Case History 2 – discouraging evidence

This is the testimony of an individual, whose experience was that (Paragraph 63) “even when the relevant paragraphs of the National Framework have been quoted in correspondence, read out to them over the phone, or handed to them across a desk, PCT/SHA representatives simply refuse to look or listen to them.” This statement was submitted as evidence to a parliamentary report on the handling of complaints. (Parliament Commons Select Committee on Public Administration in July 2013.) and suggests that there is wide-spread non-compliance with the requirements of the National Framework. (Note that this case history relates to the implementation of the National Framework prior to 2013)

See also Case history 1 – Ian Johnson’s story

Case History 2: Primary Care Trust

46. This complaint concerns the funding of long-term care. I appreciate that this is a difficult and sensitive matter, but my complaint is not about the rights or wrongs of government policy: it is solely concerned with whether the policy was properly carried out.

47. In September 2009, my father suffered a severe stroke, and was admitted to hospital. By December 2009, it was clear that he would need on-going nursing care.

48. In January 2010 the Primary Care Trust (PCT) wrote that it would not fund my father’s nursing care.

49. The case has been subjected to an on-going [5] appeals process, including a so-called “independent” review by the Strategic Health Authority (SHA)

50. In September 2011, I referred the matter to the Parliamentary and Health Service Ombudsman (PHSO).

51. On 9 March, the PHSO wrote that it would not consider my complaint against the PCT and SHA on the grounds that it has already been reviewed by the SHA and that the SHA had “appropriately considered the National Framework and reached reasonable conclusions

52. In October 2012, the PHSO agreed to review its decision, but again did not uphold my complaint.

Comments on Case History 2: Technical background

53. The procedures governing Continuing Healthcare funding are laid down in the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care (The National Framework) and NHS Continuing Healthcare Practice Guidance (Practice Guidance).

54. The National Framework requires that the patient’s needs must be assessed by a Multi Disciplinary Team (MDT). MDTs fulfil that function by completing a document known as a Decision Support Tool (DST)

55. I eventually obtained a copy of the original DST that had been completed by the MDT in respect of my father. It differed in several key respects from the version that had been sent to me by the PCT. In particular the conclusion reached by the MDT was:

“… Mr *** needs demonstrate a primary healthcare need and a nursing home placement should be fully funded under continuing health care.”

56. From the DST, the National Framework, and Practice Guidance it is very clear that:

· The MDT recommended that my father should receive CHC funding

· a PCT must not reject an MDT’s recommendation [6]

· a PCT must not rewrite an MDT’s report [7]

57. By rewriting the MDT’s report and rejecting its recommendation, the PCT disobeyed the explicit instructions that had been issued by the Department of Health in the National Framework and Practice Guidance.

58. The PCT admitted in several letters that it had overturned the recommendation of the MDT, and that it was not unusual for it to do so. For instance:

“While NHS *** would desire to be able to ratify all recommendations made by Multi Disciplinary Teams (MDT) in relation to eligibility for NHS Funded Continuing Healthcare. The complexity of the process and the vast numbers of practitioners engaged in the process mean that this is not always possible.” [8]

Comments on Case History 2: The complaints process

59. The PCT persistently ignored the fundamental point of my complaint — that the Department of Health explicitly directs PCTs not to reject the recommendation of MDTs.

60. The “Local Resolution” process began in January 2010. The matter did not move up to the SHA until June 2011.

61. The SHA review panel also ignored the fact that the Department of Health explicitly directs PCTs not to reject the recommendation of MDTs.

62. Reports of meetings produced by the PCT and SHA invariably include words to the effect of “we properly considered the requirements of the National Framework”. This is demonstrably untrue (see ” Technical background to Case History 2″, above).

63. Even when the relevant paragraphs of the National Framework have been quoted in correspondence, read out to them over the phone, or handed to them across a desk, PCT/SHA representatives simply refuse to look or listen to them.

64. The appeals process is heavily biassed:

· the PCT panels are selected by the PCT

· dates and venues are chosen by the PCT

· in one instance I was offered two possible dates for an appeal hearing. One of them was while I was due to be away on business abroad. The panel on the only alternative date included one person who had been a member of the panel whose decision was the subject of the appeal!

· the so-called “independent” review panel was appointed by the Strategic Health Authority and was dominated by NHS staff.

· Minutes of panels are taken by members of PCT or SHA staff, and are often garbled to such an extent that they misrepresent what was actually said. At one meeting, when I produced a dictating machine to keep an accurate record of proceedings, the chairman immediately stopped the meeting.

The role of the Ombudsman

65. I understand that the role of the Ombudsman is the subject of a separate investigation by the select committee, to which I also intend to give a statement.

66. A key point of my statement will be that (according to the Ombudsman’s own figures)

· Less than 2% of all complaints were actually investigated

· Less than 1% of complaints were fully upheld.

67. Despite its assertion that “Our role is to investigate complaints“, and “We work to put things right“, its own figures show that the Ombudsman’s office fails to investigate complaints and does virtually nothing to put things right.

68. While the odds are so heavily stacked in favour of government departments and agencies, the Ombudsman’s office is counterproductive. It gives the illusion of being an independent arbiter, but by rejecting so many complaints it gives tacit approval to ongoing malpractice.

69. It is sometimes suggested that Judicial Review is an appropriate avenue for those who are not satisfied with the outcome of a complaint to the Ombudsman. Few private individuals can afford to take on an opponent for whom the odd £10,000 won’t even show up in the executive summary of the year’s accounts, so in my opinion, this suggestion is either naive or deliberately offensive.

Conclusions

70. Many officials are extremely reluctant to admit the possibility of error. This may lead to a mistaken but self-perpetuating belief that anyone who complains is doing so for dishonest reasons.

71. In some cases, the reluctance to accept the truth stretches to blatant dishonesty.

72. Dealing with some government departments is like fighting a war of attrition, in which the policy seems to be “if we stonewall for long enough, the complainant will give in”

73. Not all officials are quite as blatant as the one who told the ICA that “…it is impossible to distinguish the honest customers from the many thousands who claim that they have posted the relevant information to them but have not… “, but his “presumption of guilt” is all too common.

74. The financial incentives that drove the actions of the DVLA and PCT in my case histories are obvious. There are no balancing incentives for them to take complaints or appeals seriously.

75. So-called “independent” reviews may be independent in name only.

· The so-called “Independent Review Panel” in case history 2 was dominated by NHS employees.

· The Independent Complaints Assessor correctly predicted that the DVLA would ignore her recommendation, so her intervention served no useful purpose.

· The Ombudsman investigates only a tiny proportion of cases, and seems to be easily (perhaps willingly?) bamboozled by procedural smokescreens and technical jargon.

· The legal system provides very little protection against wrong-doing by government bodies. It is inappropriate for minor disputes and is difficult, time-consuming and expensive for major ones.

76. In both my case histories, representatives of the agencies concerned reacted to complaints/appeals by deliberately misrepresenting facts, with the intention either of obtaining or withholding money. If any private individual did this, they would be guilty of fraud. [9] If they acted with the consent or connivance of senior management, then the manager and the company would also be guilty of fraud.

· Officials involved should face immediate dismissal.

· I believe the police should be encouraged to investigate and take the same enforcement action against civil servants as they would against any other fraudsters.

77. The Independent Complaints Assessor and Ombudsman are notionally independent, but it is clear that they have far more empathy with the civil servants they are supposed to be investigating than with the members of the public they are supposed to be protecting.

May 2013


[1] http://www.ombudsman.org.uk/improving-public-service/research/customer-satisfaction-research-may-2010-april-2011/6

[2] DVLA repeatedly asserted that there is a legal obligation on an owner to contact DVLA if he/she does not receive an acknowledgement from DVLA after notifying the agency of a change of “keeper”, when no such obligation exists.

[3] Fraud Act 2006

[5] Although this matter has already been investigated by the PHSO, the PCT has issued several subsequent decisions covering different periods of time, each of which is the subject of a completely separate appeal.

[6] The National Framework paras 80-81:

[6] 80. Many PCT’s use a panel to ensure consistency and quality of decision-making. However a panel should not fulfil a gate-keeping function and nor should it be used as a financial monitor. Only in exceptional circumstances and for clearly articulated reasons, should the multidisciplinary team’s recommendations not be followed.

[6] 81. PCTs should not refer a case back or decide not to accept a recommendation simply because the multidisciplinary team has made a recommendation that differs from the one that those who are involved in making the final decision would have made, based on the same evidence.

[7] The Practice Guidance para 9.2:

[7] 9.2 … PCT decision-making processes should not have the function of:

[7] financial gatekeeping

[7] completing/altering DSTs

[7] overturning recommendations (although they can refer cases back to an MDT for further work in certain circumstances – see below).

[8] Letter from PCT dated 12 July 2010

[9] The definition of fraud does not specify that the perpetrator has to benefit from the misrepresentation: the acid test is whether the intention is that the victim suffers loss .

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