Complaints and Raising Concerns - Health Contents

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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© Parliamentary copyright 2015
Prepared 23 January 2015