The response to Covid has had countless pernicious effects. But one you are unlikely to have heard about in the news is the damage done to one of England’s most important public bodies.
Since Covid, you are far less likely to have your complaint about the NHS investigated by the Parliamentary and Health Service Ombudsman (PHSO). The vital service offered by the PHSO has been quietly – and unjustly – downsized to help it tackle a large backlog of complaints caused by lockdowns and other restrictions.
The decision by the PHSO to greatly limit the number of complaints it will now investigate was taken not by our elected representatives but by the Ombudsman himself and those closest to him in the organisation, which is independent from Government. There has been little public and media scrutiny of the decision and its consequences, in particular whether a different course of action could and should have been taken.
The most obvious harmful effect of the change is that many more members of the public are now being denied justice than they were before Covid. But there are other serious effects. Fewer health service providers and those in charge of them are being held to account. In the PHSO’s scramble to meet its self-imposed performance targets, many providers today face no penalties for their – often avoidable – failures. Consequently, they are no longer told by the PHSO to learn from their mistakes. Patients are now more likely to face risks which would have been addressed and greatly reduced before the Government’s self-serving reaction to Covid.
How, exactly, did we reach this point, and could it have been avoided? And when – if ever – will the public have access to the Ombudsman service it pays for and needs?
Many receive good care from the NHS. But when things go awry and if patients are unhappy with the way an NHS provider answers their complaint they can ask the PHSO to step in. Over 80% of its work concerns healthcare complaints. It handles tens of thousands of complaints each year. Although it investigates a far lower number than that, since it was set up in 1993 it has righted many wrongs and helped improve the NHS. It plays a crucial role in the health of the nation. But it has never been an easy job. Even before Covid its workload was high. Complaints can be complex and caseworkers daily face a series of difficult decisions about the many complaints they are handling.
The service is far from perfect, of course. Over the years it has received much criticism, much of it justified, but some selective and unfair.
For many of those who receive poor service from the NHS and who then complain to the PHSO, in April 2021 things suddenly got worse. A large swathe of complaints began to be summarily struck off the PHSO’s books. Back in March 2020, when Boris Johnson announced the first lockdown, NHS chiefs decided not to accept complaints from the public between April and June. And amid the sense of alarm intentionally generated by our Government, the NHS focused its attentions on Covid. The PHSO, in turn, suspended the processing of complaints in part because it was unable gather the information it needed from the now otherwise preoccupied NHS.
And, as with most companies and organisations across the country, the PHSO had to make the rapid shift to working from home. For the PHSO this was unlikely to have been easy. It required moving most of its operation into the homes of its staff, while fulfilling its obligation to protect the privacy of complainants’ data.
For three long months the processing of complaints by PHSO to decide which ones should be investigated and which ones reasonably rejected stopped. Those awaiting a decision on their complaint were held in limbo. While current cases were delayed, new complaints, needing assessment, began to stack up. On resuming its work in July 2020, the PHSO was further hampered. Covid restrictions meant the NHS responded more slowly to the PHSO’s queries than it had before the pandemic. If that wasn’t enough, paper-only files it needed from Government departments could not be accessed because everyone, everywhere was working from home.
The PHSO’s work in general was slower, further adding to the backlog. Its staff were less productive, with some having to balance working from home with educating children and supporting elderly relatives. To make matters worse there were technical issues. Cases were not correctly tracked and data monitoring was negatively impacted, hindering parliamentary oversight.
As a consequence of all this, the PHSO resolved far fewer complaints and the backlog of complainants waiting for an initial decision again grew. Rather than the usual three or four months, many had to wait up to a year. A sting in the tail was that – while the precise causes remain unclear – as Covid declined, the number of new complaints increased.
By the Spring of 2021, the PHSO was in deep trouble, with a backlog of over 3,000 complaints. It aimed to solve the problem in several ways: increasing productivity by improving its internal processes, requesting more money to take on more staff, and – most controversial of all – by inventing a way to reject a far higher percentage of complaints.
It did this by deciding to automatically turn down complaints it said were less serious. The PHSO uses a “Severity of injustice scale“. For those deemed to be on levels 1 or 2, on a scale of 1 to 6, the delete key was hit. While some complaints are clearly more serious than others, even if the individual had evidently experienced an injustice which caused him or her pain and distress, often over a period of time, many would no longer receive even an apology. Neither would the NHS provider be answerable for its failure. No improvements in its services would be made to help protect others.
The severity of injustice scale, however, appears to have been originally developed not to assist in the initial assessment of a complaint, as it is now being used, but to help determine the amount of financial compensation payable, if any, if a complaint is upheld. But now it is deployed to offload thousands of complaints.
On the back of this somewhat vague scale of severity, by mid-2021 thousands of letters were – and still are – being sent to complainants informing them of the bad news. Not only had they received poor care and waited a long time for a decision, nothing would be done to help them.
In the letters, the PHSO explicitly blames Covid. And, at least in some letters, it strongly suggests it now only investigates complaints involving an avoidable death or prolonged pain. But this appears to be untrue. The scale itself shows it is still supposed to investigate a far wider range of failures than is claimed.
England no longer has a full Healthcare Ombudsman service. To deal with the fallout from the disastrous response to Covid, it is refusing to assist many thousands of people who have been poorly treated. This is despite it still claiming it will “look into complaints where someone believes they have experienced an injustice or hardship because an organisation has not acted properly, or has given a poor service and not put things right.”
Whether PHSO’s decision is at odds with the plethora of legislation on which its powers rest is another question.
The PHSO has came under fire for its radical change of approach. In March this year, the House of Commons Public Administration and Constitutional Affairs Committee, which oversees the PHSO, said it is “concerned with the continued approach of not processing complaints at Levels 1 and 2 on the severity of injustice scale, and the lack of ambition to return to the previous patterns of complaint-handling.” It asked the PHSO for evidence and further explanation to justify its approach. It is yet to receive a response.
While the PHSO is gradually reducing the backlog – or queue, as its Chief Executive prefers to call it – it is unclear when, or even if, its former service will be resumed. Far from encouraging is that, before Covid, the number of complaints accepted for further investigation was declining each year.
The PHSO says it is only doing what other health service ombudsman organisations in other countries are doing when faced with the same problem. In its service update on its website, informing the public of the change, it merely states, rather imperiously, that it has limited resources and now only looks into more serious complaints. And it tries to discourage as many people as possible from complaining by creating doubt that the failure experienced is serious enough.
Could the PHSO have acted differently? It is unclear why, on top of boosting its workforce and improving efficiency – both of which are already helping – it cannot increase how long it takes to resolve each case. It appears to be a much fairer and sensible strategy. It is better that all injustices are investigated, even if that takes more time. And, rather than throwing to the wolves many of those the health service has wronged, if more investment by the Government would speed things along, it is something the PHSO should urgently seek.
The root cause of the problem is, of course, the Government’s response to Covid, along with its failure to implement long-needed Ombudsman reform. But those in positions of power and influence in the NHS and at the PHSO, including the Ombudsman himself, who are likely to have agreed with Covid policies rather than warn of the obvious damage they would cause, also bear a responsibility.
The Ombudsman, Rob Behrens, clearly has his hands full. Yet he is still often able to find time to roam the country, attending events about social justice and human rights, while keeping his followers updated on Twitter about his travels. In February he went to Ukraine, where he sat alongside President Zelensky. He has also introduced mandatory unconscious bias training at the PHSO. And, as a member of the “international ombudsman community”, is an ardent supporter of the United Nations, particularly its ‘Venice principles’, which, he says, “recognise the importance of the institution of Ombudsman as an integral part of a democratic system”. To many, though, with more pressing concerns, especially the thousands rebuffed by the organisation he is in charge of, and his caseworkers who are struggling to cope, all this may not be a good look.
David Hansard blogs here.