Organisational bias by the PHSO
In my blog posts to date about my NHS Continuing Healthcare hell, I have focused my attention on the atrocious actions of West Hampshire CCG, along with one post on Hampshire County Council. There is plenty more to come.
But, for the time being, I will turn my attention to the Parliamentary and Health Service Ombudsman (PHSO).
For NHS Continuing Healthcare, the established complaint route is as follows:
· Formal Complaint
· Local Resolution (with the Clinical Commissioning Group – CCG)
· NHS England through an Independent Review Panel (IRP)
However, the IRP is only applicable for challenging eligibility decisions at a Multi-Disciplinary Team meeting. As our complaints have been regarding reviews, we are provided no recourse to NHS England. This is despite their role to ensure NHS Continuing Healthcare provision is conducted lawfully.
With the benefit of hindsight, our complaint and local resolution with West Hampshire CCG did not stand a chance. They lied, cheated, acted unlawfully, etc, etc, at every stage. Why would the same people suddenly change their mind? This forced us to go to the PHSO.
Our complaint to the PHSO focused on the overall treatment we had received from the CCG. The PHSO decided to break it down into the separate complaints. As such, this blog focuses on matters relating to the November 2017 review.
“The review in November was conducted contrary to national guidelines and local processes. We were not told the truth about the purpose for the review which led to consent being given on false information (we have contacted the ICO about this). We complained and a new review was set up. However, the CCG failed to answer all of the questions.”
How did the PHSO respond?
The PHSO stated that, with regard to our concerns that the Case Coordinator had not read all relevant documentation, not taken account of our views, did not prepare properly for the meeting nor that the seizure frequency was considered correctly, the CCG had remedied the situation.
“As such, whilst we do acknowledge that these failings will have caused you some distress, we consider that the CCG’s actions are sufficient to put right that impact on you.”
At the same time, the response from the PHSO ignored one of the biggest issues – the Case Coordinator accepted my wife was eligible but wanted to reduce the hours of care (despite the experts stating 24/7 healthcare was needed for the life-threatening condition) but, without any additional evidence, changed the outcome to a full reassessment of eligibility because we said we would appeal any reduction.
If all these failings had been accepted by West Hampshire CCG, why did they continue to refer to the outcome of that review for years afterwards as if it were valid? And why do they continue to hold the information despite our GDPR requests to have it deleted as it was unlawfully processed (due to misinformed consent) and no longer relevant?
What about the misinformed consent?
As we were unaware of this at the time of the first complaint, this matter was addressed by the PHSO in their response to our second complaint to the CCG.
“Such reviews can also occur if there is a change in need or if it identified that an earlier review is required. We understand the CCG decided a review was required and you question this decision. As this would be a discretionary decision that the CCG made, it is not our role to question discretionary decisions. Rather, we would consider if there is any indications of failings in the CCG’s decision making or rationale in reaching this decision. As the CCG has acted in line with the National Framework and Policy, we do not consider there to be any failings in the CCG’s rationale. This is because a review was decided further to the CCG receiving correspondence in October 2017 from Request Nursing Agency. This correspondence detailed that Mrs Jones [sic]had clinically improved and therefore the CCG made the decision to conduct a review. This is in line with the National Framework.”
(Formatting by me for emphasis)
This statement alone is proof of organisational bias.
The PHSO has assumed that West Hampshire CCG were telling the truth despite the evidence available. They were not. The Case Coordinator lied to us, telling us that reviews are done every 3 to 6 months. Then the CCG kept trying to claim it was the care agency that requested / instigated the review. This is not true. Whilst full details can be found in an earlier post (https://www.chcinhampshire.com/post/the-evolving-justification-for-an-unlawful-review), the deception by the CCG can be summed up very simply. Despite claiming evidence on their system and correspondence from the care agency, eventually Mike Fulford (Deputy Chief Officer) stated, “There are no records to share on the reasoning for the review.”
It is pretty safe to assume that we complained about the response from the PHSO. As such, it was re-reviewed in December 2018.
Without any justification to back up the claim, the response on this point was simply, “we found the CCG had the jurisdiction to reconsider the care package even though 12 months had not yet passed.”
How can they claim that when West Hampshire CCG has yet to provide any evidence for its claims for the reasoning for the review? The PHSO ignored this. What is the point of the PHSO if it simply assumes that the CCG is telling the truth?
To make matters worse, in a telephone conversation I had to explain to the PHSO reviewer the law regarding informed consent and, unbelievably, the difference between a review and a reassessment of eligibility through a Multi-Disciplinary Team meeting. I followed that up in writing to her but if basics like that are not understood then how can they be confident that they understand all the other rules. The issue of misinformed consent was ignored, again.
Not willing to let them get away with incompetence, I complained again to the PHSO. A further review was carried out, January – March 2019, by Jon Roper. Some quotes:
“I am satisfied our conclusions about the CCG completing reviews were in line with both the local policy as well as the National Framework.”
“It is not clear to us that consent was required for the CCG to complete a review.”
Point 1 – How can the PHSO determine that the review was in line with local policy when the CCG has no evidence to back up their false claims?
Point 2 – Seriously? The PHSO does not understand the BASIC CONCEPT OF INFORMED CONSENT for processing sensitive data.
Point 3 – The PHSO is effectively saying that it ok for the CCG to lie to us about the reasoning for the review.
And did the PHSO explain its view on why the outcome of the November 2017 review was changed?
What about the tampered documents?
This is a matter that the PHSO did not feel impacted their judgement. How? I have no idea. In addition, we made the PHSO aware that the CCG failed to disclose over 90 emails. You would have thought that it would raise alarm bells at the PHSO that the CCG is attempting to mislead them and that any other information provided may not be reliable. But it seems that this thought did not cross their mind.
Enablelaw.co.uk state, “Falsifying medical records is a crime if it is done with the intention to mislead, and clinicians who are found to have falsified records face being censured or struck off the register.”
No wonder West Hampshire CCG deny it. But why did the PHSO effectively ignore it? See my previous blog for more information on the tampered documents https://www.chcinhampshire.com/post/tampering-of-documents
Never mind the fact that we were failed by the PHSO, what does our case appear to say about the whole complaint process in the NHS?
· The PHSO either does not know the basic right of patients regarding informed consent or it believes it is ok for the NHS to access sensitive records without a valid legal basis and then lie to the individual and their representatives about it.
· The PHSO does not concern itself in obtaining evidence from the NHS that their claims are accurate, even when the complainant has provided evidence to the contrary.
· When the PHSO assumes that the NHS does not lie or mislead, NHS organisations are virtually free to avoid accountability.
· The PHSO does not concern itself with tampered or missing documents and continues to believe everything that the NHS says.
Have any lessons been learnt from the Gosport War Memorial Hospital scandal, where a much-loved relative of mine had her life “shortened”?
Just wait for the next blog post about the PHSO response to the January 2018 review. The incompetence / bias of the PHSO gets far worse.