30 June 2011

What the Ombudsman said.

When I first heard about what would become Cure the NHS, right at the end of 2007 it became immediately apparent to me that there had been a failure of the complaints system at Stafford Hospital.  This raised big questions for me then, and it continues to do so now.
The ombudsman matters.  This is the end of the road for complaints. It is our guarantee that if someone has suffered injustice or hardship as a result of failure of the service, or failure to provide a service or, maladministration, that their case can be examined.  You will find more about the service here

Ann Abrahams is clear that the ombudsman is very much a last resort. People only come to her when they have exhausted other possibilities. For some people this works, and for other people and Julie Baileys evidence shows that this includes her, the process is frustrating.
The ombudsman has to work within the clear confines of a act.
what the ombudsman is empowered to investigate is a complaint that a person has sustained injustice or hardship in consequence of service failure or maladministration.
The case has to satisfy both of these requirements.
Often the cases are not cut and dried. Here is an example that Ann Abrahams used to illustrate the problem
So it may be that somebody comes to us and says: there was a delay in diagnosis and as a consequence, my loved one is no longer with us, and if that diagnosis had been done when it should have been done, because, you know, the referral time for -- for tests had been adhered to, then my husband wouldn't have died. And -- and we can look at that and we can, with the benefit of expert advice from our clinicians, we may well be able to say that: yes, there should have been a referral and there should have been a diagnosis, you know, six months previously; but we may also be advised by our professional advisers that it would have made no difference; and therefore that the consequence in terms of injustice as the complainant, you know, quite reasonably believes it to be the case, actually isn't sustained as a result of one of our investigations. So, you know, the -- the two legal concepts of service failure and injustice have to be both present and the injustice has to be as a consequence. That's what the law gives me to work with.

THE CHAIRMAN: But presumably in a case such as the one you mention, an injustice might be identified in terms of the distress caused by the late diagnosis, even if it has no physical causative effect. 

A. Absolutely, chairman, and I can think of a number of cases in -- in which what we've concluded is that the - the outcome in terms of the person's death may not have been any different, but that doesn't mean there has been no injustice.

There was a discussion on the concept of “worthwhile outcome”.  This is something which is not defined in law, but has been used by the ombudsman’s office as an internal measure to test if anything meaningful can be achieved by pursuing a complaint. There is a clear meaning for this within the office, but this can be less clear to other people.
Ann Abraham says that this has been flagged up by the parliamentary select committee as a concept that can cause offence to some complainants, and they are going to review the use of the language.
For Ann Abrahams what she is trying to identify is if the ombudsman’s action can achieve what the complainant wants. If it can’t do that then is it in the wider public interest? If the complaint has specific wishes like seeking the disciplining of an individual doctor then this is best pursued by other means.
 if somebody is really concerned about the professional conduct of an individual clinician, and that's what's eating away at them, then there really isn't any point in the ombudsman taking that case on for investigation, because at the end of that, we might, if we felt there was sufficient concern about the professional conduct of an individual, make our concerns known to the relevant professional regulator, but it would be a very indirect way of supporting the outcome the complainant was looking for.

There may be cases where there is no point in trying to do more than has already been done in other ways.
And in a case where something may well have been seriously substandard, but the NHS body has acknowledged that and accepted that and apologised for that, and there has been an appropriate remedy for the individual, and there has been an appropriate systemic remedy put in train, and there's been learning, and the regulator is on the case in terms of follow-up action, then I would say, and I think my staff would say: what is to be gained by an ombudsman investigation for this individual and for the wider public interest in these circumstances?

Ann Abrahams feels strongly that the right way is to aim for local and immediate response to complaints. This shows some of the work being done to establish better complaint handling. They have been supporting the process of improving the complaints process at a local level by visits and training sessions with the 50 trusts with the highest complaints level. With the first of these there has already been a major drop in complaints to the ombudsman.
( I will add my own suggestion here, It may be that the process they are trying to bring about here needs to mirror that of the NSPA, where the aim is to increase the level of low level reporting – which could here be comments or concerns – with the aim of raising issues before they ever reach the stage of being complaints )

She Reacts to Health Select Committee's report

I suppose I'm always concerned with recommendations which seek a change in the law, when actually what people want is a change in behaviour and it may well be that my office needs to behave differently and we needto use some different language, but I don't think there's anything in the legislation which stops us doing that.

She is keen that there should be no major structural changes. It has taken from 2002 to 2009 to get the system to current 2 stage process and she is certain this is the right solution
Previously there was a three stage process, starting local – then going through Health Care commission and then ending up with ombudsman.  The fatigue of dealing with this cumbersome system could well have deterred people from complaining.
The new system is working faster. Ann Abrahams sees complaints coming through now within 6-12 months. Previously it was much longer.
The Inquiry wanted to know why are there so many more complaints?
in 2010 to 2011 you received 13,625 enquiries.
The Healthcare Commission during its time as the second stage received roughly 8,000 referrals  a year.
Ann Abrahams did not have an answer to this.  (I would personally suggest that this may be to do with greater prominence of these issues in the press we have seen that the patients association had to increase its staffing levels from 2 to 6 following the publication of the HCC report, and that there have been a stream of high profile reports, which will all have had the effect of increasing the likelihood of people complaining.

Ann Abrahams was asked if this might reflect worse handling of complaints at a local level. She does not think this is the case. Her caution is that we should try to understand the story, rather than try and deduce the story from the numbers.

The inquiry looks at numbers of contacts, and the numbers that were pursued to investigation . in 2009-2010 there were 15,579 contacts, and only 219 interventions and 349 accepted for full investigation. Ann Abrahams was at pains to say that the presentation of the is data may be a little misleading, and there may be an element of double counting, but she agreed with Robert Francis that investigations were a tiny proportion of total complaints.  This is useful to know as it puts Julie Baileys disappointment that her case did not proceed to investigation into a wider context. The most likely reason why her case did not proceed was that by the time a decision was made she had already been very heavily involved in the healthcare commission report. and the David Colin Thome report and Alberti Report had already taken place. The steps to learn from and remedy the issues her case raised had already been taken and it was unclear that any further benefit could be gained from pursuing an ombudsman’s investigation.
There was some discussion about if it is right that the numbers should be so small? Ann Abrahams thinks that it is. The priority should be to improve the quality of local complaints handling, so that complainants are not subjected unnecessarily to long, drawn out processes.  She feels that the NHS has a long way to go before it can be said to be offering a good complaints service.  In the 2010-2011 year only 2 trusts did not have a complaint to the ombudsman.  
if the NHS is doing the sort of job it should be doing, in resolving complaints locally, and the ombudsman is the last resort in that; well, what size should the ombudsman's office be? What sort of numbers of complaints should it review and should it investigate? And how much public money, you know, should go into that part of the system? So they're all, you know, perfectly proper questions. And it has always been my overriding objective to work in a way that drives improvements in the way the NHS handles complaints and delivers healthcare, rather than to suck huge volumes of complaints into a -- a national ombudsman's office.

Ann Abrahams was at pains to add
I'm not for a moment suggesting that everything's okay out there, because we all know it's not.

She was asked to look at the reasons why some people will remain  dissatisfied with the system? What are the causes for dissatisfaction
·         outcome of their complaint,
·         no one to help them make their complaint, so the advocacy services were poor.
·         People may be unhappy with how long it took.
·         Is it about the culture in the NHS which provides defensive responses?

She told us that  I can't shed much light, if any, on the events at  Mid Staffordshire NHS Foundation Trust between  January 2005 and -- and March 2009. the pattern of complaints that we received  didn't provide any information to distinguish  Mid Staffordshire from any other NHS trust, and we had  no other information that would have led us to do so.
With regard to the Health select committee she strongly argues that there should be no major changes to the service. It needs time to settle into the new structures set up in 2009
I spent the five years in this job arguing for reform, and then I spent the following two years working to implement reform, and to achieve a smooth transition and we did that. And what I said in my evidence to the Health Select Committee earlier this year was that the two-stage NHS complaints system introduced in April 2009 is quicker, simpler and more effective than the previous system. And that the new system is already demonstrating its potential and needs to be given time to prove its worth. So the design is good.
But that doesn't mean that everything is working as well as it should be, and it doesn't mean everything is working as well as it could be. It doesn't mean the NHS is performing as well as it should be, it doesn't mean that there's no scope for my office to improve the service it provides. But it does mean that we don't  need to redesign the system.

Her recipe for a  better complaints system  includes
·         Advocacy
·         Information
·         Leadership
·         Time.
Both Robert Francis and Ann Abrahams were concerned about the effect that the complaints process can have on the complainant.  This exchange shows a little of this.
 THE CHAIRMAN: What is the answer to the problem of the complainant who makes a complaint in which they believe and have very strong feelings, which can then, of course, be exacerbated by the system that they have to go through, but you find, as perhaps others in the organisation have found, that there is no actual justification for the particular subject matter of the complaint, but the individual remains firmly of the belief that there is some substance to it?
I mean, in a sense, by definition that's an impossible problem, but it seems to me from my previous inquiry, and generally my experience, that there is a diaspora of complainants who are damaged by a process, whether or not their original complaint had any foundation to it?

A. Well, I think, you know, your experience and mine is the same. And I think what my office tries to do is ensure that -- that we give proper consideration to -- to complaints, that we make a decision which is fair to both sides in this dispute and that's our job, and that we explain the reasons for our decision, if it's a decision that the complainant's not going to be happy with, we do this for everybody, but if -- if somebody's not going to be happy with our decision, then our challenge is to explain that with the proper combination of analysis and empathy for what's happened to them. And we have in place a review process which is my safety net, so that if people think we have -- have got it wrong, that somebody who has not had any previous involvement can have a look at it, and -- and if we still think that there's nothing more that we can do or, you know, our analysis of these events is very different, then we will write a final letter and we will usually say that we will look at anything else that the person sends us, but we may only acknowledge any further correspondence, because we have to draw a line. And we try and do that as sensitively as we can.

Here is some more information from the Ombudsman website.