PHSO Annual Scrutiny 2016–17 Contents

3PHSO’s performance in handling complaints

30.All the written evidence we received, except for the PHSO’s own submission, was from people and organisations who had complained to the PHSO and were in some way unhappy with the way their complaint had been handled. The Committee cannot examine individual cases. However, it does consider the examples of individual’s experiences it sees in choosing which elements of the PHSO’s performance to focus on in scrutiny. It may also examine reports on individual cases that the Ombudsman lays before Parliament.48

Timeliness of decisions

31.The excessive length of time taken to decide whether to investigate complaints, and then to carry out the investigation, was a common theme in the evidence to the Committee.49

32.Amanda Campbell accepted that, “over the last few years it has just taken too long to deal with complaints. We have not been consistently able to provide the quality of service that we would wish to”.50 The PHSO was responding to this through introducing new training for staff, including on communicating with complainants, and new processes that would reduce the number of “hand-offs” of complaints between different staff members.51 The average length of time taken to complete a full investigation of a complaint in 2016–17 had fallen to 234 days from 255 the previous year, with waiting time at each stage falling as well, as a result of these improvements,52 although Amanda Campbell stated that an average of over 200 days was still, “simply unacceptable”.53

33.Some of these issues were apparent in the investigation into the death of Averil Hart in December 2012.54 The Ombudsman’s final report was issued on 8 December 2017, three and a half years after the original complaint had been made to the PHSO. Mr Behrens accepted this was too long and he had apologised to Ms Hart’s family.55 He told us that the, “resourcing of the investigation lacked continuity” prior his taking up the post of Ombudsman in April 2017.56

34.We remain concerned at the length of time that PHSO investigations take to complete, not least because of the added distress this can cause to complainants. We are also clear that increasing the speed of investigations should not come at the cost of compromising their quality, and we therefore accept that delivering significant improvements may take some time. We note that, although the PHSO has said an average of 200 days is unacceptable, it has not defined what it thinks would be an acceptable benchmark.

35.The Committee recommends that the PHSO publishes what average length of investigation it is aiming for and by when it intends to achieve it. The Committee will investigate the specific issues raised by the report into Ms Hart’s death and the lessons to be learned, including from the failings in the investigation, at a later date.

Learning from mistakes

36.The Ombudsman paid compensation to 13 separate complainants in 2016–17 in relation to harm caused by the PHSO. This totalled £26,333, but £24,855 was in relation to legal costs on a single case.57 The 13 cases in 2016–17 were 0.3% of the 4,239 total decisions PHSO made.58 Amanda Campbell stressed that the PHSO had recently introduced a “learning and feedback model” that seeks to capture learning from complaints and asks: “Are we doing things wrong systematically? Is it because those are failing in process, is it a failing in training or is it that an individual person or team needs to have more support?”.59

37.Given the nature of the PHSO’s work, and the number of complaints that it handles, it is inevitable that mistakes will be made, or the service provided to some complainants will slip below the standards the PHSO sets itself. However, these should be minimised, and the need to pay compensation rare. Complainants to the PHSO are already, by definition, dissatisfied with their treatment by the public sector so it is imperative the PHSO seeks to avoid causing further distress and further undermining public confidence in public services. We therefore welcome the approach to learning and feedback that is being implemented. We expect the PHSO to be able to provide evidence in the future of the improvements that have resulted. We also recommend that in future the PHSO publishes in its annual report how many times it has offered compensation as part of its wider commitment to transparency.

Correcting mistakes

38.The Ombudsman’s ability, and willingness, to correct mistakes in his reports, or add to them where an investigation has been based on incomplete or incorrect information was raised in the written evidence by the Brooks family.60 In cases where issues with an original report are not minor drafting errors the PHSO’s normal policy is to open a new investigation, and issue a further or supplementary report with new findings.61 However, it had been previous Ombudsmans’ understanding that they did not obviously have the power, on their own initiative, to formally quash a report once it had been made.62 Instead a complainant would need to seek a judicial review of the Ombudsman’s decision.

39.The Brooks family had asked the previous Ombudsman to withdraw a report based on an investigation that she had accepted was flawed prior to carrying out a new investigation.63 The family were concerned that in the interim the original flawed report was being relied upon in other proceedings, such as a coroner’s inquest, by the NHS Trust and professionals they had complained about.64

40.Amanda Campbell stated, on 12 December, that once the PHSO had published a report, “in law our legislation requires us to quash the report in court and that we have no powers to withdraw a report once written.”65 Mr Behrens has subsequently taken the opposite view.66 His policy will be that in exceptional circumstances, he will quash a decision on his own initiative, and was intending to do so in relation to the case that had been raised with the Committee.67

41.We welcome the Ombudsman’s change in policy, and the clear statement that, in exceptional circumstances, the Ombudsman will quash an inaccurate or incorrect report. It is clearly reasonable that, where the Ombudsman accepts a decision is flawed and there is risk that if it is not withdrawn prior to a new investigation being completed it will do harm, he should be able to withdraw it. However, we recognise that the law is not certain on this point.

42.We therefore recommend that the Government include unambiguous powers in the Public Services Ombudsman legislation to allow the Ombudsman to withdraw his reports in exceptional circumstances. This continuing legal uncertainty is another reason why the legislation should be brought forward at an early opportunity. If the Government intends not to legislate to create the Public Services Ombudsman in the foreseeable future it should identify an alternative legislative vehicle to amend the existing legislation.

PHSO’s service charter

43.The PHSO introduced its new Service Charter in the summer of 2016. This sets out 14 commitments to complainants about the service they can expect.68 The PHSO publishes quarterly reports on its internal “Casework Process Assurance” against them, and the results of an independent survey of the views of 600 complainants.69 Amanda Campbell explained that they were leading the Ombudsman sector in systematically surveying their complainants, and therefore it was difficult to establish external benchmarks to measure themselves against.70 Instead PHSO would monitor changes across time to track their progress and identify areas that required greater attention.71 Service charter data has been published quarterly on the Ombudsman’s website since the third quarter of 2016–17.72

44.There are significant gaps on some commitments between the score produced by the PHSO’s casework process assurance and the views of complainants. In quarters 3 & 4 of 2016–17 the largest gap was on commitment eight: “We will gather all the information we need, including from you and the organisation you have complained about before we make our decision” at 53 percentage points (96% to 43%).73 In its written evidence, the PHSO suggested that such gaps were “because complainant feedback is based on questions regarding the complainant’s experience of our service, while the CPA [Casework Process Assurance] data assesses whether we have followed the correct approach in reaching our decision.”74 In its Annual Report the PHSO sets out that overall levels of satisfaction with its services tend to be related to its decisions on an individual’s case; 81% of those whose complaints were upheld were satisfied compared to only 51% of those whose complaints were not upheld.75

45.We welcome the innovation of the Service Charter, and the commitment to learning and improving the PHSO’s service to the complainants it represents. It will be an important tool for the PHSO, Parliament and the public to track and understand the PHSO’s performance over time. For that reason, we expect that the PHSO will continue to collect and publish this data in comparable form for the foreseeable future.

46.We accept that it is inevitable that the outcome of their case will colour the views of complainants regarding the overall service provided by the PHSO. However, we expect the PHSO to keep those commitments where there is a large gap between complaints perceptions and the casework process assurance scores under review. It should also provide assurance that the gap is not a result of failings in their processes.

Impartiality and unconscious bias

47.The one commitment the PHSO’s service charter does not ask for complainants’ views on is number ten: “We will evaluate the information we’ve gathered and make an impartial decision on your complaint”.76 Many written submissions suggested that the PHSO’s investigators are biased towards professionals or the body being investigated, called ‘bodies in jurisdiction’ by the PHSO.77 In evidence Amanda Campbell told us, “I have exactly the same said to me from bodies in jurisdiction; they believe that we are biased towards complainants.”78 She also highlighted that all PHSO staff undertake “unconscious bias” training, but accepted that sometimes staff “did not get it right” in communicating with complainants.79

48.Mr Behrens summarised his position as, “if you are not independent as an Ombudsman, you might as well give up.”80 He also stated that “us not being an advocate for complainants is very important to get across. One of the issues that needs to be borne in mind by some of our critics is that the complaint belongs to the complainant. We have a responsibility to investigate it impartially, but the decision belongs to the Ombudsman.”81 However, he accepted that it might be appropriate to include the question on impartiality in the PHSO’s survey of complainants.82

49.Specific questions have been raised about the PHSO’s use of independent clinical experts, including whether they should be identified and their advice shared with parties to a complaint to allow it to be challenged.83 The PHSO’s policy of sharing draft reports with bodies in jurisdiction was also criticised in some of the written submission we received.84 Mr Behrens confirmed to us that, in the future, all parties would have equal access to reports, and that the PHSO was reviewing its use of external clinical experts.85

50.We agree that impartiality and independence is central to the effectiveness of the Ombudsman. His decisions must belong to him. However, the public and Parliament must also have confidence that the PHSO is impartial. A core role of the Ombudsman is providing assurance to the public that if they suffer injustice at the hands of public services there is an impartial person they can turn to, whether they ever need to or not. This is important for maintaining public confidence in public services and public servants.86

51.We have no doubt that the PHSO is committed to taking its decisions impartially. However, as it recognises through the need for unconscious bias training, there is always a risk that investigators will display unconscious bias towards complainants or bodies in jurisdiction. Given the centrality of impartiality to PHSO’s culture and self-image, it is also possible that the PHSO staff carrying out quality assurance of the handling of PHSO investigations will display unconscious bias towards their colleagues. We recognise that external perceptions of independence and impartiality will be in themselves only a partial view, but they are a potentially important additional reference point for both the PHSO and Parliament to use in monitoring the PHSO’s performance.

52.We therefore recommend that the PHSO does ask complainants if they perceive it as making decisions impartially as part of the Service Charter, and systematically seek and publish the view of bodies in jurisdiction. We support the commitment to equal access to draft reports and other information between all parties to a complaint.

Data protection

53.The PHSO recorded five serious losses of personal data that they had to report to the Information Commissioner in 2016–17, all involving data relating to complaints it was investigating.87 For comparison the Care Quality Commission reported one loss and the Local Government Ombudsman none for the same period.88 The PHSO had reported a total of two losses for the three preceding financial years.89

54.Amanda Campbell told us that three of the incidents in 2016–17 related to couriers losing files in transit or being unable to account for their delivery.90 The PHSO recorded similar incidents in 2014–15 and 2015–16.91 Ms Campbell, however, assured the Committee that PHSO was “very aware of data security. We take it very seriously”.92 She added “We train all our staff every year routinely in data handling… they are very good at telling us when there have been issues and incidents, so that we can make sure that they are systemic issues and the we can follow them up.”93

55.Given the very sensitive nature of the personal data relating to complainants that the PHSO routinely handles, any serious loss must be a concern. We recognise, that, given the thousands of cases that PHSO handles annually, it would be unreasonable to expect it to never have an issue. However, the number of losses last year compared to similar organisations and the repeated losses of data by couriers is very concerning. We will monitor these issues closely in future years, and expect the leadership of the PHSO to take swift action if a trend of serious losses develops.

48 See for example, Public Administration and Constitutional Affairs Select Committee, Seventh Report of Session 2016–17, “Will the NHS never learn? Follow-up to PHSO report ‘Learning from Mistakes’ on the NHS in England” HC 743, 31 January 2017

49 PHS29

50 Q40

51 Q40

52 Q38 & PHS49 para 6

53 Q37

54 PHSO Ignoring the Alarms

55 Q1

56 Q1

57 Rob Behrens, Further written evidence, 12 January 2018

58 PHSO Annual Report 2016–17 p.10. It is unclear how many of the 13 cases were compensation was offered related to decisions made in 2016–17.

59 Q57

60 PHS 46

62 ibid

63 PHS 46

64 ibid

65 Q66

68 Parliamentary and Health Service Ombudsman “Our Service Charter”, accessed 02/02/2018

69 “Our Service Charter” PHSO

70 Q50

71 Q50

72 Public and Health Services Ombudsman “Performance Against our Service Charter”, accessed 02/02/2018

73 PHSO Annual Report 2016–17 p.15

74 PHS 49 para 13

75 PHSO Annual Report 2016–17 p14

76 PHSO “Our Service Charter”

77 See, for example, PHS 26 para 36, PHS 35, or PHS 37 para 2

78 Q41

79 Q52 & 54

80 Q41

81 Q42

82 Q43

83 See, for example, PHS 42 paras 5–8

84 PHS 26

85 Q41

86 See for example Richard Crossman in moving the Second Reading of the Parliamentary Commissioners Bill, HC Deb 18 December 1966 vol 734 col 44

87 Rather than personal data of staff. PHSO Annual Report pp. 46–48

88 Care Quality Commission, “Annual Report and accounts: 2016–17”, HC (2017–19) 200, 18 July 2017; Local Government Ombudsman, “Making a Difference: Annual Reports & Accounts 2016–17”, HC (2017–19) 181, 12 July 2017.

89 Parliamentary and Health Services Ombudsman, “The Ombudsman’s Annual Report and Accounts 2015–16” HC (2016–17) 779, 3 November 2016, “The Ombudsman’s Annual Report and Accounts 2014–15” HC (2015–16) 570, 9 November 2015; and “A Voice for Change: The Ombudsman’s Annual Report and Accounts 2013–14” HC (2014–15) 536, 18 July 2014.

90 Q81

91 PHSO Annual Reports 2014–15 and 2015–16

92 Q80

93 Q81

24 April 2018