PHSO Annual Scrutiny 2016–17 Contents

4Historic complaints

56.A number of the submissions we received were about cases where the original incident had occurred a number of years previously. In some, such as the death of Averil Hart, the PHSO investigation had taken several years to complete.94 In others, complainants had spent a number of years seeking to get the PHSO to correct what the complainants saw as failures in the PHSO’s original investigation or to change its decision.95 The Ombudsman drew a distinction between, on the one hand, the need for the PHSO to engage better, “with complainants with longstanding grievances” about how their case had been dealt with and, on the other, whether complainants should be able to seek an external review of the Ombudsman’s decisions.96 He rejected the latter as, “contrary to the constitutional principle of the Ombudsman” as the “independent complaint handler of last resort”.97

57.Mr Behrens highlighted a small number of historic cases that he judged might warrant further independent investigation, because of concerns about the original investigations.98 He was clear that it would not be appropriate for the PHSO to undertake these.99 In its report into the quality of NHS Complaints in 2016 our predecessor Committee endorsed the:

… proposal for the re-opening of historic “unresolved grievances”, but only where there is a clear argument that doing so would assist in improving patient safety in the future, or where serious outstanding legitimate grievances persist. This process might take the form of a single public inquiry, to consider which legacy cases to review, to hear the selected cases, and make recommendations arising from them. This should be seen in the context of other wide-reaching inquiries in recent years, such as the public inquiry into historic child sexual abuse, the Hillsborough Independent Panel’s inquiry into the Hillsborough disaster, and the Saville inquiry into the events of Bloody Sunday. The purpose of this single public inquiry would be to provide closure to those affected by patient safety incidents, which cannot otherwise be obtained.100

58.In its response, the Government stated that it, “had an open mind” on the issue but was concerned that a single inquiry, “might prove unsustainable”.101 It did, however, commit to developing alternative options, although none have subsequently been published.102

59.We agree that the PHSO is not the correct body to carry out inquiries into historic cases However, there remains a need for them to be addressed, both in the interests of the families involved and in ensuring that any safety lessons that can still be learnt are. We therefore endorse and repeat our predecessor Committee’s recommendation; that the Department of Health and Social Care should develop a proportionate, time limited, mechanism to independently investigate and address those cases were legitimate questions or grievances remain. There is also a need to address local complaint handling and investigations in the NHS to ensure that there are fewer failed investigations in the future, we address this in the next chapter.

94 PHSO “Ignoring the Alarms”

95 See for example PHS 46

96 Q2&3

98 Q2–8

99 Q3

100 Public Administration and Constitutional Affairs Committee, First Report of Session 2016–17 PHSO Review: Quality of NHS complaints investigations HC 94, 2 June 2016, para 81.

101 Public Administration and Constitutional Affairs Committee, Second Special Report of Session 2016–17, PHSO review: Quality of NHS complaints investigations: Government response to the Committee’s First Report of Session 2016–17 HC 742, 18 October 2016.

102 ibid

24 April 2018