Last week was Whistleblower Awareness Week and Whistleblowers UK and the All Party Parliamentary Group on Whistleblowing organised a two day event in Parliament on issues affecting whistleblowing.
I attended the two hour session aptly entitled Whistleblowing in Health care – a Lesson in Futility? It drew a wide selection of people from the UK and the Isle of Man including doctors, lawyers, judges, nurses and speak up guardians
These included Dr Chris Day , who has been fighting Lewisham and Greenwich Health Trust for ten years after reporting two avoidable deaths in the intensive care unit at Woolwich Hospital and Martyn Pitman, a consultant obstetrician and gynaecologist, who recently lost a case against Hampshire Hospitals Trust, reporting patient safety issues after a mother died giving birth in one of their hospitals. Both cases can be found in a series of articles on my blog.
But one of the most striking contributions came from Rob Behrens, the Parliamentary Ombudsman – an Establishment figure – and the Health Service Commissioner more familiar to my readers over the debacle in getting compensation for 3.5 million 50swomen who faced a six year delay in getting their pension.
In a short powerful speech he rightly lambasted the culture inside the NHS which is leading to the failure, ,persecution and character assassination of whistleblowing doctors and nurses who report patient safety issues.
Describing the system in the NHS as “command and control”, he described the contrast between the management of trusts boasting to him how open their institutions were only to find the opposite when he talked to people lower down the food chain dealing with the complaints.
He pleaded for a more ” collegiate NHS” where managers and staff worked together rather than against each other. he wanted ” fundamental change” in the leadership of the NHS.
But his speech also revealed how impotent his role is in handling healthcare issues. He pointed out that the Ombudsman was handicapped by outdated legislation, couldn’t deal with staff issues unlike other Ombudsmen, was unable to take any initiatives himself, and couldn’t force the NHS to make changes even he wanted them to do so. None of this does his reputation with the public any good. I have only covered one of his cases. You can read about it here. Health warning it is a very grim story and the Ombudsman could only partially investigate it.
Northern Ireland Ombudsman has greater powers
How he must envy Margaret Kelly, the Northern Ireland Ombudsman, set up under more modern legislation, who has and uses her powers to initiate investigations. A report here on my blog shows how she took on private company Capita and its failure to treat disabled people properly applying for Personal Independence Payments.
At the moment plans to get a new law to protect whistleblowers ( they are also covered by outdated legislation which trusts can use lawyers to get round its provisions) is stalled. So is any legislation to give the Parliamentary Ombudsman fresh powers or rationalise the plethora of other ombudsmen in this country. I suggested one step that could be taken in election year would be for whistleblowers to press the major parties to include a pledge to legislate in their manifestos. There is an “oven ready” bill already by Whistleblowers UK to reform the system which could be the basis for fresh change. It is time we ended talking and took some action.
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I took a complaint about Derbyshire NHS Trust to the PHSO. An investigation was carried out and the PHSO obtained independent clinical advice. Based upon that advice, the investigator told me she was going to uphold my complaint. She drafted a report in my favour and wrote to both me and DHCFT’s CEO, Mr Trenchard, putting us on notice to expect receipt of the draft report ‘any day now.’
Unexpectedly, following this, I was suddenly told the investigator had left the Ombudsman and my complaint was to be allocated to a new investigator. The draft report that upheld my complaint was destroyed and a new draft report was produced that no longer upheld any of my complaint. It upheld treatment that was in breach of NICE protocols and it excluded the independent clinical advice obtained by the Ombudsman that had supported failings in my care.
I later found out that the investigator hadn’t left the Ombudsman at all. I also found out that Mr Steve Trenchard (DHCFT’s CEO) was close friends with the Ombudsman’s Managing Director, Mick Martin, himself a former Executive Director of DHCFT and who was now responsible for overseeing all case decisions at the Ombudsman.
In 2015, Mr Trenchard and Mr Martin were both defendants in an employment tribunal that found they had colluded to ‘cover up’ misconduct by individuals at DHCFT and they had worked together to ‘prevent a proper independent investigation’ in order ‘to protect professional reputations’. Mr Trenchard and Mr Martin were subsequently removed from their posts in disgrace in 2015 after they were found not fit and proper for public office (to put it politely). I feel they had done exactly the same with my complaint, both being the chief persons responsible for it, there can be no other explanation for how the draft report had changed into a fundamentally different one in those peculiar circumstances. It was an appalling coincidence and failure of justice for my complaint against DHCFT to be taken on by the PHSO at a time when Mick Martin worked there and was able to intervene in the case so that it wasn’t upheld in order to protect his former colleague and workplace from my legitimate complaint. Little did I know at the time that once the PHSO had made its deeply flawed (manipulated) decision it was to become an albatross around my neck.
https://patientcomplaintdhcftdotcom.wordpress
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Shocking. This must have been a devastating experience. For my part I complained to the Ombudsman about Rebecca Hilsenrath’s conduct at the EHRC. Some months later, and before my complaint was resolved, it turned out that Hilsenrath had been appointed CEO of the Ombudsman😂
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I’ve clicked on your link but it’s dead. Can we compare notes about the Ombudsman and some of its “investigators”? My email is mark.benney[at]gmail.com
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Sorry, for some reason the link wasn’t complete. Here is the correct one: https://patientcomplaintdhcftdotcom.wordpress.com/
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But the Ombudsman seems to apply the “personnel” exclusion under the 1967 Act somewhat narrowly. I complained about lying and suppression of evidence by a Permanent Secretary only to be told that because the context or subject matter related to the HR issue of performance management the Ombudsman cannot investigate. It’s also noteworthy that if you are a civil servant complaining to the Civil Service Commissioners about a breach of the Civil Service Code – eg lying – you will be told that HR issues are subject to a blanket exclusion. In other words your only real remedy is to go to the Employment Tribunal with a discrimination and/or whistleblowing and/or constructive dismissal claim where (a) you will probably lose or (b) you will be forced to accept an inadequate settlement on pain of complete financial ruin if you decide to fight.
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Every year the Ombudsman produces spreadsheets regarding his investigative work. Let us examine how this relates to the Countess of Chester NHS Trust, now subject to the Thirlwall Inquiry.
2019-22. 2022-23
Complaints received 91. 51
Decided after primary investigation. 20. 8
Resolved with complainant agreement. 3. 1
Accepted for detailed investigation 9. 1
Complaint fully upheld. 1. 0
Complaint partially upheld 4 0
Complaint not upheld 5 0
What this shows is that, in the post covid era, the chances of the Ombudsman actually conducting an investigation are very small. At the scrutiny session of the Ombudsman on 14th November 2023, the Ombudsman, Rob Behrens, came in for some detailed questioning by John McDonnell MP. There are two very interesting extracts of this scrutiny on the website PHSO The True Story in the blog about the International Ombudsman Institute. Here you can watch the Ombudsman praising the virtues of a Peer Review by the Greek Ombudsman (in the first clip) yet telling the same committee that he is not of the opinion his work should be reviewed by another Ombudsman (second clip).
I would urge your followers to view both clips or, even better if they have the time, the official recording of the whole scrutiny session on the PACAC website.
The Ombudsman does indeed have a poor reputation. The percentage of investigations and upholds as indicated at the Countess of Chester NHS Trust is pretty well mirrored across all his NHS investigations. Add to this what appears to be his response to the 50’s women’s pensions issues as you have previously reported, I think it is fair to say that there is a need for a revised Parliamentary and Local Government Ombudsman with increased powers.
However, having been an Ombudsman user in the past and now an Ombudsman watcher, it is clear to me that, with the NHS reportedly being the largest employer in Europe, it needs its own overarching complaints investigation organisation with power to examine complaints arising from both patients and staff. That way we might get some ‘joined up thinking’ and who knows, there might even be less litigation against the NHS in time. Careful thought needed. Best way to examine it is through a public inquiry
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