Time for a People's Ombudsman Service - Public Administration Committee Contents


2  Perfecting the performance of PHSO

7. PHSO's strategy for 2013-18, More impact for more people, published in November 2013, sets out a high-level vision for the office of PHSO:

    We want complaints to make a difference and help to improve public services for everyone.[7]

8. PHSO's operations are prescribed by its governing legislation. Complaints made by members of the public to the PHSO must be directed through a Member of Parliament, unless it is an NHS-related complaint, and the complainant must first have put their grievance to the department or public body concerned to allow officials to respond before PHSO can take the matter further. PHSO cannot investigate an issue unless there has been a complaint. Subject to this, it has statutory discretion to consider cases as it sees fit. PHSO has sole accountability for the decisions made, subject to judicial review.The office holder also has powers analogous to the powers of a judge of the High Court, namelythe right to summon persons and papers, (i.e. to require the attendance of witnesses and to have access to information), and absolute privilege to protect his or her reports.[8]

Enquiries and investigations: recent performance

9. In 2012-13 PHSO received 26,961 enquiries, a 13% increase on the number of enquiries made in the previous year. 16,431 enquiries were about the NHS; 7,811 were about central government departments and organisations; and 2,809 were about organisations outside the jurisdiction of PHSO, such as local authorities, devolved governments, or non-governmental organisations such as privatised utilities.

10. Not all of the enquiries made were requests for PHSO to investigate a complaint.26,358 enquiries were resolved, meaning that a decision was made about how to handle the enquiry:

·  3,285 were advised about where to complain;

·  5,562 were advised about how to complain to the NHS and government organisations; and

·  12,622 were advised about how to complain to PHSO, including advice on getting a complaint referred by an MP.[9]

11. 4,889 enquiries were "looked at closely", resulting in formal investigations in 467 cases. Of the remaining enquiries that were looked at closely, 508 were resolved without the need for a formal investigation, and in 3,914 cases PHSO concluded that there was no further action to take.[10]

12. Based on PHSO's customer survey in 2012-13, of those who made an enquiry to PHSO, 73% were satisfied with the service provided. 92% of customers whose complaints were investigated were satisfied with the service provided. PHSO noted that the final adjudication—whether or not a complaint is upheld—"has a significant impact on their satisfaction levels". Nevertheless, 57% of those whose complaints were investigated but not upheld were satisfied with the service.[11]

"MORE INVESTIGATIONS FOR MORE PEOPLE"

13. The main criticism we heard from a number of individual complainants was about the decision taken by PHSO not to investigate complaints. One, for example, suggestedthat:

    PHSO consistently identify malpractice in fewer than 2% of the total number of cases presented. Therefore 98% of complainants do not receive remedy and feedback to organisations is reduced accordingly.[12]

14. PHSO has statutory discretion to consider cases as it sees fit, the office is not obliged to investigate every complaint. The potential impact of PHSO's decision not to investigate a complaint has recently been demonstrated in the now notorious Morecambe Bay case. Mr James Titcombe made several complaints against the University Hospitals of Morecambe Bay NHS Foundation Trust, following the death of his baby in November 2008. Mr Titcombe's complaints related to the investigation into his baby's death and the way staff treated him and his wife. He took these complaints to PHSO in 2010, but they were not investigated. PHSO subsequently investigated and published a report in February 2014, upholding three out of four of the complaints made. That report explains that in 2010 the then Ombudsman declined to investigate Mr Titcombe's first complaint, but that the current PHSO decided to investigate outstanding elements of the complaint "in the light of new evidence from the coroner's inquest". With regard to the original decision, taken in 2010, the report said:

    Although the decision made at the time was lawful, with the benefit of feedback from the complainant and others, it is not a decision that we would make today. We recognise that had we investigated, this family might have had answers to some of their questions regarding what happened to their baby sooner than they did. We are sorry for the impact that has had on the Father and his family.[13]

15. As part of PHSO's strategy for 2013-18 Dame Julie Mellor, the current PHSO,stated that her office will investigate more complaints. She told us that:

    In 2014-15 we expect to have the capacity to investigate and resolve 4,000 cases, with a view to resolving even more in the longer term.[14]

The reasons for this were explained in PHSO's 2012-13 Annual Report:

    Previously, we did a lot of preliminary work on complaints before deciding whether or not to carry out a full investigation. If we decided not to investigate a complaint, we could still provide answers and explanations, but our decisions at this stage were not formal and final findings. Now under our new process, complaints that meet some basic criteria will usually be investigated straight away.[15]

16. This new approach is similar to that of other ombudsmen. Dr Alex Brenninkmeijer, the National Ombudsman of the Netherlands, told us during our visit to the Netherlands that an ombudsman should look at all complaints that fall within its competence. The Scottish Public Services Ombudsman, Jim Martin, told us that:

    we will investigate everything that is fit for my office to look at. If something is out of jurisdiction, we will not do that, and if something comes to us prematurely, we will not do that, but everything else will get some form of investigation.[16]

17. Dame Julie Mellor explained the change to us, stating that the lower threshold for taking on cases means "the assessment process is a lot, lot shorter", but that the criteria for deciding whether to investigate are the same; if someone has experienced injustice, is this due to maladministration or service failure, and is the injustice unremedied. She explained that:

    Historically, we took what is called a merit­based approach, apparently, which is [that] we set a very high hurdle, and so we did not investigate unless there was considerable evidence that those criteria were met. Therefore, it was pretty likely that we were going to uphold cases if we took them on for investigation, hence our uphold rate of 86% historically.[17]

18. PHSO said that 576 cases were taken on for investigation in the first quarter of 2013-14: more than the service took on in the whole of the previous year.[18] Since April 2013, 2,688 cases had been acceptedfor investigation compared to 352 the year before.[19]In further evidence, PHSO provided us with a comparison of the months April to November in 2012 and 2013. This showed that:

·  in April to November 2012, 313 complaints were passed on from the assessment stage to investigation stage;

·  in April to November 2013, 2,436 complaints were passed on to the investigation stage;and

·  of those passed to the investigation stage between April and November 2013, 869 had been completed by December 2013.[20]

19. Professor Brian Thompson, Senior Lecturer, School of Law, University of Liverpool, said in respect of the decision to investigate more cases that:

    I would like to know how she is doing it. It has been announced; the methodology of this has not been explained. I would welcome it. I think perhaps there were not enough investigations being carried out, but we will just have to wait and see.[21]

20. Dame Julie Mellor told us that to achieve this change, staff have been redeployed to focus on investigations. This was in contrast to other organisations who, for example, recruited extra staff to deal with changes in caseload. Tony Boorman, acting Chief Ombudsman, Financial Ombudsman Service, told us that, due to a rise in PPI claims, he had "needed to recruit 2,000 additional staff", which had doubled the size of his organisation.[22] He also told us his concerns about forecasting the number of complaints a service might need, or be able, to deal with:

    I think there is an issue here, as our experience shows, that when you turn the focus on accessibility for individual customers, in this case for individual citizens, it is very difficult to forecast the volume impact that will have. Often, events which may be unconnected to your own personal experience, and Mid Staffs is a great example of that, will generate a real set of concerns and encourage people to make complaints they probably should have made in the first place. When people turn on a more individually-tailored complaints-handling system, they need to be aware of the potential pent-up demand that exists.[23]

21. The Public and Commercial Services (PCS) Union, which represents employees in the Civil Service and government agencies, expressed its concern about the roll out of this new strategy. It told us that the shift towards investigating more complaints was welcomed by their members but that they had raised questions about how the service would cope in light of "a reduced budget, decreasing staff numbers, and the hugely increased workload". PCS told us that concerns were raised about the possibility of an increased backlog of work and that this had proved to have happened, with "470 complaints awaiting initial processing, plus 443 in the investigation queue" by mid to late October 2013.[24]

22. PASC received a significant amount of correspondence from individuals who were dissatisfied that the Parliamentary and Health Service Ombudsman had declined to investigate their complaint. We welcome the decision taken by the Parliamentary and Health Service Ombudsman to investigate more complaints as a way to remedy such concerns.

23. The Parliamentary and Health Service Ombudsman must be explicit in how the decision to investigate more cases is being achieved, to demonstrate that it represents a significant change in the quality of investigations and upheld complaints and that it is a much more substantial shift than a re-classification of current workloads.

The investigation process

24. In response to PHSO'snew strategy to investigate more complaints, one member of the public said:

    PHSO should certainly not be attempting to take on more complaints unless it is able and willing to investigate them properly, rather than finding excuses to dismiss them.[25]

REACHING A DECISION

25. Several individuals made reference to the way that PHSO handled their complaint, particularly in respect of how their evidence was treated compared to the evidence presented by the service about which the individual was complaining. Some felt that the handling of their investigation had been poor. One individual told us that:

    PHSO's operation is completely opaque: it did not tell me what evidence it had received, considered, or rejected, or give a rationale for its decisions. PHSO seems determined to minimise contact with complainants.[26]

26. One couple referred to the handling of evidence in their investigation and subsequent request for an internal review. In their case, they raised concerns about the evidence submitted by the NHS Trust they were complaining about:

    We had made a Freedom of Information request for the set of medical records the Trust had supplied to the Ombudsman. [...] When we checked them against our own set we found the Ombudsman had more than 100 records missing. The records were missing at every point where the Trust could have been accused of neglect.[27]

They then provided the PHSO investigator with records that PHSO did not appear to have, but found that in the final draft of PHSO's report, those records had still not been taken into account.They suggested PHSO should have known about the records "if they had read our complaint letters with due attention".[28]

27. Dame Julie Mellor told us that complainants receive an investigation report that "gives them that rigorous account of what happened".[29] In providing a complainant with an explanation and justification for thesubsequent decision taken on a complaint, PHSO said:

    We explain our findings and how we have reached them by setting out in the report the evidence we have relied on or which has influenced us in reaching our conclusions. We explain what that evidence said or showed, and how that led us to reach the conclusions we have reached.In health complaints, we usually also share with the complainant the clinical advice we have received. Before we reach our final decision we share our draft investigation reports to give the parties an opportunity to let us know if we have misunderstood, or failed to consider anything relevant to the complaint. In addition, even though it will be set out in the report, if a complainant asks to see the evidence we have relied on or which has influenced us in our decision-making, we will supply them with copies of the original documentation.[30]

REVIEWING A DECISION

28. To challenge a decision made by PHSO, an individual must first submit a formal request for an internal review within three months of the decision being made. Grounds for seeking a review should be based on whether there are new material facts or factual inaccuracies or whether PHSO has "overlooked or ignored parts of the complaint that could change the decision".[31]PHSO can decide not to review its original decision. If a review is carried out, PHSO does not re-examine the original complaint, but reviews the relevant evidence to ensure it was all taken into account. This is the final stage of the PHSO internal complaints process. If an individual still does not agree with the final decision of PHSO, they can make an application to the High Court forjudicial review.

29. In 2012-13 PHSO received 1,004 complaints about the service it had provided or about a decision that had been taken on a complaint. 61 complaints about the service that PHSO had provided were upheld or partly upheld. 979 complaints about decisions that had been taken on a complaint were looked at. 103 of these were upheld, and resulted in action being taken by PHSO that included:

    apologising, giving a better explanation of our decisions and in some cases agreeing to look again at our original decision.[32]

In 2012-13, four applications for judicial review were made. All were refused.[33]

30. Members of the publiccommented on how hard they feel it is to challenge a decision.Some were unhappy about PHSO's internal review process because it only looks at the method of the decision, but excludes reconsideration of the decision itself.One individual, for example, said that:

    Customers can ask for a review of decisions, but the review is [of] the system used, not the decision itself. Why tell people they can have a review when that does not happen.[34]

Some complained that the process of judicial review is unsatisfactory, because, as one told us, no-one had ever won a judicial review case against PHSO. One individual felt it was "encouraging people to spend their money [...] with PHSO knowing people will not win".[35] Another felt that judicial review was "not an appropriate mechanism to redress this imbalance" as it was too costly.[36] Another complainant echoed this:

    I tried to use judicial review, but the HSO's response to this is to out-source the legal work to solicitors and then threaten the appellant (me) with heavy expenses unless the claim is withdrawn[...] I found the financial risk too great.[37]

31. We were told that complainants receive a detailed account of the reasons underpinning decisions taken by the Parliamentary and Health Service Ombudsman (PHSO) in respect of their complaint. Nevertheless some complainants told us they do not feel all the evidence available in their complaint was taken into account, and evidence was not treated equally. We recognise that not all complainants may feel this way, but PHSO should review the transparency of its ownarrangements for reviewing its decisions.

32. When explaining to complainants the findings of an investigation and how decisions have been reached, the Parliamentary and Health Ombudsman (PHSO) sets out the evidence that has been relied on or which has influenced investigators in reaching their conclusions. In addition, PHSO should make clear what evidence it received and considered as part of that investigation, and if necessary, what evidence was not used to form the conclusion, and why.


7   Parliamentary and Health Service Ombudsman, More impact for more people.Our Strategy 2013-2018 (November 2013), p3 Back

8   The Ombudsman - the developing role in the UK, Standard Note SN/PC/04832, House of Commons Library, November 2012, p3 Back

9   Parliamentary and Health Service Ombudsman, Aiming for Impact. The Ombudsman's Annual Report and Accounts 2012-13(July 2013), p18 Back

10   Parliamentary and Health Service Ombudsman, Aiming for Impact. The Ombudsman's Annual Report and Accounts 2012-13(July 2013), p18 Back

11   Parliamentary and Health Service Ombudsman (PHS40) Back

12   Della Reynolds (PHS19) Back

13   Parliamentary and Health Service Ombudsman, Four investigation reports concerningthe University Hospitals of Morecambe Bay NHS Foundation Trust (February 2014) HC 1096, p4 Back

14   Parliamentary and Health Service Ombudsman (PHS48). Please note that the published written evidence says "2013-14", however we were notified by PHSO that this was an error, and should read "2014-15". Back

15   Parliamentary and Health Service Ombudsman, Aiming for Impact. The Ombudsman's Annual Report and Accounts 2012-13(July 2013) p20 Back

16   Q72 Back

17   Q168 Back

18   Parliamentary and Health Service Ombudsman (PHS48) Back

19   Parliamentary and Health Service Ombudsman, More cases being investigated than ever before, accessed February 2014 Back

20   Parliamentary and Health Service Ombudsman (PHS48) Back

21   Q8 Back

22   Q127 Back

23   Q128 Back

24   Public and Commercial Services Union (PHS49) Back

25   Tim Bartlett (PHS26) Back

26   As above Back

27   Margaret and Janet Brooks (PHS09) Back

28   As above Back

29   Q174 Back

30   Parliamentary and Health Service Ombudsman (PHS57) Back

31   Q189 Back

32   Parliamentary and Health Service Ombudsman, Aiming for Impact. The Ombudsman's Annual Report and Accounts 2012-13(July 2013), p16 Back

33   As above Back

34   Brenda Prentice (PHS01) Back

35   As above Back

36   Della Reynolds (PHS19) Back

37   D R Tweedie (PHS02) Back


 
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Prepared 28 April 2014