• Phil Austen-Jones

PHSO Principles of Good Complaint Handling - IGNORED BY THE PHSO

My previous two blog posts have focused on the bias / ineptitude of the PHSO in dealing with our NHS Continuing Healthcare complaint against West Hampshire CCG. This post delves deeper into the issues.


According to the PHSO website, what they do is:


“We make final decisions on complaints that have not been resolved by the NHS in England and UK government departments and other UK public organisations.


“We look into complaints where someone believes there has been injustice or hardship because an organisation has not acted properly or has given a poor service and not put things right. We look into complaints fairly and our service is free for everyone.”


Whilst there is recourse to a PHSO decision via judicial review, these costs tens of thousands of pounds and is therefore out of reach for most people. As a result, the PHSO is pretty much the final arbiter in disputes with the NHS.


West Hampshire CCG’s handling of our complaint about the January 2018 review


Our complaint was regarding the use of fake guidelines in the review and then the unlawful altering of the outcome of the review to downgrade the judgements, without our knowledge or consent and contrary to policy.


Prior to investigating our complaint, the Head of Continuing Healthcare, with the knowledge and agreement of the Deputy Director of Continuing Healthcare, conducted her own clinical review of the case. But the complaint was about process not clinical judgement. There was no legal right to access my wife’s records for this purpose. This unlawful action determined the outcome of our complaint before it was even investigated.


How did the PHSO respond?


The first response from the PHSO failed to address these key issues.


The second response from the PHSO failed to address these key issues.


The third response from the PHSO said the following:


“You also raise concern that you did not consent to a further review in February 2018. My understanding is that what happened in February 2018 was part of the CCG looking at the complaint you raised about the January 2018 review. I have not seen evidence that shows the CCG would have needed consent to consider concerns about a review.”


Cover up or incompetence?


Let’s start with the law.


The Local Authority Social Services and NHS Complaints (England) Regulation 2009

“Procedure before investigation

13(7) At the time it acknowledges the complaint, the responsible body must offer to discuss with the complainant, at a time to be agreed with the complainant-

(a) The manner in which the complaint is to be handled”


That discussion was due to take place on 15 February 2018. The Head of Continuing Healthcare made her judgement on the 13 February. She conducted her ‘review’ contrary to law.


Data Protection Act 1998


“Schedule 1 – The data protection principles

2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.


“Schedule 3 – Conditions relevant for purposes of the first principle: Processing of sensitive personal data

1. The data subject has given explicit consent to the processing of the personal data.”


The data processed was obtained for a review (albeit a review without a valid legal basis). It was not obtained for a complaint. The complaint was regarding the processes followed by the case coordinator and the senior manager. There was no legitimate basis for the Head of Continuing Healthcare to conduct a clinical review, especially when she had never even met my wife.


The fact that she then lied to us in the Local Resolution Meeting on 15 February 2018 demonstrates that she knew what she did was wrong.


“I’m not party to any of the evidence that was supplied.”


Consent is implied when a complaint is submitted. It cannot be investigated properly without access to records. However, the processing has to be on the basis of responding to the issues raised in the complaint. She did not do this on 13 February 2018. She conducted a clinical review that determined the outcome of a complaint about due process that had not yet been investigated.


West Hampshire CCG Policy


Policy for the Management of Complaints (Version 2.03)


“3.6.3 At the time of acknowledging the complaint the complaints team must offer to discuss and agree a plan of action.

“3.8.1 Care will be taken at all times throughout the complaints procedure to ensure that any information disclosed about the patient/service user is confined to that which is relevant to the investigation of the complaint.”


No wonder she lied to us. She knew what she did was wrong.


Then we get to the PHSO’s own “Principles of Good Complaint Handling”


“Acting in accordance with the law and relevant guidance, and with regard for the rights of those concerned.”


FAILED

WHCCG did an unconsented review prior to investigation or discussion with us.


PHSO response? They could not find anything specific about consent.


“Listening to complainants to understand the complaint and the outcome they are seeking.”


FAILED

WHCCG told us they would discuss the complaint on 15 February 2018. Instead, they conducted an unconsented review on 13 February 2018. They even lied to us about this review at the meeting on 15 February 2018.


PHSO response? This unlawful behaviour was ignored.


Providing honest, evidence-based explanations and giving reasons for decisions.”


FAILED

WHCCG lied about “local governance procedures”. WHCCG lied about the reasoning for the review. WHCCG lied about the review they conducted prior to investigation. And as for evidence?


PHSO response? Assumed WHCCG was telling the truth, contrary to the evidence.


“Keeping full and accurate records”


FAILED

WHCCG finally admitted that they did not keep investigation records, only to then lie by claiming it was not part of their policy at the time.


PHSO response? Nothing.


“Ensuring that complaints are investigated thoroughly and fairly to establish the facts of the case.”


FAILED

WHCCG failed to answer all aspects of a complaint, decided the outcome before investigation, made statements contrary to evidence, and lied about “local governance procedures”.


PHSO response? Assumed that everything the CCG said was correct.


“Ensuring that complaints are reviewed by someone not involved in the events leading to the complaint.”


PARTIAL FAIL

In fairness, the Head of Continuing Healthcare at WHCCG was not part of the January 2018 review or involved in the altering of the outcome. However, she did her own clinical review which determined the outcome of our complaint. Only then did she investigate our complaint.


PHSO response – Ignored it in the first two responses and then finally said it was part of the CCG complaint process.


“Acknowledging complaints and apologising where appropriate.”


FAILED

As far as WHCCG claim, they did nothing wrong.


PHSO response – agree with WHCCG.


I believe that the PHSO had no interest in providing a fair and impartial service to resolve the dispute between myself and West Hampshire CCG. All the evidence shows that the PHSO looked for any reason to excuse the CCG’s unlawful behaviour. And we wouldn’t be the first to receive poor / biased service from the PHSO.


“In Miller & Another v Health Service Commissioner for England [2018] EWCA Civ 144 the Court of Appeal quashed both the ombudsman’s decision to investigate and the conclusions of that investigation. The court found that multiple forms of unlawfulness were compounded by a variety of poor adjudicative practices.”

(Kingsleynapley.co.uk)


How many others have suffered at the hands of the PHSO without having the resources to take it to judicial review?


Why is there an NHS Continuing Healthcare scandal? Because those who should be holding CCGs to account (and future posts will focus on other organisations) appear to be colluding with them instead.


To read more about the NHS Continuing Healthcare scandal, please visit the campaign website – nhschcscandal.co.uk


POST SCRIPT - I provided this blog post to both West Hampshire CCG and the PHSO for a factual accuracy check. Neither reported any errors to me. Not that I am surprised. I have evidence for everything I have stated in this post, and every other blog post.

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