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EXPOSED! THE PHSO's secret attempts to spin out of my criticismS

Bruce Oliver Newsome, Ph.D., 20 November 2017


On 13 August 2017, ConservativeHome published my 
article criticising the Parliamentary & Health Service Ombudsman (PHSO). 


The next day, the PHSO telephoned the editor of ConservativeHome about supposed "factual inaccuracies" and demanded corrections. The editor rightly asked the PHSO to submit its claims in writing, for forwarding to me. The PHSO took three days to compose its claims: these turned out to be spin and misdirection, which failed to intimidate me or the editor, who let my article stand, unedited. 


I invited the PHSO to allow the correspondence to be published, or to engage with me in a public debate, but the PHSO refused. The correspondence can now be revealed, thanks to a Freedom of Information request (by somebody I don't know), which has been published online


More interesting is what the correspondence reveals about the PHSO's colossal investment in protecting its own reputational risk rather than the health risks of ordinary Britons.


The FOI request revealed the PHSO's internal email communications - marked "sensitive", between at least seven officers at the PHSO, over three days, discussing how to rubbish my article - one of them described me as "a fairly random columnist as opposed to one of their heavier hitters." 


[These officers included: Head of External Communications (Maria Mansfeld); an unnamed Senior Communications Officer (for some reason, the PHSO redacted the names of this sender and the recipient); Director of Insight and Public Affairs (Warren Seddon); Chief Executive Officer (Amanda Campbell); Executive Director of External Affairs and Strategy (Shareena Merzi); Executive Director External Affairs and Insight (Alex Robertson); and Executive Director of Operations and Investigations - and Deputy Ombudsman (Rebecca Marsh).]


Why should the PHSO need so many executives dedicated to the PHSO's external reputation? This distortion of roles helps to explain why the PHSO investigated less than 5% of the public's complaints to the PHSO about health and social care in any year - this was one of the facts in my article that the PHSO was keen to spin: the secret emails reveal that Merzi wrote to her colleagues: "My only feedback is on the numbers. It's not that impressive quoting we investigate 4,000 of 100,000 enquiries (which is a bit of a misleading figure anyway) [a rate of 4%]. Could we say of the xx complaints we take a closer look at (assessment) we investigate xx or should we say something about increasing no [number] of investigations we do[?]"


The PHSO's investment in external affairs helps to explain why the PHSO cost the British taxpayer more than UKP37,000,000 in the most recent year, despite refusing more than 95% of complainants. The salaries of these particular officers have not been disclosed publicly, but the costs of the PHSO's personnel can be judged from the fact that the fees paid just to recruitment agencies in the most recent year accounted for nearly UKP600,000! 


Now, let's look at the PHSO's eventual correspondence with me. (As noted above, this can be revealed here only because it has been revealed already in the same third-party FOI request.) After three days of deliberations between at least seven officers at PHSO, the best the PHSO could do is to email to the editor of ConservativeHome a lot of misdirections, sleights of hand, and spin. The editor forwarded the email to me, for my comments. I replied with one email, which proved decisive - the PHSO refused to respond and withdrew from the correspondence.


I have reproduced my email below, original and unedited, where the PHSO's chosen excerpts from my article  are italicized, the PHSO's rebuttal is in normal text, and my counter-rebuttal  is CAPITALIZED:

[1.1 PHSO's chosen excerpt from my article:] ‘The ultimate authority for complaints against health and social care is the misleadingly titled Parliamentary & Health Service Ombudsman (PHSO), which is neither accountable to Parliament, nor responsible for any particular health or care service. No parliamentary committee or politician can overrule it. The PASC can only examine its reports.’

[1.2.1. PHSO's attempt to rebut the excerpt:] Contrary to the claim in the blog post, we are accountable to Parliament and our work is scrutinised by the Public Administration and Constitutional Affairs Committee.

[1.3.1. My counter-rebuttal:] THIS IS SPIN: THE PHSO USES THE TERM "SCRUTINIZED", IN REPLACEMENT OF MY TERM "EXAMINE", THEN THE PHSO UNJUSTIFIABLY CLAIMS THAT "WE ARE ACCOUNTABLE" TO THE PASC - NO, THIS IS NOT ACCOUNTABILITY. MY FACT STANDS: THE PHSO'S REPORTS CAN BE EXAMINED BY THE PASC BUT CANNOT BE OVERRULED; NOBODY AT PARLIAMENT OR GOVERNMENT CAN ORDER THE PHSO TO INVESTIGATE ANYTHING, CORRECT ANYTHING, FIRE ANYBODY, CHANGE ITS STRUCTURE, CHANGE ITS PROCESSES, OR ANYTHING ELSE THAT WOULD COUNT AS AUTHORITY OVER THE PHSO. IT IS FUNDED FROM PUBLIC MONEY, BUT IS NOT PUBLICLY ACCOUNTABLE, EXCEPT TO BAD PRESS

[1.2.2. PHSO's attempt to rebut the excerpt:]  We were 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. We are not part of government or the NHS in England. We are neither a regulator nor a consumer champion.

[1.3.2. My counter-rebuttal:] I AGREE, AND THIS IRONICALLY PROVES MY POINT. THE PHSO IS NEITHER A REGULATOR NOR A CONSUMER CHAMPION, THUS IT IS USELESS FOR THE VAST MAJORITY OF COMPLAINANTS

[2.1 PHSO's chosen excerpt from my article:] ‘As you would expect, the PHSO’s unaccountability encourages the PHSO’s irresponsibility. The PHSO usually refers complainants back to any of those 70-odd other organizations, until the complainants exhaust whatever complaints system exists at the organisational level – or (more commonly) the complainant gives up on a costly, confusing, and unrewarding system.’


[2.2.1. PHSO's attempt to rebut the excerpt:] We are the last port of call for complaints that have not been resolved by the NHS in England and UK government departments. We investigate complaints fairly, robustly and without taking sides

[2.3.1. My counter-rebuttal:] SPIN - CONTRADICTED BY THE HISTORY OF FRUSTRATED COMPLAINANTS WHO RECEIVE NO INVESTIGATION AT ALL. THE ONLY PART I AGREE WITH IS, YES, THE PHSO IS THE "LAST PORT OF CALL"! THAT'S WHY THE PHSO'S FAILURES ARE SO FRUSTRATING FOR HUNDREDS OF THOUSANDS OF BRITONS.

I CHOSE NOT TO MENTION IN THE ARTICLE (IN ORDER TO AVOID BRINGING FURTHER PAIN TO THE FAMILY) THE TRAGIC CASE OF SAM MORRISH, THE TODDLER WHO DIED IN 2010 DUE TO MALPRACTICE; THE PHSO REFUSED AND MISHANDLED HIS PARENTS' COMPLAINTS UNTIL FINALLY REACHING A JUDGMENT IN 2014, WHICH WAS FULL OF FACTUAL ERRORS - THE REPORTING DRAGGED ON INTO 2016 - SCOTT MORRISH IS STILL CAMPAIGNING FOR CHANGE - HOW WAS THE PHSO "FAIR AND ROBUST" IN THAT CASE? 

THE PUBLIC MAKES HUNDREDS OF THOUSANDS OF COMPLAINTS AGAINST HEALTH AND SOCIAL CARE PER YEAR; THE PHSO INVESTIGATES JUST A FEW THOUSAND PER YEAR; THE OVERWHELMING EXPERIENCE FOR COMPLAINANTS IS DISSATISFACTION. I COULD HAVE INCLUDED IN THE ARTICLE THE ORGANIZATIONS SET UP BY DISSATISFIED COMPLAINANTS SPECIFICALLY TO LOBBY AGAINST THE PHSO, SUCH AS "PHSO THE FACTS" (http://phsothefacts.com/ - I DID NOT INCLUDE THEM BECAUSE I DID NOT WANT TO APPEAR TO REPRESENT THEM, AND I DON'T REPRESENT THEM; I SPEAK AS AN EXPERT ON RISK MANAGEMENT: AS I SAID IN THE ARTICLE, UNACCOUNTABLE SYSTEMS ARE RISKIER SYSTEMS


[2.2.2. PHSO's attempt to rebut the excerpt:] The Health Service Commissioners Act sets outs the conditions under which we can accept complaints about the NHS. The law prevents us from conducting an investigation unless we are satisfied the NHS complaints process has been used and exhausted, or it was not reasonable to expect the complainant to have done so. It essential that NHS organisations have an had opportunity to resolve the issue locally before people bring a complaint to us.

[2.3.2. My counter-rebuttal:] THIS RULE IS OPEN TO INTERPRETATION AND THENCE ABUSE - THE PHSO INVESTIGATES A TINY FRACTION OF COMPLAINTS RECEIVED; ITS INFERENCE HERE IS THAT ALL OTHER COMPLAINTS ARE IMPROPER, AND MUST BE BOUNCED BACK TO SOME OTHER AUTHORITY, BUT THAT IS NOT MOST COMPLAINANTS' EXPERIENCE - THE PHSO AND THE OTHER 70-ODD AUTHORITIES ARE ENGAGED IN A MERRY-GO-ROUND OF PASSING THE BUCK BETWEEN THEM, FINDING FAULT WITH COMPLAINTS, LOSING CORRESPONDENCE, DELAYING CORRESPONDENCE, REASSIGNING CASE OFFICERS - OR DECLARING THAT SOME OTHER AUTHORITY HAS RESPONSIBILITY FOR IT - UNTIL MOST COMPLAINANTS GIVE UP. YES, THE OTHER ORGANIZATIONS SHOULD BE GIVEN FAIR CHANCE TO RESPOND, BUT THE PHSO EXPECTS US TO BELIEVE THAT AROUND 95% OF COMPLAINANTS TO THE PHSO HAD FAILED TO GIVE THE PERTINENT ORGANIZATION CHANCE TO RESPOND. THIS WOULD SEEM AN EXCESSIVE PROPORTION, EVEN IF I HAD NOT SEEN ALL THE EVIDENCE FROM PHSO-THE-FACTS AND ELSEWHERE OF DELIBERATE FRUSTRATION OF LEGITIMATE COMPLAINTS.


[2.2.3. PHSO's attempt to rebut the excerpt:] We publish detailed information on our website clearly explaining our role and how we work as well as investigation summaries which set out what our investigations have achieved.

[2.3.3. My counter-rebuttal:] SPIN, CONTRADICTION, AND IRONICALLY PROVES MY POINT: AS I WROTE IN THE ARTICLE, THE PASC HAS ADMITTED THAT THE SYSTEM IS CONFUSING - THE PHSO CONTRADICTS ITSELF ROUTINELY BY ADMITTING THAT IT RECEIVES HUNDREDS OF THOUSANDS OF COMPLAINTS WHILE CLAIMING THAT ALMOST ALL OF THESE COMPLAINTS SHOULD HAVE BEEN DIRECTED ELSEHWERE; THEN WHY ARE COMPLAINANTS SO CONFUSED AS TO COMPLAIN TO THE PHSO? A CONFUSING AND IRRESPONSIBLE SYSTEM CANNOT BE FIXED BY A WEBSITE - IT MUST BE RESTRUCTURED.

[3.1 PHSO's chosen excerpt from my article:] ‘The PHSO traditionally has investigated only one per cent of complaints – as if 99 per cent of complainants had the time and motivation to complain unnecessarily. In 2013, Mellor suddenly promised a ten-fold rise in the number of PHSO investigations, but 10 per cent is as arbitrary as one per cent. The PHSO actually investigated less than eight per cent in the subsequent fiscal year, or merely 2,199 complaints; the NHS alone received 175,000 complaints that year.’


[3.2.1. PHSO's attempt to rebut the excerpt:] In 2016-17, we considered over 30,000 complaints and fully investigated more than 4,000 cases. Where we can, we will seek to resolve complaints and provide complainants with answers sooner, without the need for a full investigation.

[3.3.1. My counter-rebuttal:] OH! THE DEFT HANDLING OF STATISTICS! NOTE THAT NO TOTAL IS GIVEN FOR ALL COMPLAINTS RECEIVED - IN FACT, 120,000 WERE RECEIVED THAT YEAR, OF WHICH 25% WERE "CONSIDERED", WHICH DOES NOT MEAN INVESTIGATION, IT MEANS LIMBO BETWEEN OUTRIGHT REJECTION AND INVESTIGATION. WHAT IS AVERAGE PERIOD AND MEDIAN PERIOD BETWEEN A COMPLAINT RECEIVED AND HELD IN CONSIDERATION, LET ALONE RESOLVED? ANECDOTAL EVIDENCE SUGGESTS MORE THAN A YEAR, BUT THE PHSO PROVIDES NO DATA FOR ITSELF.

NOTE THAT NO PROPORTION/RATE IS GIVEN FOR THE NUMBER OF CASES INVESTIGATED AS A PROPORTION/RATE OF ALL COMPLAINTS RECEIVED! THE PHSO WAS INVESTIGATING 3% OF COMPLAINTS RECEIVED IN 2016-17! THAT'S A SMALLER PROPORTION THAN IN 2013!

NOTE ALSO THAT THE PHSO HAS NOT RESPONDED TO MY MAIN POINT THAT THE RATE OF INVESTIGATION IS ARBITRARY: IN 2013, JULIE MELLOR SAID SHE WOULD INVESTIGATE 10% RATHER THAN 1% - WHY SET A RATE? WHAT IS THE CORRECT RATE? WHY WAS IT 1% BEFORE 2013, THEN PROMISED AT 10% IN 2013, BUT ACTUALLY 8% IN THE SUBSEQUENT YEAR? WHY WAS IT 3% IN THE MOST RECENT YEAR? THESE RATES ARE ARBITRARY, UNEXPLAINED, AND UNACCOUNTABLE. THE PHSO SHOULD BE INVESTIGATING ANY PROPER COMPLAINT - THE PUBLIC OVERWHELMINGLY SAY THAT THE PHSO FRUSTRATES PROPER COMPLAINTS. WITHOUT ACCOUNTABILITY, THE PUBLIC HAS NO WAY TO KNOW WHETHER THE PHSO IS INVESTIGATING THE PROPER PROPORTION OF ALL COMPLAINTS RECEIVED.


[3.2.2. PHSO's attempt to rebut the excerpt:] Of the 30,000 complaints we handled in 2016-17, three quarters weren’t ready for us to look into. When people bring complaints that aren’t ready for us, we give them advice on how best to progress their complaint.

[3.3.2. My counter-rebuttal:] THIS IS SUBJECTIVE AND UNACCOUNTABLE - SINCE THE PHSO IS UNACCOUNTABLE, NOBODY CAN EXAMINE HOW THE PHSO DECIDES WHEN IT BOUNCES A COMPLAINT BACK TO THE COMPLAINANT; THUS NOBODY BUT THE PHSO DECIDES WHAT IS A PROPER COMPLAINT; THUS EACH JUDGMENT IS AN UNACCOUNTABLE JUDGMENT

THE PHSO'S CONCLUSION THAT "WE GIVE THEM ADVICE ON HOW BEST TO PROGRESS THEIR COMPLAINT" IS RICH - AS I WROTE IN THE ARTICLE, IT TELLS ALMOST ALL COMPLAINANTS TO EXHAUST WHATEVER COMPLAINTS SYSTEM EXISTS AT ANY OF THE 70-ODD OTHER AUTHORITIES, EVEN IF THE COMPLAINANT IS COMPLAINING ABOUT BEING FRUSTRATED BY THOSE OTHER AUTHORITIES; THE PHSO DOES NOT WORK WITH COMPLAINANTS TO REACH RESOLUTION, IT DOES NOT CHAMPION THE COMPLAINANT'S COMPLAINT AGAINST ANY OTHER AUTHORITY, IT JUST TELLS THE COMPLAINT TO GO ELSEWHERE - THIS DOES NOT COUNT AS "ADVICE ON HOW BEST TO PROGRESS THEIR COMPLAINT"


[4.1 PHSO's chosen excerpt from my article:] ‘The PHSO routinely fails to acknowledge complaints, claims that complaints are incomplete or improper, misaddresses responses, or reduces or reinterprets complaints. The complainant has no right of appeal against the PHSO. The PHSO dedicates no case officer to a complaint – thus, complainants are forced to deal with a different correspondent with almost every reply


[4.2.1. PHSO's attempt to rebut the excerpt:] We handled over 120,000 enquiries in 2016-17, helping direct complainants to where their complaint could be most quickly resolved

[4.3.1 My counter-rebuttal:] REPETITIVE SPIN AND INCREMENTALISM: TELLING ALMOST ALL COMPLAINANTS THAT THEIR COMPLAINT IS IMPROPER, WITHOUT CHAMPIONING THEIR COMPLAINT TO THE RESPONSIBLE RECIPIENT, WHICH IS OFTEN THE SUBJECT OF COMPLAINT, IS NOT "HELPING" COMPLAINANTS, IT IS FRUSTRATING THEM

[4.2.2. PHSO's attempt to rebut the excerpt:] We investigate unresolved complaints fairly and robustly, without taking sides

[4.3.2 My counter-rebuttal:] THE CLAIM OF "FAIRLY AND ROBUSTLY" IS UNPROVEN - THIS STATEMENT COUNTS AS THE PHSO'S OWN HEARSAY, NOT EVIDENCE; AND CANNOT BE PROVEN UNTIL THE PHSO IS ACCOUNTABLE. 

THE PHSO DOES TAKE SIDES: JULIE MELLOR RESIGNED IN 2016 AFTER HER DEPUTY SIDED WITH A FORMER COLLEAGUE AT A NHS TRUST WHO HAD BEEN ACCUSED OF SEXUAL HARASSMENT


[4.2.3. PHSO's attempt to rebut the excerpt:] All complaints accepted for investigation are assigned to a named caseworker.

[4.3.3 My counter-rebuttal:] THIS STATEMENT IS SUCH A SLEIGHT OF HAND THAT I AM ANGERED: ONLY THE FEW THOUSAND COMPLAINTS ACCEPTED FOR INVESTIGATION ARE ASSIGNED TO A NAMED CASEWORKER! THE OTHER 97% OF COMPLAINTS ARE HANDLED BY A DIFFERENT PERSON WITH PRACTICALLY EACH CORRESPONDENCE, AS I STATED IN THE ARTICLE

[4.2.4. PHSO's attempt to rebut the excerpt:] Our decisions are final, but if a complainant thinks our decision is wrong, they can request a review. We will review a case if the complainant is able to show us that: 
-      we made our decision based on inaccurate facts that could change our decision; or
-      they have new and relevant information that was not previously available and which might change our decision; or
-      we overlooked or misunderstood parts of the complaint or did not take account of relevant information, which could change our decision.


[4.3.4 My counter-rebuttal:] SO HOW MANY TIMES HAS THE PHSO EVER AGREED WITH A REQUEST FOR REVIEW? I BET THE NUMBER IS CLOSE TO ZERO - I HAVE NEVER SEEN THE PHSO PROVIDE ANY DATA ON ITS RATE OF ADMISSION OF A REQUEST FOR REVIEW.

[5.1 PHSO's chosen excerpt from my article:] ‘If the PHSO deigns to investigate at all, it refuses to investigate persons – only the organisations that have failed to satisfy complainants locally. In fact, the subjects of complaints are usually anonymized in reports. Consequently, the worst that the organisation can expect is a ruling that “mistakes were made,” for which it should apologise and perhaps compensate (to the inconsequential tune of a few thousand pounds), but no particular person is ever named as responsible.’

[5.2.1. PHSO's attempt to rebut the excerpt:] Legislation prevents us from investigating individuals. However, where our investigation into what happened finds individual failure, referral is made to the relevant professional body

[5.3.1. My counter-rebuttal:] THIS PROVES WHAT I WROTE IN MY ARTICLE: THE PHSO DOES NOT INVESTIGATE INDIVIDUALS - SO CANNOT HOLD INDIVIDUALS ACCOUNTABLE. 

HOW MANY REFERRALS DOES THE PHSO MAKE "TO THE RELEVANT PROFESSIONAL BODY"? THE PHSO DOES NOT PROVIDE ANY DATA. 

HOW DOES THE PHSO ENSURE THAT THE RELEVANT PROFESSIONAL BODY INVESTIGATE THE REFERRAL? IT DOES NOTHING BUT REFER. 

IN THE SAM MORRISH CASE, ONLY ONE NURSE WAS EVER HELD ACCOUNTABLE AFTER A REFERRAL FROM THE PHSO - AFTER YEARS OF FRUSTRATING THE POOR PARENTS' COMPLAINTS.

JOURNALISTS AND POLICE HAVE PROVEN QUICKER AND MORE RELIABLE IN EXPOSING MEDICAL MALPRACTICE, BUT THEY ARE NOT FOCUSED ON IT; TO RELY ON THEM WOULD BE UNSYSTEMATIC. IN MANY CASES, NO HEALTH OR SOCIAL CARE AUTHORITY INVESTIGATES (OR REVERSES IT MISTAKEN RATING) UNTIL AFTER JOURNALISTIC EXPOSURE OR CRIMINAL INVESTIGATION.


[5.2.2. PHSO's attempt to rebut the excerpt:] We use wide ranging powers to compel evidence from bodies and in 2016-17 used this to make over 1500 recommendations for things to be put right

[5.3.2. My counter-rebuttal] AND YET HEALTH AND SOCIAL CARE PERFORMANCE IS GETTING WORSE. 1,500 RECOMMENDATIONS IN 2016-17 COMPARES TO HUNDREDS OF THOUSANDS OF COMPLAINTS PER YEAR, WITHOUT IMPROVEMENT 


[5.2.3. PHSO's attempt to rebut the excerpt:]  Where we uphold complaints the NHS must act on our recommendations, or can be required to account for why they will not to Parliament.

[5.3.3. My counter-rebutal:] WHEN HAS THIS EVER HAPPENED?


[5.2.4. PHSO's attempt to rebut the excerpt:] We regularly share findings from our casework to help Parliament scrutinise public service providers. We also share our findings more widely to help bring about improvements in public services and complaint handling.

[5.3.4. My counter-rebuttal] THE PHSO LOVES THAT TERM "SCRUTINIZE"! "SHARING FINDINGS" IS NOT ACCOUNTABILITY 

[6.1 PHSO's chosen excerpt from my article:] ‘For some reason, the Secretary of State and thence the PASC touted the system in 2014 for investigating airline accidents as their exemplar, but investigation is a purely reactive solution, and accidents are only one extreme form of failure, even if airline risks and health risks were analogous (they are not). In 2015, the PASC, in consultation with Hunt, recommended “a national independent patient safety investigation body,” but specified the PHSO by another name.’


[6.2.1. PHSO's attempt to rebut the excerpt:] The 2015 recommendation resulted in the creation of the Healthcare Safety Investigation Branch (HSIB), which came into operation in April 2017. It is a completely separate body to PHSO which conducts  no blame  investigations  intended solely for systemic learning to improve patient safety. PHSO’s role is to establish whether individual complainants have experienced un-remedied injustice.  

[6.3.1. My counter-rebuttal:] I NEVER SAID HSIB WAS PART OF PHSO; HSIB IS A NO-BLAME INVESTIGATOR, SO IS USELESS FOR ACCOUNTABILITY. 

AS I WROTE IN THE ARTICLE, I WANT A SINGLE ACTOR RESPONSIBLE FOR BOTH COMPLAINTS AND INVESTIGATIONS, AND I WANT IT INSIDE THE DEPARTMENT OF HEALTH, SO THAT IT WOULD BE ACCOUNTABLE TO PARLIAMENT; QUANGOS ARE NOT ACCOUNTABLE TO PARLIAMENT.