Introduction

The Parliamentary and Health Service Ombudsman, (PHSO) is a UK government agency, that was ‘set up by Parliament to provide an independent complaint handling service for complaints that have not been resolved by the NHS in England and UK government departments.’[1] The PHSO shares its findings from its casework ‘to help Parliament scrutinise public service providers.’ [2]The PHSO is not part of the government or the NHS in England. They are not a regulator. Their powers are set by The Health Service Commissioners Act, 1933.[3]

Our vision is a voice for improvement in public services through the provision of an independent, impartial and fair complaints handling service. 

The Parliamentary and Health Service Ombudsman

This post discusses my experience of the PHSO. It also asks whether the PHSO is really independent, or whether it is a government agency that protects other government agencies. Is the PHSO really a government body that is committed to impartiality and fairness, or is it’s support biased towards the big organisations?

How It Works

If you are unhappy with the final response that you receive from the NHS body, you can take your complaint to the PHSO, who may investigate it. You need to bring your complaint to the PHSO within twelve months of receiving your final response from the NHS body. You also need to have exhausted the local complaints procedure first, and have received your final response from the NHS agency. The PHSO triage team will assess your complaint, and decide whether or not to open an investigation. If the PHSO decide to investigate it, they will allocate your complaint to a ‘case-worker.’ The wait time for allocation can take months.

Once allocated, a case worker will begin an investigation. They will ask the NHS agency to submit their version of events with supporting evidence. The case worker will get an ‘independent’ medical opinion from a clinician, who specialises in the field that is relevant to your medical case. The case worker sends you a provisional decision, at which stage, you can add your thoughts. The PHSO will then send both parties a final investigation report.

Recommendations

The PHSO either upholds, partially upholds, or does not uphold complaints. If the PHSO upholds or partially upholds your complaint, it can make recommendations to the NHS body to put things right. Recommendations can include; offering an apology, or devising a plan to show how they will prevent the same failing from happening again. If you are unhappy with the outcome from the PHSO, and you acquire new medical evidence, you can ask them to look at their decision again. You must do this within twelve months of receiving their final report.

After you receive their review outcome, if you think that the PHSO has acted unfairly or illegally, you can apply for a Judicial Review from the courts. You must make an application for Judicial Review within three months of receiving your decision from the PHSO. This all sounds hunky dory, right? The reality, however, is that once the administrative cogs are set in motion, it is not as peachy as it sounds.

My Complaint

In 2015, in the early stages of my facial pain, I took a multi-agency complaint to the PHSO about two NHS Trusts, who stopped my antibiotics when I still had an infection, and a GP Practice, who refused to then refer me to another specialist. I had to seek private care to get the blood tests and medication that I needed. This cost me £18,000 of borrowed money, and I did not get a satisfactory response to my complaint from the NHS agencies.

I provided the PHSO with the blood tests from the NHS trust, which showed evidence of infection, the Ophthalmologist’s clinic letters; one acknowledging an infection was present, and the other instructing the GP to stop my antibiotics. I submitted the blood tests from the private hospital, showing that I still had an infection, and a statement from my MP, who I went to see at Parliament when this happened. He verified that he spoke to my then GP, who told him they would not refer me to another Ophthalmologist, unless I found a specialist, and if they agreed with their diagnosis. I requested that the NHS Trusts reimburse me my costs for blood tests and medication.

My Experience

I went into the PHSO process naively. Not dissimilar to how a child envisions Jesus Christ, as a bearded man in the sky, I imagined the Ombudsman to be a person sitting in the middle, holding the scales of justice, and giving both sides a decent hearing. That couldn’t be further from the reality. The Health Ombudsman, who in 2015, was Dame Julie Mellor, does not see the complaints. The complaints are dealt with by low-skilled case workers, who act more as secretaries. It is their managers and the medical teams behind the scenes, who make the decision.

It is not a ‘fair’ or equal set up from the start. I sought help from the Citizens Advice Bureau, who assisted me with my PHSO complaint form. However, even with advocacy support, I could not match up to the defence unions and powerful legal teams that the NHS bodies had to assist them. I was knocked out before the match had started.

‘Reasonable?’

‘Reasonable’ is a vague term, with far-reaching boundaries, when used in administrative processes. The bench mark that the PHSO uses to decide if there has been any malpractice or maladministration, is whether the NHS body acted ‘reasonably’ or not. An ophthalmologist, who admits a patient for intravenous antibiotics because there is clinical evidence of infection, and then discharges them, and instructs the GP to stop all her medication, without doing a blood test, to see if her infection markers have normalised, is not reasonable. For the GP to refuse further referrals, is unfair, and it left me in an unfathomable predicament.

I felt both aghast and outraged, (as was my advocate) when the PHSO sent me their provisional report. They had overlooked all of my evidence, and had defended the actions of the NHS Trusts and GP, as being ‘reasonable.’ Their report had gaping holes in it, and swerved the facts. Their ‘medical advisor,’ who had never examined me, said that my left ptosis, which was diagnosed by a Professor of Ophthalmology, after the first ophthalmologist had stopped my treatment, was not true. The PHSO also said that I ‘chose’ to seek private care. The NHS Trusts and GP stopped my medication and blood tests, and I became very ill. They also closed the doorway to any more referrals. I had no choice. My MP verified this in a statement, which the PHSO also disregarded.

PHSO Review

I asked the PHSO to look at their decision again, on the grounds that they overlooked my original evidence. I also submitted new medical evidence, along with a revised statement from my MP. It took them an unreasonable eleven months to complete their review. Their procedure was more dishonest than the first round. They discounted and undermined my new evidence, and neglected to honour my MP’s statement. The PHSO still concluded that I chose to spend £18,000 to get medication privately. They also said I could have moved GP’s, when I supplied them with data, that no other GP would accept me, as I was outside of their catchment area.

For a body that prides itself on values of ‘independence, ‘fairness,’ ‘excellence,’ and ‘transparency,’ their service did not reflect any of these principles. Their conduct represented dishonesty, unfairness, bias and a poor-quality service, with unreasonable wait times.

Judicial Review

Public bodies have to obey the law in how they take decisions and act. [4]

I quickly found a public law solicitor, who took on my case for Judicial Review. This was to challenge the fairness of the PHSO’s approach to handling my complaint. Judicial Review is ‘a court proceeding in which a judge reviews the lawfulness of a decision made by a public body. It challenges the way in which a decision was made, rather than the conclusion reached.’ [5]The courts can issue a quashing order, which overturns the decision, or a mandatory order, where the court directs the body to take a new decision. They can also award damages, if your human rights have been breached.

My Grounds For Judicial Review

The details of the matter being challenged were, The PHSO’s:

1. Failure to appropriately exercise its discretion in relation to my case;
2. Failure to take into account relevant considerations and/or taking into account irrelevant considerations;
3. Failure to undertake sufficient enquiries into why I was unable to seek the assistance of another NHS GP in January, 2014;
4.  Failure to ask the questions necessary and undertake a sufficient enquiry to discharge its decision-making process;
5.  Decision is unreasonable/irrational in the Wednesbury sense. The grounds for this are:

•  The decision was unreasonable or irrational in the Wednesbury sense;
•  Material error of fact;
• Failure to undertake a sufficient inquiry by asking the right questions or taking reasonable steps to acquaint themselves with relevant information;
• Taking into account irrelevant considerations or ignored relevant considerations;
• The discretion of the Respondent in the application of its policy was fettered.

The legal aid Agency awarded me legal aid to cover the first stages of Judicial Review; the Pre-Action Protocol and request for permission. We served notice on the PHSO and submitted a permission request for Judicial Review from the courts. The PHSO submitted a lengthy, (and late) defence. I received an offer from the court to attend an oral hearing, to request permission from the Judge. However, the process had exhausted me, so I declined the offer of an oral hearing. I dropped the case. This is how the system works. It asks people to jump through extensive loopholes, which grind down the individual’s resolve. These administrative processes do not support the individual having a voice.

Rob Behrens

I have been heartened by the reports from the current Health Ombudsman, Rob Behrens, who has come down hard, on the lies and cover-up culture within the NHS. I wondered whether he had transformed the culture within the PHSO; that they now acted more in accordance with their values and held NHS bodies more to account? However, according to people who I have spoken to, the service that the PHSO provide is even worse. They open even fewer investigations than they did in 2015. If this is correct, then the PHSO is guilty of the very thing that Rob Behrens is so scathing of; covering up failings, and not being accountable for mistakes.

Conclusion

My experience of the PHSO was crushing. They overlooked factual evidence, and did not look at my complaint honestly or fairly. They were heavily biased towards the NHS Trusts and GP Practice. Many others have had similar experiences to me. The PHSO, in my experience, is not an independent or impartial body. It is a body that is predisposed towards the state funded organisations. There is little listening or support for the little man/woman, who has suffered an injustice within the UK healthcare system. If there was, I would not be in the predicament that I am in now. The question that my and many other’s experience raises, is how can the PHSO really improve public services, if the PHSO does not look into complaints with real impartiality and fairness?

Foot Notes

[1] www.ombudsman.org.uk/who we are

[2] https://www.ombudsman.org.uk/about-us/who-we-are

[3] This comes from the same source as foot note 1 & 2.

[4] The Public Law Project; An Introduction to Judicial Review.

[5] https://www.judiciary.uk/how-the-law-works/judicial-review/

Advocacy Resources

These are UK wide agencies, who can provide advocacy support with the PHSO complaints process.

Citizens Advice

NHS Complaints Advocacy | POhWER

What we do | Healthwatch

Find your local Healthwatch | Healthwatch

York Advocacy Hub – NHS Advocacy

VoiceAbility | NHS complaints advocacy

Independent Health Complaints Advocacy (IHCA) – Advocacy for Bromley

Judicial Review Resources

These are useful resources for anyone wanting to challenge the fairness and legality of a PHSO decision.

Apply for a judicial review of a decision: Form N461 – GOV.UK (www.gov.uk)

Find a Solicitor – The Law Society

Judicial Review and other Public Law Challenges | Bindmans

Casework – Public Law Project

Check if you can get legal aid – GOV.UK (www.gov.uk)

Photo Credits: Tingey Law Firm, Mufid Majnun, Gr Stocks, Yaopey Yong, Lucas Santos, Brut Carniollus, Gayatri Malhotra, D Koi and Nsey Benajah on Unsplash. Anete Lusina, Katrin Bolovtsova and Sora Shimazaki and Brett Jordan on Pexels.