Work of the Ombudsman

Written evidence submitted by James Titcombe (PHSO 10)

Summary

I first became involved with the Parliamentary and Health Service Ombudsman (PHSO) in early 2009, following the preventable death of my son due to failures in his care at Furness General Hospital (FGH) in November 2008.

I understand that the PASC is unable to examine the individual circumstances of our case, but I wish to draw your attention to some specific issues which should be considered as evidence relating to the general administration, operation and functioning of the PHSO in the context of the committee hearing.

Part 1 -The process followed by the Ombudsman prior to refusing to investigate Joshua's case and the refusal of the PHSO to properly deal with my subsequent complaints in relation to this. Serious discrepancies between statements made by the Ombudsman's office and the clear documentary evidence available regarding what actually happened. I will set out why I believe that the Ombudsman's own complaints handling process falls seriously short of the standards and values it promotes for NHS bodies.

Part 2 - The lack of transparency or clear terms of reference in relation to the Baroness Fritchie review. I was initially told by Dame Julie that she was commissioning a 'piece of work' specifically to learn lessons from the handling of our case. I will explain why I have concerns about the process and objectivity of this work and that I have been refused the opportunity to meet with Baroness Fritchie, or indeed the opportunity to submit evidence for consideration as part of this work.


Part 3 - The separate complaint I made in relation to the North West Strategic Health Authority (NWSHA). This complaint was initially refused for investigation and subsequently this decision was upheld by the review. Subsequent to this however, I started legal proceedings against the PHSO and wrote a 'letter before claim'. This resulted in the Ombudsman re-reviewing their decision. The second review concluded that the reasons given for refusing to investigate 'did not stand up to scrutiny'. The complaint is now being formally investigated along with three other similar complaints about the NWSHA in respect of perinatal and maternal deaths at Furness General Hospital (FGH). My submission will explain why I am concerned that this experience may indicate more widespread failures of practice within the PHSO decision making process that remain hidden, with potentially very serious implications. I will set out my submission as concisely as possible, referring to other documents for more detailed information.

References

I have included the following documents for reference with this submission:

A. ‘Ombudsman dishonesty.pdf’ – Extracts of letters and emails from the PHSO relating to conversations between Cynthia Bower and Ann Abraham that appear to contradict.

B. ‘UHMBT Failure – The role of the CQC and Ombudsman.pdf’ – Detailed evidence and commentary in support of this submission.

C. ‘Letter from Dame Julie 22 June 2012.pdf’

D. ‘Dame Julie 9th Nov 2012.pdf’

E. ‘Ombudsman Second External Review – April 2012.pdf’

Part 1. - The PHSO involvement in my complaint about my son's death.

1. I wrote to the PHSO in early 2009, requesting an investigation into the circumstances of my son's death, due to failures in his care at Furness General Hospital (FGH) in November 2008.

2. After a protracted period of 'consideration', the PHSO wrote to me in February 2010 confirming that they would not be carrying out an investigation into my son's death. The following two primary reasons were given.

3. "As you know, despite thorough searches, the records for the first 24 hours of Joshua’s life are still missing. The staff involved had been interviewed on more than one occasion. It is unlikely that they would now change their accounts of the events and for this reason, in the absence of records, a further investigation is not likely to reach a firm finding of what took place and why".

4. " One of our concerns has been to make sure that the CQC was fully aware of the issues arising from Joshua’s death and was actively overseeing the work of the Trust on its action plan. The CQC does indeed have the Trust closely under review and is looking to see positive outcomes from the action plan before its concerns will be reduced."

5. The turn of events following the PHSO decision not to investigate Joshua's case is now a matter of public record and has been extensively reported in the national media, most recently in the Panorama film 'How safe is your hospital' broadcast on 3rd December 2012. In summary, just two months after the PHSO decided not to investigate Joshua's case, the Care Quality Commission (CQC) registered Morecambe Bay Health Trust 'without conditions'. Subsequent reports state that 'significant risks' to mothers and babies at FGH continued into late 2011, when eventually, following an inquest into Joshua's death, the Coroner issued a rule 43 letter and Monitor and CQC took drastic actions. See.

http://www.independent.co.uk/news/uk/home-news/watchdog-waited-two-years-to-act-over-failing-maternity-units-7985986.html

6. Following this very sad turn of events at FGH maternity unit, I have sought to understand more regarding the regulatory failures that led to such serious risks being unaddressed for so long. In early 2012, I made DPA subject access requests to CQC, Monitor, Morecambe Bay Trust and the PHSO for all information relating to Joshua's case.

7. Over the last few months, I have carefully reviewed the information provided and this has led to very serious concerns which I have attempted to raise appropriately with the bodies involved. The most serious issues include the following.

8. Information from the PHSO which demonstrates the depth of concern of senior PHSO officers prior to the refusal to investigation Joshua's case. These include the following statements made within the PHSO case files.

9.‘We already have a significant amount of information to suggest that the Trust did not follow the usual procedures following Joshua’s death and that they did not achieve a clear view of what had happened as a result’ – Kathryn Hudson (Deputy Ombudsman).

10.‘I am concerned that this case may be demonstrative of a service failing with the Trust’. – (PHSO caseworker)

11. ‘Given the Trust’s apparent failure to handle Mr Titcombe’s complaint in a

satisfactory manner, he has not been provided with a reasonable response to his concerns about events surrounding his son’s death.’- (PHSO caseworker)

12. Information obtained from the Trust which raises serious concerns that inappropriate collaboration took place between Tony Halsall, the former Chief Executive of Morecambe Bay and CQC. This includes an email dated 2nd June 2009, in which Tony Halsall writes to Eddie Kane (the former Chair of the Trust) as follows.

If I’m correct then the CQC can cover off the Ombudsman in their response if

they are prepared to have that conversation with them which they didn’t indicate

they were not’.

13. The above email led to me having concerns that the CQC may have influenced the Ombudsman inappropriately to bring about a decision not to investigate my son's death. I raised this directly with the Ombudsman but I was reassured that this was not the case.

14. However, when I subsequently obtained information from the PHSO in response to my subject access request, clear evidence was obtained suggesting that indeed such inappropriate conversations took place at the highest levels of both the CQC and the PHSO. This evidence included the following.

15. A memo from Kathryn Hudson to Ann Abraham dated 10th September 2009

(attached), which stated 'In your conversation with Cynthia Bower shortly before your leave, the suggestion arose that if we could assure Mr and Mrs Titcombe that as a result of their experience CQC are now taking robust action to ensure improvements in the quality of maternity services in the Trust, you might decide not to investigate'.

16. Given that no documented record of any conversation between Cynthia Bower and Ann Abraham existed in the case records, and given the significance of the conversation which the memo from Kathryn Hudson clearly demonstrates took place, I sought an explanation from the PHSO about the matter.

17. On 17th August 2012, the Ombudsman's office wrote to me as follows.

'We have told you that the conversation was brief and merely served as a way to establish a contact for Kathryn Hudson. There is no record of the conversation other than in Kathryn Hudson’s minute and so we cannot provide any further details about it. Again, I appreciate you think that the conversation must have been more detailed and significant than described, but it was not.'

18. However, contrary to this assertion, once I received the information requested under the DPA from the CQC, yet more records referring to a detailed conversation between Cynthia Bower and Ann Abraham relating to Joshua's case emerged. These included the following.

19. An email from Kathryn Hudson to Amanda Sherlock (CQC) dated 4th September 2009, which states the following.

'My understanding from Ann was that she had discussed this very sad case with Cynthia in order to consider the best way of handling it. We have not yet made a decision on whether to accept it for investigation and are aware of your interest and that of Monitor. I had thought that Cynthia had suggested there might be a better way to deal with the issues involved through other assessments of the quality of the Trust and the future of midwifery services in the North west'.

20. It should be noted that this email correspondence was not released to me by the PHSO, as I believe it should have been under my DPA subject access request.

21. I have included copies of the original documents relating to the above with this submission. Please refer to reference document A.

22. From reviewing the clear evidence available, it is hard to conclude any other than that Cynthia Bower and Ann Abraham met and discussed the circumstances of my son's death in detail.

23. The emphasise of these discussions, from the records available, shows that Cynthia Bower had suggested that the PHSO would not investigate Joshua's case.

24. This is consistent with the opinion of the Chief Executive of Morecambe Bay, expressed in his email to the Trust's Chair on 2nd June 2009 (see paragraph 12).

25. I have detailed these concerns to the PHSO and have repeatedly asked for a second external review of the circumstances leading up the decision taken by Ann Abraham in February 2010, not to investigate Joshua's case.

26. All requests have been refused and the position of the PHSO remains that the conversation between Cynthia Bower and Ann Abraham was merely to 'establish a contact for Kathryn Hudson'.

27. The PHSO have subsequently emailed me confirming that they will not respond to my detailed letters about this issue and are refusing to discuss the concerns with me further.

28. I am concerned that the facts outlined above demonstrate that the PHSO does not operate openly and transparently and does not take responsibility or accountability for the actions it takes.

29. The response to my complaints to the PHSO relating to these issues does not appear to be consistent with the principles of good complaint handling which the PHSO advocates that NHS bodies themselves should adopt.

30. It is very serious because further preventable deaths took place following the refusal of PHSO to investigate the death of Joshua.

31. It is arguable therefore that lives would have been saved had PHSO acted in accordance with the concerns expressed within their organisation that appear to have been overruled.

32. I have recently met with David Behan, the Chief Executive of the CQC, whom I reviewed this evidence with in person. Mr Behan expressed great concern and sympathy regarding the evidence provided and has subsequently confirmed he has widened the remit of an ongoing investigation into CQC’s involvement in Morecambe Bay to include these issues.

33. This demonstrates that other organisations are taking the issues seriously yet the approach from the PHSO could not be more different.

Part 2. - The review being carried out by Baroness Fritchie

34. Following correspondence between myself and Stephen Dorrell MP relating to the circumstances described in this submission, Dame Julie wrote to me on 22nd June 2012.

35. I have provided this correspondence as part of this submission. Please refer to reference document C.

36. In this letter, Dame Julie accepted that the circumstances surrounding Joshua's case were ‘unsatisfactory’; particularly that the interventions at the Trust were undertook as a result of the Coroner's inquest some years later, rather than through a PHSO investigation.

37. This letter stated 'I am commissioning an external piece of work that will consider the lessons learned from our handling of your complaint'.

38. However, the letter went on to state that Dame Julie would not allow an external review of the decision not to investigate Joshua's case and described the decision made as 'reasonable'.

39. I was unhappy that from this letter, it appeared that the proposed piece of work would hold the fact that the decision taken in relation to Joshua's case was 'reasonable' as a pre determined conclusion. I felt that the terms of reference for the review were unclear and I raised these concerns with the PHSO and stated that I did not want to be associated with the piece of work unless the terms of reference were made clear. I expressed that such a review could only be meaningful if the conclusions and recommendations were made following an independent review of the evidence, not before.

40. In the subsequent months, I continued along with another complainant (Dee Speers), to seek to clarify the terms of reference of the review. During this time, the terms of reference seem to have evolved from the description of the proposed piece of work outlined to me in Dame Julie's letter of 22nd June, to now involving a review of '100 cases' concerning cases of potentially avoidable death in the NHS. Please refer to reference document D.

41. Furthermore, my requests to meet with Baroness Fritchie to go over the concerns expressed in this submission, have been refused. I have not been permitted to submit evidence for consideration of the review and I understand that no one involved in the review has been invited to submit evidence for consideration.

42. It is therefore not possible in my view to regard the Baroness Fritchie investigation commissioned by Dame Julie as being a valid piece of work with the genuine intention of considering 'the lessons learned’ from the Ombudsman’s handling of our case; rather I see the review as being a way for the PHSO to appear proactive in light of likely criticism from Robert Francis and in light of the previous failure of the Ombudsman to implement the clear recommendations of the Health Select Committee report made by Stephen Dorrell MP last year.

43. I am concerned that the external work being carried out by Baroness Fritchie appears to have been carefully designed to ensure that the detailed evidence available in relation to our case is not available and therefore cannot properly be considered as part of an open and objective review.

Part 3. - My complaint to the PHSO in relation to the North West Strategic Health Authority (NWSHA).

44. Please refer to the document 'Ombudsman Second External Review - April 2012', reference document E.

45. This document details the circumstances relating to my complaint about the NWSHA in relation to my son's death in a very clear, accurate and concise way. I will therefore not repeat this detail in the main body of this submission but refer the committee to this document for the background information.

46. Subsequent to the second external review by , the PHSO reconsidered my complaint and have since opened a full investigation of my concerns which is being carried out in conjunction with similar complaints made by three other families relating to infant and maternal deaths at FGH.

47. In summary, my complaint relating to the NWSHA was dismissed by the Ombudsman and their first review supported this decision.

48. However, following the start of legal proceedings against the Ombudsman, a decision was made to have a second external review.

49. This second external review was highly critical of the initial decision made and concluded that the reasons given for not investigating 'did not stand up to scrutiny'.

50. It is my opinion that these circumstances raise very serious questions about the objectivity of the PHSO decision process and the objectivity of the PHSO review process.

51. I am concerned that other decisions made in relation to other cases may also fail to 'stand up to scrutiny'.

52. I am concerned that the first external review, which was carried out with full access to exactly the same information as that made available to , reached such different conclusions regarding the decision made.

53. I am concerned that the circumstances exposed by this review, may be demonstrative of more widespread process failures in the PHSO decision making process that remain hidden because of the rarity of the sort of scrutiny carried out by and that this has very serious implications.

54. I believe there is an urgent requirement to introduce sample audits of PHSO decisions and reviews to ensure such process failures are not more widespread.

54. I therefore have no confidence in PHSO and feel that their failings warrant further, proper, independent investigation. My family's attempts to discover the truth about my son's preventable death have been hindered and obstructed by PHSO, making it more difficult for us to move on and come to terms with our loss.

55. I believe that the current framework and operation of the PHSO allows avoidable deaths in the NHS to go without proper investigation. I feel that this represents a fundamental flaw in the current NHS two tier complaints system that must be urgently addressed if situations like Morecambe Bay are to be avoided in the future

December 2012

Prepared 14th December 2012