.5.       When Dame Julie Mellor became Ombudsman in 2012, we listened and acted on the view of customers, staff and Parliament. We also considered the previous inquiry into complaints and litigation carried out by this Committee. With a new approach, we believe we are making significant contributions to improving the complaints system by:

•         Giving more people access to justice – as the second and final tier for complaints about NHS services, we are delivering a higher volume of investigations, and are ambitious to do more. Between April and December 2013, we received 14,111 enquiries about healthcare complaints and completed 904 investigations. This compares with 13,110 and 232 respectively in the previous year. The number of cases we accept is very similar to the Local Government Ombudsman.
•         Increasing the use of casework insight from complaints to help Parliament hold the health service to account for delivering the change they have promised as a result of complaints.
•         Seeking legislative reform of ombudsman services and powers to improve the service we offer users of health and social care services.
•         Working in partnership with others – we are a member of the Department of Health Complaints Programme Board and are leading work with Healthwatch and the Local Government Ombudsman, to develop a measurable vision for complaint handling across health and social care. The Board has a single, agreed work programme and aims to ensure complaints are handled effectively, and learning from them is shared and acted upon locally and nationally to benefit patients, their carers and relatives, and the public. Our strategic partnerships with organisations such as the Care Quality Commission, Healthwatch and patient and service user groups are an important part of our approach to delivering change.

1.6.       We are keen to explore the Health Select Committee’s appetite for receiving and acting on our reports. We believe greater scrutiny would support holding health and social care services to account for improvements in care. It would also encourage an openness towards remedy and learning from feedback and complaints on system‑wide issues.

2.         THE TOXIC COCKTAIL

2.1.       The evidence from our casework and our research shows that when reluctance to complain is combined with a defensive response to a complaint, it leads to a toxic cocktail. This dangerous combination of reluctance and defensiveness prevents concerns and complaints being heard and addressed. For example, we know from our research that 18% of patients want to complain, yet 39% of those who want to complain do not (PHSO, September 2012).

2.2.       Perceptions that the complaints system is too complex and bureaucratic and that nothing will change as a result of making a complaint prevent many people (64%) from complaining. Other common reasons why people do not complain include:

•         Information and knowledge: people do not know how or where to make a complaint.
•         Fear: people are fearful of not being listened to or taken seriously, and worry that they may receive a worse service as a direct result of complaining.
•         Support: people lack access to an advocate or specialised support to make a complaint.

2.3.       This analysis of the public’s reluctance to complain is reinforced by  research conducted by the Care Quality Commission (April 2013), which found one in nine people are reluctant to speak out about poor care. Again, typical reasons for not complaining include not wanting to be thought of as a trouble maker, believing complaining will not make a difference and staff being so stretched that complaining is perceived as something that will not help. A smaller number feared their care would get worse if they complained. Research from Healthwatch (June 2013) paints a similar picture. Some 48% of patients are not confident that a formal complaint will be dealt with and 49% lack confidence in the complaints system overall.

2.4.       As the findings illustrate, there is a lack of trust in the NHS. Not only do the public feel that their complaints will not be dealt with, they also believe complaining will not make a difference. This is a serious indictment of a fragmented and complex complaints system that has not been designed with people at its heart.

Experience of complaining

2.5.       Inadequate complaint handling systems mean there are missed opportunities to learn from mistakes. However, poor complaint handling can also be an indicator of more substantial problems, such as not listening to patients, not responding or acknowledging when things go wrong and not doing enough to put things right.

2.6.       The Ombudsman service, as the last line in the complaints system, currently receives 10% of NHS complaints. In 20% of cases we receive, the NHS fails to offer good explanations when things go wrong, and to acknowledge mistakes (PHSO, April 2013). This is frustrating and upsetting for complainants, who want three things: a clear explanation, an acknowledgement of the mistake and an assurance that action has been taken to ensure the same failing will not occur again (PHSO, August 2013). Yet poor communication and inadequate responses continue to be a theme throughout our casework.

2.7.       Hierarchy and defensiveness can stand in the way of resolving concerns; staff can sometimes be reluctant to challenge more senior staff and people can often feel anxious about raising questions or concerns with staff. Careless communication, insincere apologies, an occasional lack of courtesy, and unclear explanations have led to a failure of trust amongst the public.

Leadership and defensive culture

2.8.       Good complaint handling requires strong and effective leadership. Nowhere is this demonstrated more strongly than in the Francis report, in which it was said that the board at Mid Staffordshire ‘did not listen sufficiently to its patients or its staff or ensure the correction of deficiencies brought to the Trust’s attention’. Yet this is not an isolated example. We know that many others are failing to respond well to concerns and complaints.

2.9.       In June, we published research (IFF, June 2013) that showed most leaders of NHS hospital trusts were failing to use information as well as they should because the data that boards received lacked the right quality and detail. Only 20% of boards review learning from complaints and take action to improve services. Less than two thirds use a consistent approach to reviewing complaints data and one fifth believe the information they receive is ineffective in identifying and reducing risks to patient safety.

2.10.   The lack of a consistent approach by boards to complaints is troubling. Openness and learning must be strongly led and must start with decisive actions by hospital boards if the NHS is to tackle a defensive culture. The following examples highlight the consequences of a defensive culture within the NHS.

2.11.   It is clear that when serious untoward incidents happen, there needs to be an independent investigation that looks at the root cause of the complaint and the role of Human Factors, such as people and the organisation’s culture. We expect all service providers to adopt this approach to help them understand why mistakes happen and to help improve services for everyone.

3.         CRITICAL SUCCESS FACTORS FOR CHANGE

3.1.       Avoiding the toxic cocktail will require a very different purpose and approach to that currently operating. We believe there is still a need to recognise and act on the need for cultural change across the health and social care system:

              What users need:

1. Improved access to information and services that are easier to navigate.
2. Support and empowerment to raise concerns and use the complaints system.

              What services need to focus on:

3. Board leadership.
4. Listening and addressing concerns on the front line.
5. Building the capability and capacity of complaints functions.

              What the system as a whole needs to focus on:

6. Vision, measurement and accountability – what should an integrated complaints system look like and how will success be measured?
7. Developing and sharing good practice.
8. Developing expertise in Human Factors science and Root Cause Analysis to learn from complaints and understand better why mistakes happen in order to facilitate learning.

These eight areas for change refer to activities that are designed to improve the complaints system now. Realising the impact of these changes will take longer. We consider each of these issues in turn below.

3.2.       At the point people access services, they should feel empowered to give feedback so that queries can be acted upon before they become a complaint. A partnership approach would give individuals permission to outline any worries to a named contact responsible for their care at an early stage. Feedback of all types should be proactively encouraged and acted upon straight away. Staff should work with the complainant to agree the specific concerns and the outcomes sought, as well as establishing how and when the complainant will be kept informed. When a formal complaint is raised, the process should be characterised by openness and transparency.

3.3.       At an organisational level, boards need to learn from the experience of those using services and to take action to make improvements. Chief executives need to take personal responsibility for making this happen. We believe leadership and culture change must start with the board in order to be delivered on the front line. Therefore, staff should be empowered to act swiftly in response to questions and complaints.

3.4.       At a system level, three important changes are required. Firstly, how the NHS and social care organisations identify and share good practice in complaint handling needs to improve. Secondly, the NHS needs to ensure it looks at the root causes of problems that lead to complaints by applying the science of Human Factors. This means seeking to understand the effects of teamwork, tasks, equipment, workspace, culture and organisation on human behaviour. Lastly, now is an important time to consider how the complaints system can be reformed so that people experience an integrated system that covers health and social care. This is why we are leading a project in collaboration with Healthwatch and the Local Government Ombudsman to develop a measurable vision for complaint handling across health and social care. The purpose of this work is to:

•         Develop a set of expectations for complaint handling that is measureable.
•         Ensure that providers and commissioners can use the expectations to inform how they handle and resolve complaints.
•         Provide a framework of complaint handling expectations to inform regulatory assessments.  
•         Provide a practical way to encourage more consistent learning from complaints to inform system‑wide improvement.

The vision should inform the wider work of a cross-system Complaints Programme Board led by the Department of Health.

4.         OUR CONTRIBUTION

4.1.       When Dame Julie Mellor became Ombudsman in 2012, we listened to our customers, staff and Parliament. We also considered the previous inquiry into complaints and litigation carried out by this committee in 2011. As a result, we are changing the work of the Ombudsman service. We are an independent body and are the final adjudicator on complaints about health services. As such, we believe we have a significant contribution to make in the following three key areas:

•         Increased access to justice for complainants.
•         Better use of insight from complaints to help Parliament hold the health service to account for delivering changes they have promised as a result of complaints.
•         Seeking legislative reform to improve the service we can provide to users of health and social care services.

4.2.       Increased access to justice for complainants. We deliver a higher volume of investigations and are ambitious to do more. Between April and December 2013, we received 14,111 enquiries about healthcare complaints and completed 904 investigations. This compares with 13,110 and 232 respectively in the previous year. We have therefore completed four times as many investigations in this financial year. We aim to deliver around 5,000 investigations in 2014-15.

4.3.       Previously, we investigated about 400 complaints a year. As part of our new approach to investigations, we have lowered our threshold so we now accept more cases for investigation. As long as there is an indication of injustice, maladministration or service failure, and an indication that the injustice has not been remedied by the service provider, we will investigate. The number of cases we accept is very similar to the proportion accepted by the Local Government Ombudsman, who cover social care complaints.

4.4.       Better use of insight from complaints to help Parliament hold the health service to account for delivering changes they have promised as a result of complaints. When we investigate complaints, we seek to draw out recommendations in order to maximise system‑wide change, as illustrated by these examples:

•         Diagnosis and management of sepsis: Our report highlighted ten cases where patients with severe sepsis did not receive the treatment they urgently needed. We worked closely with NHS England, the UK Sepsis Trust, the Royal College of Physicians, the Royal College of Surgeons, and the College of Emergency Medicine to develop a series of policy solutions. The National Institute for Health and Care Excellence has since agreed to develop clinical guidance in this area. According to the UK Sepsis Trust, if our recommendations are implemented, 12,500 lives a year could be saved (PHSO, September 2013).

•         Changes to midwifery regulation: Our report found that midwifery supervision and regulatory arrangements at the local level failed to identify poor midwifery practice. Our casework highlighted a potential muddling of the supervisory and regulatory roles of Supervisors of Midwives. Working with the Nursing and Midwifery Council, the Professional Standards Authority and others, we identified principles to inform proposals to change the system of midwifery regulation. The Nursing and Midwifery Council have since acknowledged a ‘structural flaw’ in the framework for midwifery regulation and initiated an immediate review (PHSO, December 2013).

•         Learning disabilities: Our report looked at the experience of six people with learning disabilities who died between 2003 and 2005 in circumstances that Mencap alleged amounted to institutional discrimination. Out of concern that similar failures could occur again, we made a number of system‑wide recommendations about the effectiveness, capacity and capability of services, to help health and social care organisations to respond to the needs of people with learning disabilities. We also put specific recommendations to the Department of Health and to the Care Quality Commission to encourage more effective monitoring and assurance mechanisms to be put in place (PHSO, March 2009).

•         Integration of health and social care: Our most recent joint report with the Local Government Ombudsman made system‑wide recommendations following a council’s failure to provide the appropriate care for an individual who had multiple debilitating illnesses and required timely supported accommodation. Recommendations included reviewing joint policies, training for front‑line staff and a review of multiagency safeguarding procedures (PHSO and LGO, February 2014).

•         Building on Listening and Learning: (PHSO and LGO, November 2012), we will continue to publish regular information about the complaints we receive. For example, in July we will publish case summaries from a sample of our casework. This will give the public a greater insight into the work that we do, and will also improve accountability and transparency between providers.

4.5.       Better use of insight to inform learning is in itself a system‑wide issue. For example, the Committee might want to consider holding a hearing one year after our report on sepsis. We want to be able to support Parliament actively to hold the Government and public services to account. The Committee therefore might want to consider how it can best use the publication of our reports to help shape its work programme.

4.6.       Seeking legislative reform to improve the service we can provide to users of health and social care services. After the recent Public Administration Select Committee inquiry, Oliver Letwin MP initiated a review. As part of our contribution to the review, we have argued for ombudsman reform to seek some very specific changes to enable us to deliver a service that is better for citizens and for Parliament, and that delivers better value for money for the tax payer.

4.7.       Key aspects of a transformed approach would include the following:

•         Establishing a single public services and health ombudsman. As both the NHS and local government provide elements of a health and social care ombudsman service, the citizen is left confused about the right ombudsman to turn to if things go wrong. Provisions allowing us and the Local Government Ombudsman to carry out joint investigations have been useful, but do not provide a long‑term solution. Much better for the citizen would be the knowledge that a single ombudsman service would help them.

•         Ending the limits on us undertaking an investigation where there is an ‘alternative legal remedy’. Our legislation stops us from looking at a complaint where there is, or was, an alternative legal remedy unless we think it would be unreasonable to expect the person bringing the complaint to resort to, or have resorted, to it. Although we use our discretion in our interpretation of the present legislation, removing any statutory restrictions when there is a legal remedy or ongoing legal proceedings may provide a better solution and contribute to complaints’ experiences in a more positive way.

•         Being granted the powers to conduct investigations on our ‘own initiative’ when there is evidence of repeated mistakes or a systemic issue. Removing the need to receive a specific individual complaint before launching an investigation would allow the Ombudsman to catch service failures early. It would enable us to extend access to justice to those least likely to complain, to make better use of intelligence from other sources (such as the advice and advocacy sectors) and respond to early signs of problems, maximising our preventative (and not merely reactive) role.

•         Enabling the public to make complaints to us through any channel. Currently, people have to put complaints to us in writing; however, we would welcome legislation consistent with the digital age and the ability to make complaints over the telephone.

•         Exploring further with the Department of Health any future role for the Ombudsman in relation to providing a service for those who wish to complain about private healthcare (Department of Health, 2014b).

•         Our role is to help Parliament hold the NHS to account. Therefore, our focus is on using our expertise and the learning from our cases to drive improvements, not only at a local level but across the NHS. Establishing a local service ombudsman would risk inconsistency of service to citizens and not deliver value for money in terms of economies of scale. We would be very willing, however, to explore ways of making our service more accessible locally via, for example, helplines and local access points and to explore this with the Committee further.

31 March 2014

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