3 The second stage: the Health Service
Ombudsman
73. The Health Service Ombudsman acts as the second
stage in the complaints process, reviewing complaints which have
not been resolved by complaint to the provider or commissioner.
74. When we looked at the role of the Ombudsman in
2011, we reported on three areas of concern:
· That
very few complaints were formally investigated at this second
stage (although a considerably larger number were 'informally'
examined);
· That
a significant number of cases were not further examined because
there was essentially no prospect of the Ombudsman being able
to come to a conclusion, these often being described as cases
on which there was likely to be "no worthwhile outcome",
an unfortunate phrase that caused considerable distress and anger
· That
many people approached the Ombudsman's office thinking it provided
a general appeal mechanism but the legal framework under which
it operated gave it a narrower focus which those looking for redress
found frustrating.[40]
75. Some of these Committee concerns about the Ombudsman
have been addressed:
· The
phrase 'no worthwhile outcome' is no longer used
· There
has been a change in the threshold used for acceptance of complaints[41]
· The
Ombudsman is now accepting more complaints for investigation than
hitherto, with a fourfold increase in investigations in the current
year.[42]
76. These developments were commented on by both
Anna Bradley of Healthwatch England and Robert Francis. Anna Bradley
said that
One of the very good news stories from the consumer
and user perspective is that the Ombudsman is very clearly committed
to investigating a much larger number of complaints that come
their way, and that is very helpful. [43]
Robert Francis said that "my impression is that
there is less effort put into finding reasons not to investigate
the complaint when it comes to the Ombudsman".[44]
77. Ombudsman services are under review by Robert
Gordon CB, commissioned by Cabinet Office. Pending the outcome
of that review, the Ombudsman has put forward her own requests
for the reform of legislation. These include:
· Removal
of the requirement for complainants to make requests 'in writing'
· Removal
of the bar on accepting cases when alternative legal remedy available
· Introduction
of own-initiative investigation power
· The
creation of a single public services ombudsman, combining the
role of PHSO and LGO[45]
78. On that final point, the Ombudsman, together
with the Local Government Ombudsman and Healthwatch England, has
published a service-user led vision for complaints, My expectations
for raising concerns and complaints. This delivers on a commitment
made after the publication of the Francis report for these three
organisations to develop "a user-led 'vision' of the complaints
system."[46] Other
organisations have also committed to using the framework that
has been developed, including CQC in its inspection regime, and
NHS England, which will link it to its outcomes framework.
79. We welcome the work that has been done to
produce what is essentially a best practice guide to first-tier
complaints handling. There can be no excuse now for any health
or care organisation not to have an appropriate mechanism in place
to deal with concerns and complaints. It represents an important
first step towards an over-arching, single access-point complaints
system.
80. Despite the progress that we have noted here,
however, significant concerns remain about the Ombudsman's own
performance in assisting complainants to achieve redress. For
example, the PHSO Pressure Group told the Committee that it was
unhappy with the standard of investigation:
Whist we commend the Ombudsman for investigating
more cases and agree that complainants feel more satisfied if
their concerns have received a full investigation; we are concerned
about the quality of investigations and the delivery of factually
accurate reports. If key issues are overlooked then no action
is taken to prevent future harm to patients. In our experience
PHSO too often find in favour on minor issues and fail to uphold
significant breaches due to a failure to properly collect or evaluate
the evidence. Quality must not be sacrificed in order to achieve
high case turnover as this will lead to continued public dissatisfaction
and failure to properly hold NHS Trusts to account.[47]
81. Ann Clwyd was also critical of the historic situation
of few cases being formally investigated, as well as expressing
concerns about perceptions of independence:
I felt that a large number of complaints go to
the Ombudsman but very few are investigated. I think people felt
quite angry about that. To take it as far as the Ombudsman requires
a lot of effort, and if people find the Ombudsman is only dealing
with a small number, they feel angry and frustrated. The feeling
was that the Ombudsman was too far away from the action and that
it would be good to have a localtype Ombudsman in a region—not
only an Ombudsman based in London, but somebody that people could
feel they could relate to more easily...
Independence from the NHS is something people
felt very strongly about, and they did not feel, even though they
know the Ombudsman is independent from the NHS, that the system
was independent enough. It is quite a big organisation, and it
was felt that it should be looking at a larger number of complaints,
but also, basically, that it should be closer to the people making
the complaints.[48]
82. Perhaps most significantly, in November 2014
the Patients' Association announced that it would no longer be
able to recommend that complainants seek redress through the Ombudsman,
because of the poor quality of investigations and the consequent
distress to patients and their families. [49]
83. Katherine Murphy of the Patients Association
said that
We receive cases every week where people are
distressed and even traumatised by the way their case has been
mishandled by the PHSO.
The Health Ombudsman should be a court of last
resort where uncorrected mistakes by the NHS can finally be put
right, but the process is not fit for purpose and often ends up
compounding the grief of families. The quality, accuracy, objectivity,
effectives, openness and honesty of its reports is shameful.
The PHSO cost to the public purse is around £40
million a year, but we have no idea how it really does its job.
The total cost to society and families far exceeds the £40
million funding the Ombudsman receives. The emotional cost for
families far outweighs the huge financial cost...
We cannot expect Trusts in the NHS to handle
complaints appropriately if they are confident that the PHSO will
not find failings against them. Radical reform in complaints handling
is of paramount importance across the NHS and the PHSO.[50]
84. The PHSO issued a statement in response which
said that
Every time someone has a poor experience of our
service it really matters to us and we work hard to put things
right.
As announced last month, we've embarked on the
second part of our modernisation drive. We are engaging with complainants,
including some of the people mentioned in this report which features
seven cases, to help draw up a service charter - a set of promises
to users about what they can expect when they use our service.
We are pleased the Patients Association has agreed to be part
of this work.
We are committed to acting on feedback from users
of our service. The first part of our modernisation drive was
to investigate more cases. In 2013-14 we investigated six times
more complaints than in previous years (384 to 2199). We have
maintained satisfaction levels and halved the average time taken
to complete a case. We are modernising our service to provide
an even better service to the 27,000 complainants whose cases
we deal with every year.
85. The Parliamentary and Health Service Ombudsman,
Dame Julie Mellor, gave evidence to us before the Patients Association
published its report, but she did discuss with the Committee the
criticisms that were made about the PHSO not investigating adequately
on the basis of the evidence that complainants had provided.
Nearly all those cases were historical cases
where the organisation had declined to investigate the cases.
They never had an investigation report where they could look at
the draft and comment. What they got was a reason for the decision
not to investigate, which would include some reference to information
they had received from the service provider. I can quite understand
that it would feel as if that was biased information, and it is
part of why we changed. It is part of why we are making sure that
what they get is a formal investigation report that lays out the
evidence from the service provider and from the complainant, gives
our findings based on those facts and then gives an adjudication.
Again, I think it is a historical problem that is related to how
people felt about the letters they got saying we were declining
to investigate. It is different when we are investigating.[51]
86. The experiences of the families quoted in the
Patients Association report make for sobering reading. For a major
patient advocacy charity to no longer support the second stage
of the complaints system is a worrying development, and must result
in a thorough examination of the criticisms it has made. The progress
that is being made in increasing the numbers of investigations
and in modelling a better complaints system will count for nothing
if the public perception of the PHSO is that its investigations
take too long, require too much of those who are complaining and
do not provide appropriate redress at the end of the process.
87. The Ombudsman, appearing before the Public Administration
Select Committee (PASC) on 10 November 2014, acknowledged that
there are difficulties arising from being part way through a system
change and taking on substantially more cases.[52]
PASC has challenged Ombudsman on use of internal and external
review of cases and judgment. The Ombudsman accepted the need
to focus on the quality of their work. She said that they would
in future ask complainants to give feedback on quality of investigation
at the draft report stage.[53]
88. The accountability of the Ombudsman is important,
especially since decisions cannot be challenged save through judicial
review. The Ombudsman is accountable to the House through PASC,
which is given the task of examining reports of the Parliamentary
Commissioner for Administration and the Health Service Commissioner
for England: that Committee has undertaken to follow up issues
raised in Ombudsman reports, including on issues relating to the
health service.
89. It is clear that the Health Service Ombudsman
is going through a process of substantial change, with a welcome
increase in acceptance of complaints for investigation. We also
welcome the way in which the Ombudsman has addressed our previous
concerns about the functioning of her office.
90. Complainants expect investigations to be carried
out in a thorough, timely and accurate fashion, with all relevant
evidence properly assessed and fully taken into account and institutions
tackled robustly. While it is welcome that the Ombudsman has undertaken
to share draft findings with complainants and has allowed them
the opportunity to comment, we are concerned by reports about
the time taken to complete Ombudsman investigations, the quality
of initial investigations undertaken and the availability of medical
expertise to assess evidence.
91. The serious criticisms of the Ombudsman from
the Patients Association are of grave concern. We recommend that
an external audit mechanism be established to benchmark and assure
the quality of Ombudsman investigations. In her response to this
report we ask the Ombudsman to set out how her organisation is
seeking to address problems with its processes, and a timetable
for improvements.
40 Health Committee, Complaints and Litigation, paras
48 to 50 Back
41
CRC 91, para 4.3 Back
42
CRC 91, para 4.2 Back
43
Q33 Back
44
ibid Back
45
CRC 91, para 4.7 Back
46
My expectations, page 4 Back
47
CRC 92, section 8 Back
48
Q 14 Back
49
Parliamentary and Health Service OmbudsmanThe 'Peoples' Ombudsman - How it Failed us,
Patients Association, 18 November 2014 Back
50
Patients Association press release, 18 November 2014 Back
51
Q 256 Back
52
See for example, PASC, 10 November 2014, Q 61 Back
53
Ibid, Q 24 Back
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