• Phil Austen-Jones

Why admit errors when you can just change the outcome?

My earlier blog posts told the story of how West Hampshire CCG decided to do an NHS Continuing Healthcare review for my wife despite not having evidence of a valid legal basis nor informing us of the real reason they were doing it. The subsequent review (which took place in November 2017) was shambolic for multiple reasons, including changing the outcome to ‘may no longer be eligible’ after we said we would appeal the reduction in care that the reviewer initially wanted (his view was contrary to the opinions of the experts, some of which he refused to read).

WHCCG offered a second review. This took place in January 2018. Despite agreeing that my wife continued to be eligible, the reviewer used fake guidelines to send our case to a Multi-Disciplinary Team (MDT) meeting to reconsider eligibility. It was agreed that the reviewer would ask a senior manager if the MDT could be avoided as there was only a minor change and there was still a priority and two severe domain scores. The response, 75 minutes later, was MDT due to the minor change.

THE NEXT SCANDAL

Unsurprisingly, we wrote to WHCCG stating that the process was wrong and that there should not be an MDT as wife still clearly eligible. We cited the December 2018 complaint response letter, West Hampshire CCG policy and the NHS Continuing Healthcare Decision Support Tool.

“With regards to the recommendation following clinical review, as discussed above, the role of the case coordinator is to highlight whether there has been a change in presentation which may lead to an increase or decrease in provision, as well as consideration as to whether a decision support tool review meeting is appropriate. The decision support tool review meeting should be facilitated when there is an indication, when aligned with the initial decision support tool, that there may be a change in outcome of NHS Continuing Healthcare eligibility. The team apologise that this was not effectively completed or communicated to you at the time of the meeting.” (Heather Hauschild, Chief Officer at WHCCG, in response to the November 2017 MDT decision. Formatting my own to highlight key statement.)

“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.” (WHCCG Joint Operational Policy for NHS Continuing Healthcare v4. Formatting my ow to highlight key statement.)

“A clear recommendation of eligibility to NHS continuing healthcare would be expected in each of the following cases: A level of priority needs in any one of the four domains that carry this level. A total of two or more incidences of identified severe needs across all care domains." (Decision Support Tool for NHS Continuing Healthcare)

We were confident that common sense would prevail. We had one priority and two severe domain scores. The decision for MDT was on the basis of a minor change in a relatively irrelevant domain in relation to our case so there was no indication that eligibility was in doubt.

BUT NO

Instead of accepting the failure in due process, the reviewer and senior manager changed the outcome of the review without our knowledge or consent.


This is absolutely scandalous. Having decided that the case would go to MDT due to a minor change, in the face of challenge in due process they changed the outcome. As a result, at best, now we only had one severe domain score. Not only was this change in outcome unlawful due to data protection breaches, it is contrary to case law and due process in accordance with WHCCG policy and the National Framework for NHS Continuing Healthcare.

Naturally, we made a formal complaint about this.

There are so many issues with the way WHCCG dealt with our complaint but this post will focus on the changing of the outcome.

THE WEST HAMPSHIRE CCG RESPONSE

In a Local Resolution Meeting (which was supposed to be regarding the November 2017 review), WHCCG brought up the January 2018 review. Verbally, it was admitted that the changing of the outcome by the senior manager should not have happened. We have a recording of this statement that was sent to us by WHCCG. But there was a determination to take our case to MDT whatever – this will be proved beyond any doubt in our next post.

In the formal written response, WHCCG changed their tune, stating: “The request for senior clinical management support in response to the concerns raised at the review is considered to be an appropriate escalation; this is in line with local governance procedures to ensure consistency of decision making.” (WHCCG Complaint Response, March 2018)

We spent over two years trying to challenge WHCCG on this point and were constantly rebuffed by the CCG either refusing to answer the question or simply stating that they had done “robust” investigations. WHCCG has consistently refused to answer when the ‘review of clinical evidence’ took place. Was it before or after the phone call 75 minutes after the review meeting (which stated MDT due to minor change, not due to change in scores).

KEY ISSUES

The review of clinical information by the senior manager was a data protection law breach, along with failure to follow multiple policies:

  • Data Protection Act 1998 (see schedules 1 and 2)

  • WHCCG Confidentiality Policy – Data Protection Act 1998 (paras 10.1, 17.1, 17.3, 19.1, 20.1)

  • WHCCG Information Governance Policy (paras 1.4, 1.5, 4.2, 8.10.1, 8.11.1)

  • Department of Health: Confidentiality – NHS Code of Practice (multiple citations, including Model B1)

  • The Caldicott Principles (In particular, Principles 2, 4 and 6)

When processing sensitive information, e.g. medical records, the processing must be necessary and with a legal basis. There was no agreed purpose for the senior manager to re-review the case. Considering our level of distrust in the system, why would we allow a senior manager, who had never met my wife, make clinical judgements behind our backs? There was only one agreed purpose for speaking to a senior manager – does a case with one priority domain and two severe domains need to go to MDT? Yes or no? That was answered within 75 minutes and disclosure of any other records was not necessary, part of any due process nor consented to.


There is nothing in the WHCCG Joint Operational Policy for NHS Continuing Healthcare, WHCCG Standard Operating Procedure for NHS Continuing Healthcare or the National Framework for NHS Continuing Healthcare, that allows a senior manager to review the outcome of a review without the knowledge or consent of the individual.

Furthermore, paragraph 44 of the National Framework for NHS Continuing Healthcare (2012), states that “decisions and rationales that relate to eligibility should be transparent from the outset for individuals, carers, family and staff alike.” The only statement regarding rationale is this:

“advised that she felt Rachael’s needs in Altered States of Consciousness would not meet the Priority level, and advised for an MDT to be arranged.”

So, no rationale then. I guess that if you don’t provide a rationale you cannot be challenged on it!

Unfortunately, the ‘opinion’ of the senior manager is completely against the evidence of the medical experts and is therefore in contravention of case law – Clarke v Sutton LBC (2015). A case that has striking similarities to our own, it clearly states that non-experts should not overrule the views of experts. One of the experts who provided statements, a GP who has known my wife for twenty years, stated:

“She has recently had an assessment where it has been suggested that her care is reduced. I would categorically say that this should not be done. This lady requires help throughout the day and not just at certain times. I feel it would be incredibly dangerous for her. She sometimes stops breathing and needs slapping on her back to get her to breathe.”

What is even more staggering is the statement that has been retained in the January 2018 review report.

“Mr Austen-Jones has copied letters from health professionals involved in Rachael’s care. Please read attached documents on CONI for further and more in depth information in regards to Rachael’s epilepsy history. Health professionals (GP, epilepsy nurse, Consultant neurologist) have advised that Rachael’s epilepsy is unpredictable, difficult to manage, life threatening, and requires constant monitoring. The health professionals advise that Rachael often stops breathing when having a seizure which is life-threatening.”

It is our very firm belief that the senior manager is either grossly negligent or, more likely, tampering with the outcome to suit an agenda for WHCCG in the face of challenge from us. Either way, her conduct was unlawful as she did not need access to the sensitive information to answer the question that was agreed between ourselves and the case reviewer.

BUT WHCCG SAID IT WAS IN ACCORDANCE WITH LOCAL GOVERNANCE PROCEDURES

That is certainly true. What they failed to mention was that these ‘local governance procedures’ do not exist. After two and a half years, under constant challenge from us, WHCCG were still trying to say that the actions of the senior manager were appropriate and in accordance with procedures.

“Supervision by line managers is standard practice in the NHS.”

“WHCCG confirms the purpose of the call was to seek advice from a line manager or equivalent, which is a usual escalation route if staff have concerns about any area of their work.”


References were also made to the April 2017 consent form (which does not prove informed consent), which mentions ‘supervision’, ‘quality assurance’ and ‘monitoring’.

BUT I AM PERSISTENT

Being confident that we were still being misled (lied to?), we continued to request that WHCCG evidence their statements (something that they have been very poor in doing in our case, and for very obvious reasons). In response to the documentation request relating to ‘local governance procedures’, ‘supervision’, ‘quality assurance’ and ‘monitoring’, the response was as follows.

“WHCCG have advised they do not have a management supervision policy but good line management practice for a staff member would be to contact their line manager if they have a case they wish to discuss.”

So, they effectively admitted that they lied. It is not ‘procedure’ at all. And in any case, in accordance with the law, personal sensitive data can only be shared if it is necessary for a valid legal basis and (in most cases including this one) consent is obtained.

We also asked, “It is stated that “WHCCG confirms the purpose of the call was to seek advice from a line manager or equivalent.” We request the evidence WHCCG has used to confirm this and, as originally requested, the documentation demonstrating the agreed purpose of [the reviewer]’s request for advice from [the senior manager].”

The response is priceless...

“There is no evidence specifically that considers this point. The action that occurred was a phone call, and therefore we are unable to provide any documentation.”

So, it appears that West Hampshire CCG has been defending the senior manager and themselves when they have not grasped the actual issue. Our complaint letters and follow ups were very clear in this issue and we have recordings as well to back up our claims. Despite repeatedly alleging that they had done ‘robust’ investigations, it seems that West Hampshire is either grossly negligent or, more likely, covering up their unlawful actions.

Considering the experience I have faced as a family member of the Gosport War Memorial Hospital scandal, I have no doubt that the actions I have faced from West Hampshire CCG will come as no surprise to many, including the victims/family members of other large NHS scandals, never mind whistleblowers such as Consultant Peter Duffy MBE, Dr David Drew and Dr Chris Day.

And there is so much more to come from our story with West Hampshire CCG. It certainly does not get any better for them (or us).

POSTSCRIPT For the purpose of transparency, I am now providing West Hampshire CCG with a copy of each blog post before it goes out. This is to provide them with the opportunity to inform me of any factual inaccuracies. I may not change the blog post, but I will post any response I receive from them, plus any additional comments I feel are needed to challenge their assertions.


They have not informed me of any fact inaccuracies in this blog post.

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