• Phil Austen-Jones

PHSO - Incompetent or complicit in unlawful behaviour?

In my previous blog post, I demonstrated organisational bias by the PHSO in its handling of our complaint regarding the issues around our NHS Continuing Healthcare review in November 2017. The organisational bias was maintained through the original investigation by the PHSO and two subsequent reviews of their decision. The same bias continued into the investigation into our complaint about the January 2018 NHS Continuing Healthcare review.


“Organizational bias occurs when factors such as culture, senior leadership, strategic focus and team organization influence data selection and data use to a point where selection is no longer based on merit.”

(towardsdatascience.com)


The Law


The NHS Commissioning Board and Clinical Commissioning Groups Regulations 2012

“21 (2) A relevant body must take reasonable steps to ensure that an assessment of eligibility for NHS Continuing Healthcare is carried out in respect of a person for which that body has responsibility in all cases where it appears to that body that-

(a) there may be need for such care; or

(b) an individual who is receiving NHS Continuing Healthcare may no longer be eligible for such care.”


The only legal basis West Hampshire CCG would have to conduct a reassessment of eligibility (at an MDT) of my case would be if needs had changed by such a level that eligibility is in doubt.


The review in January 2018 identified 1 Priority domain and 2 Severe domain scores. The Case Coordinator felt that my wife was clearly still eligible but it was “simply the guidelines” that any change must go to MDT. There was a minor change in one domain that was irrelevant to the main issue (of stopping breathing during epileptic seizures).


Point 1 – We were lied to. The guidelines do not exist.

Point 2 – Under challenge, the Case Coordinator and a senior manager changed the outcome, without our knowledge or consent, nor in accordance with any policy or law. The change reduced the scores to just one severe domain.


The response we received from the PHSO regarding the January 2018 review used West Hampshire CCG’s response to our complaint as fact, and ignored the evidence provided by us, including recordings of the meeting. Other aspects of our complaint were ignored.


The first response from the PHSO


“A further concern you have raised is the decision for the case to be referred to the Multi Disciplinary Team (MDT). Both you and the CCG has detailed the reasons for this that there was a change in the Continence domain. We have taken into account your concerns that this domain did not impact the care provision that was being decided. However, Paragraph 13.2 of the National Framework details that eligibility decision should not be made in the absence of a MDT recommendation. The NHS website also contains the process of the decision making which reflects that upon a review, if needs have decreased, which was the case for Mrs Jones [sic], it may be necessary to reconsider eligibility and a MDT assessment should be considered.


“Based on this, we consider the CCG to have acted in line with the National Framework and established processes in proceeding to a MDT. There are therefore no failings identified.”


This is a great example of the PHSO seeking the evidence to defend the NHS rather than seeking the evidence to uncover the truth.


What does the National Framework actually say about reviews and referral to MDT? (Please note, this is based on the 2012 framework that was in place at the time of the reviews, not the current 2018 framework.)


Paragraph 139

“The focus of the review should not just be on whether the individual remains eligible for NHS continuing healthcare but on whether needs are being met and whether the package of care remains appropriate.”


So, contrary to the assertion of the PHSO, a review does consider eligibility. But what decision should be made?


This image is Figure 1 from the National Framework

“If needs have decreased it may be necessary to reconsider eligibility for NHS CHC.”


It does not say, ‘if needs have decreased you must reconsider eligibility’, it says it may be necessary. This is because the law, as shown above, states that an MDT can only be held if the person may no longer be eligible.


But what about the West Hampshire CCG policy?


“12.1 Should a review show that following a change in need the individual may no longer meets criteria then a reassessment of eligibility must be undertaken following the DST process.”

(West Hampshire CCG NHS Continuing Healthcare Joint Operational Policy, Version 4)


So what happened at the review?


Contrary to WHCCG policy, the National Framework for NHS Continuing Healthcare and the law, the case coordinator said that our case had to be referred for a Multi-Disciplinary Team (MDT) meeting to use the DST to reassess eligibility.


The reasoning was even more staggering. She said that any change must go to MDT. We were both flabbergasted and outraged. We knew this was not true. But she said, and we have it recorded, that it was “simply the guidelines”. She also said, “The guidance is any change goes to MDT,” and “I have to follow my guidelines and they say any change means MDT.”


However, it was clear that she did not agree with the need to refer to MDT for reassessment. In our debate about “minor changes” (quote from the case coordinator), she said, “regardless, one priority would mean someone is CHC eligible.” It was agreed that she would go to a manager to ask, and these are her words, “there is still a priority, therefore why do we need to go to a Multi-Disciplinary?”


My father, a retired dental surgeon and forensic odontologist, was present at the meeting. He asked, “If staffing is an issue, why do they want to hold an unnecessary MDT?” The response of the case coordinator was simple.


“I know. It doesn’t make sense, does it.”


And what did Pauline Dorn, Head of CHC at West Hampshire CCG, say at the Local Resolution Meeting?


“I agree, that two severe and a priority would indicate a Primary Health Need.”


THERE WAS NO DOUBT ABOUT ELIGIBILITY WHICH MEANS A REASSESSMENT OF ELIGIBILITY WOULD BE CONTRARY TO THE LAW.


This means that the PHSO is either completely incompetent or it is complicit in unlawful behaviour in the NHS, even when the behaviour is harming vulnerable people.


What about the changing of the outcome after the review by the Case Coordinator and a senior manager? Surely the PHSO will bring the CCG to task on this?


No. The PHSO ignored it. The PHSO ignored actions which are blatantly unlawful.


So we complained to the PHSO about their decision.


But the response from the PHSO simply reiterated their incompetent / complicit assertions from their original ‘investigation’.


Once again, the PHSO ignored the changing of the outcome from the Case Coordinator and the senior manager.


We complained again.


The response came from Jon Roper, the Head of the Review and Feedback Team.


“I appreciate you have explained that the changes were only minor and not in the domains where priority and severe scores had been recorded… I am satisfied we have already appropriately considered this point.”


Once again, the PHSO completely ignored the unlawful changing of the outcome after the review by the Case Coordinator and senior manager.


Sadly, there is more to come from my debacle with the PHSO.


I can only conclude that the PHSO is either completely incompetent or, more likely and worryingly, complicit in the NHS Continuing Healthcare scandal where tens of thousands of people are being unlawfully denied their legal right to NHS Continuing Healthcare.


The chart below shows the dramatic decline in people eligible for NHS Continuing Healthcare since the Government set a target of saving £855m from this provision. When CHC is, by law, based upon eligibility rather than finance, it is not feasible to achieve those savings targets without unlawful behaviour and harming vulnerable people. If there isn’t the finance to pay for NHS Continuing Healthcare, change the law. Don’t break it.

Further information of the NHS Continuing Healthcare scandal, please see the campaign website nhschcscandal.co.uk.


If you wish to support the campaign for a judicial review into the NHS Continuing Healthcare, please visit crowd justice.

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