Response to recent PHSO letter

Your letter of 28th August 2014

Dear Mick,

Thank you for your recent letter in which you say you set out ‘definitive answers’ to the serious concerns I have been raising with your organisation for some time, but most recently detailed in my letter of 8th July 2014. As you state, prior to this letter, we met on 4th July to discuss how you intended to respond to the concerns.

As part of this discussion, we talked about the principle of independence in how organisations respond to very serious concerns. In our meeting, I suggested that you allow someone like Eric Soden (the external reviewer who previously found the decision Ann Abraham made in relation to the NWHSA to be ‘flawed’) to review the issues by looking at the papers. In response, you stated that would further consider this issue.

 On the 20th August, Sarah Fox responded to an email I sent inquiring about what steps you had taken to ensure a suitable level of independence had been applied to my concerns as follows.

“As you know, Mick joined the organisation in January 2014 and, as such, is able to bring a level of independence to the response.”

I am concerned that your organisation can make a statement like this. The lack of independence and objectivity in your response is instantly apparent and I believe would be obviously to any informed person, aware of the history who reads your letter.

The letter has clearly been written with a great deal of thought, but in many aspects is not logical or consistent with the evidence. I do not intend to provide a line by line response as this is not necessary, but instead will respond to the key issues under specific headings.

The decision made by Ann Abraham in 2010 not to investigate Joshua’s death

Your response to me repeats the reasons set out for not investigating Joshua’s case in Ann Abraham’s letter of 3rd February 2010.You summarise these reasons as follows.

 “It was unlikely that a full account of what happened to Joshua and why would be established by an investigation given that some important records could not be found, and in the light of the fact that staff had been interviewed on more than one occasion and their accounts of what happened were unlikely to change.”

You also say that Ann Abraham’s letter to me states that the trust had put in place an action plan to address the acknowledged failures in Joshua’s care and that the clinical advisor believed that the action plan was robust.

You say, “Furthermore, CQC had confirmed that they were aware of the events at the Trust, had the Trust closely under review and were looking to see positive outcomes from the action plan before its concerns will be reduced.”

You say that “We were satisfied at the time that this would ensure that lessons were learned and improvements made” and say “On that basis, the decision was taken that an investigation would not be likely to achieve any more for you.”

 I will deal with each of these reasons in turn.

 The clinical advisor believed that the action plan was robust

 In any sphere of safety, it follows that to know whether or not an ‘action plan is robust’ is only something that can sensibly be evaluated if the circumstances of what happened and why are properly established and understood. There is clear evidence that shows that the Ombudsman knew that the circumstances of Joshua death had not been properly reviewed. For example Kathryn Hudson stated in an internal email.

 “We already have a significant amount of information to suggest that the Trust did not follow the usual procedures following Joshua’s death and that they did not achieve a clear view of what had happened as a result”

Another clear example that demonstrates that Ann Abraham was aware that the Trust had not adequately responded to the circumstances of Joshua’s death is provided by the case officer, Harriet Clover, who is on record as saying.

Given the Trust’s apparent failure to handle Mr Titcombe’s complaint in a satisfactory manner, he has not been provided with a reasonable response to his concerns about events surrounding his son’s death.

Ultimately, the fact that Joshua’s death had not been investigated properly and the Trusts action plan was insufficient to ensure adequate learning has been reinforced by the Ombudsman’s own report published in February 2014, the foreword of which states.

“Our investigations are about a father’s attempts to find out what happened and his desire to improve patient safety, to prevent the same thing happening to others. The Trust could only achieve these things if they answered the family’s questions openly and honestly and learnt from what they found. We have concluded that the Trust did not do this.”

If you accept that to develop a ‘robust’ action plan must first involve understanding a ‘clear view of what happened’; then any logical analysis of the facts, including what was known to the Ombudsman at the time, shows that this reason for not investigating Joshua’s death is flawed and doesn’t stand up to any level of logical scrutiny.

If you are aware that a proper investigation to ‘establish a clear view of what happened’ has not been undertaken, there is no reasonable basis upon which it is possible to declare conviction or confidence in the quality of any resulting action plan; to do so is just guess work.

 It was unlikely that a full account of what happened to Joshua and why would be established by an investigation.

I remain unclear as to exactly what the basis of this statement is. Perhaps Ann Abraham had so little confidence in her organisations ability to investigate such cases, the statement was a reflection on her concerns about the competency of capability of PHSO? What is absolutely clear however, is that a proper investigation of Joshua’s death did eventually arrive at a much better understanding of what happened to Joshua and why. This happened when we eventually secured an inquest into Joshua’s death in 2011, which triggered a range of regulatory actions that eventually exposed serious ongoing risks to mothers and babies at the maternity unit where Joshua died.

The former chair of the Health Select Committee, Stephen Dorrell, wrote to me in relation to this on 24th May 2012 stating his view that it was “…unsatisfactory that the regulatory actions and additional investigations to which you refer were only undertaken in consequence of a coroners report…and not as a consequence of any investigation carried out by the Ombudsman.”

In response to this letter, the current Ombudsman Dame Julie wrote to me on 22nd June 2012 and stated… “I agree. An investigation by us might have uncovered some of what the coroner found.”

By the current Ombudsman’s own admission, it is now accepted that a proper investigation into Joshua’s death (which Ann Abraham was aware at the time had not previously been carried out), could have ‘uncovered some of what the coroner found’.

To pre-empt the likely outcome of a proper investigation in to the circumstances an avoidable death, makes no logical sense.

This reason is therefore fundamentally flawed and has been shown to have been so from the events that have since occurred.

 CQC had confirmed that they were aware of the events at the Trust, had the Trust closely under review and were looking to see positive outcomes from the action plan before its concerns will be reduced.

I agree that the matter of whether or not CQC would follow up on the Trusts action plan in relation to Joshua’s death and would look for improvements was communicated at the time. However, there are clearly a large number of major problems with this reason for not investigating.

1. The ‘action plan’ produced by the Trust was clearly not adequate and sufficient to address all the issues affecting the safety of maternity services at the time. Furthermore, the different responses from Joshua’s death from the Chief Executive and the midwifery supervisory investigation show that there was no clear view of what happened and why, even within the Trust.

2. Clearly Ann Abraham herself was not satisfied that the action plan alone was sufficient to ensure all the issues at the maternity unit where Joshua died were being addressed. This is clear from her notes prepared prior to the meeting on 12th August with Cynthia Bower, which states:

  “It seems to us, that whilst we could investigate the specific events, the greater need is for a broader investigation into the quality of maternity and midwifery services at this Trust.”

If Ann Abraham believed the action plan to be sufficient, the comment, it “…seems to us that…the greater need is for a broader investigation into the quality of maternity and midwifery services at this Trust’? does not make sense.

Other than this note, nowhere in any of the documentation I have seen is any written reference to Ann Abraham’s view that there was a need for ‘broader investigation’  into the situation at the trust. This is highly significant because evidence from senior CQC staff involved at the time (reported in the Grant Thornton review) is that the PHSO decision not to investigation Joshua’s death was seen as a vote of confidence in the Trusts response to Joshua death and confidence that the Trust had responded properly.

In summary, the reasons for not investigating Joshua’s death provided in February 2010 by Ann Abraham and repeated in your recent letter do not stand up to any kind of logical scrutiny.

Furthermore, in 2009 when we came to the Ombudsman for help, we had exhausted the NHS complaints process and the Coroner had confirmed that he would not open an inquest. Article 2 of the European Convention of Human Rights (ECHR) places a positive duty on the state to investigate cases like Joshua’s. That fact that Joshua’s case met the Article 2 ECHR criteria for investigation was confirmed when our application for exceptional funding to support representation at Joshua’s belated inquest was granted by the Ministry of Justice. The successful application was made on the basis of exactly the same information which was available to Ann Abraham at the time she refused to investigate.

This raises further serious questions about the decision Ann Abraham took not to investigate Joshua’s case.

Interactions between Cynthia Bower and Ann Abraham

Your response to my questions starts by making a statement relating to what you believe my main concerns are. I think this is unfair since my letter clearly sets out my questions. I was not asking you to comment on any wider inferences, for example, whether or not pressure may have been applied on the PHSO not to investigate Joshua’s case.

As you are aware, there are several concerns I have regarding the interactions which took place between Cynthia Bower and Ann Abraham relating to Joshua’s case. These concerns arose when I became aware of a memo from Kathryn Hudson to Ann Abraham which stated.

‘In your conversation with Cynthia Bower shortly before your leave, the suggestion arose that if we could assure Mr and Mrs Titcombe that as a result of their experiences CQC are now taking robust action to ensure improvements in the quality of maternity services in the Trust, you might decide not to investigate.’

The conclusion I drew from my discovery of this memo, which I maintain is reasonable and logical, was that a conversation must have taken place between Cynthia Bower and Ann Abraham during which Joshua’s case was discussed in context of what actions CQC may or may not take in respect and the Ombudsman’s decision as to whether or not to investigate.

The language in the memo is significant and important. The words ‘robust action’ and ‘might decide not to investigate’ are key to indicating the nature of the discussion that clearly Kathryn Hudson understood to have taken place.

I subsequently raised my concerns regarding this conversation and asked for more details. In a letter from Sarah Fox on 17th August 2012. I was told:

“We have given you all the information we can about the conversation that took place between Ann Abraham and Cynthia Bower. We have told you that the conversation was brief and merely served as a way to establish a contact for Kathryn Hudson. There is no record of the conversation other than in Kathryn Hudson’s minute and so we cannot provide any further details about it. Again, I appreciate you think that the conversation must have been more detailed and significant than described, but it was not. I am sorry you do not believe this, but I cannot take the matter any further.”

Given other documentary evidence, I have concluded that this statement was not truthful and furthermore, that your organisation must have been aware of this at the time the letter was written.

Your letter states “I want to be very clear that we have not been dishonest with you about the events that took place. In fact, we have done everything we can to be open and transparent with you and continue to engage with you regarding your outstanding questions”.

I am afraid that this statement is not accurate and does not stand up to a logical analysis of the evidence. Had you allowed any external reviewer to look at the paper work and various responses over the years, I am certain that they would not share this conclusion.

In relation to the specific example of the statement made to me in the letter of 17th August 2012, it is worth reflecting on the evidence.

Firstly, the letter states “We have told you that the conversation… merely served as a way to establish a contact for Kathryn Hudson.”

This statement suggests that the only thing discussed between Cynthia Bower and Ann Abraham was who Kathryn Hudson could contact at the CQC and ‘nothing more’.

However, in evidence given to Grant Thornton, which you have now supplied, Ann Abraham (paragraph 26) refers to her recollections of the discussion as follows.

“Based on the notes I prepared in advance of the meeting and my memory, I would have given Cynthia a flavour of the complaint, explained that I was not minded to investigate it but that I did not want to make a final decision until I understood CQC’s position in relation to the UHMB Trust.”

The statement above, which Ann Abraham herself has made, clearly suggests that in fact a more detailed discussion took place surrounding Joshua’s case that the August 2012 letter implies. The statement above is consistent with Kathryn Hudson’s memo.

The August 2012 letter states “There is no record of the conversation other than in Kathryn Hudson’s minute and so we cannot provide any further details about it”.

This statement is also not correct. In fact, a pre meeting note was prepared which indicated that Ann Abraham intended to discuss Joshua’s case with Cynthia Bower. The agenda item is clear. The note asks the question.

“It seems to us that, whilst we could investigate the specific events, the greater need is for a broader investigation of the quality of maternity and midwifery services at this Trust. Would CQC be receptive to that?

It was therefore not true to state “…there is no record of the conversation other than in Kathryn Hudson’s minute and so we cannot provide any further details about it.” In fact, another record (the pre meeting agenda item) did exist but was not disclosed.

It is clear from the evidence that the statement in the August 2012 letter was not accurate and I maintain that this response to my question was therefore dishonest.

It seems likely to me that Kathryn Hudson’s contemporary note reflects a conversation that did take place. The pre meeting note from Ann Abraham reflects an intention to discuss the case including whether or not CQC would be ‘receptive’ to a ‘broader investigation of the quality of maternity and midwifery services’ at the Trust. Kathryn Hudson’s memo, the pre meeting agenda note and indeed, the statement Ann Abraham provided to Grant Thornton are all consistent with such a discussion having taken place.

The question here is not whether or not it was proper for Ann Abraham and Cynthia Bower to have a non documented discussion about strategic decisions relating Joshua’s case; the issue is around clarity regarding what was agreed and the reasons behind it.

The pre meeting agenda item clearly indicates that Ann Abraham felt that there was a need for a ‘broader investigation’ into the issues at the Trust, yet the emphasis in the eventual decision not to investigate is on the adequacy of the Trusts existing action plan and CQC’s oversight of it.

Could lives have been saved had Ann Abraham investigated Joshua’s case?

Your letter states “I do not agree that a decision to investigate your original complaint would have exposed the failures at the Trust any earlier. The facts show that the problems at the Trust were already well known and CQC confirmed that they would take action. That was their role as the regulator. To suggest that an investigation by us would have exposed wider problems at the Trust regardless of CQC’s involvement demonstrates a failure to understand the role of the Ombudsman”. You say “Our role is to consider individual complaints. It is not to act as an early warning system or a regulator”.

I am afraid that this description demonstrates a gross failure to understand the factors at play which resulted in the serious risks to mothers and babies at Furness General Hospital (FGH) being left unaddressed for a significant time following Joshua’s death.

Your statement that “The facts show that the problems at the trust were already well known” is not fully accurate. In truth, inconsistent and different views were emerging within different organisations and by different people. The situation was far from clear. The evidence for this confused situation is set out very clearly in the Grant Thornton report. If you had taken the time to consider a fuller picture of what was happening, you would have understood that far from a consistent view, the picture was unclear and muddled. For example, the North West Strategic Health Authority (NWSHA) were of the view that there were no significant issues, that the events at FGH maternity unit in 2008 were ‘unrelated’ and that the trust themselves had responded properly to the issues.

Indeed, even within the trust itself, there were large disagreements regarding what happened to Joshua and why. For example, there were discrepancies between the opinions expressed in the Trusts ‘external’ report and in the report produced by the maternity risk manager for the Local Supervisory Authority (LSA).

The reality is that Ann Abraham’s decision not to investigate Joshua’s death left a situation whereby the full circumstances of what happened and why had not been properly investigated or established and whereby different organisations held very different views as to the nature and seriousness of the situation at the maternity unit at FGH. This lack of clarity and confusion was further compounded by Ann Abraham’s flawed decision not to investigate my complaint about the NWSHA, whom were providing assurance that the Trust had adequately addressed the issues associated with Joshua’s death.

You state “To suggest that an investigation by us would have exposed wider problems at the Trust…..demonstrates a failure to understand the role of the Ombudsman”.

I am deeply worried by this statement because it appears to suggest that you believe a thorough investigation into a single incident cannot expose wider, systemic problems within a service. This is a flawed assertion and demonstrates a worrying lack of understanding regarding the principles of safety. Clearly a single incident or complaint can and often does expose wider systemic failings. The case of Gillian Asbury highlighted during the Francis inquiry is a clear example.

Again, I am concerned by your statement “Our role is to consider individual complaints. It is not to act as an early warning system…”.

 This statement implies that an ‘individual complaint’  about an avoidable death, when properly investigated can not be an ‘early warning’ of serious problems. This is clearly nonsense. Furthermore, in Joshua’s case, the actual events that followed Ann Abraham’s decision demonstrate irrefutably that when a proper investigation was finally undertaken into what happened to Joshua, wider systemic problems were identified and the Coroner felt compelled to write a rule 43 letters recommending actions to avoid future loss of life.

The current Ombudsman herself wrote to me on 22nd June 2012 and agreed that an investigation at the time by PHSO “…might have uncovered some of what the coroner found.”

Following a simple logical process, it follows that had the Ombudsman investigated Joshua’s death robustly and properly at the time, several of the factors that heavily contributed to a situation in which serious risks to mothers and babies at FGH were left unaddressed for so long, could not have prevailed. A proper investigation would have left no room for different perceptions and views which existed within different organisations to emerge about whether or not the Trust were taking the necessary actions to learn from Joshua’s death.

It is my firm belief that had the Ombudsman investigated Joshua’s death in a robust way at the time, the extent of problems at the maternity unit at FGH would have emerged sooner and action could have been taken to prevent further loss of life. I am aware that the Kirkup investigation has screened 200 case notes relating to perinatal and maternity deaths at the Trust and has taken a decision to take 50 of these cases through to a more detailed review stage. I am confident that the Kirkup investigation will establish how many avoidable deaths occurred at FGH following Joshua’s death and whilst we may never know whether or not a timely Ombudsman investigation would have made a difference, we can be certain that it was an opportunity missed that could well have.

Towards the end of your letter, you respond to my point about your admission during our meeting on 4th July that the current PHSO processes for investigating cases of potentially avoidable death is not currently ‘fit for purpose’. I welcome what you have set out in terms of the changes being made and your openness in stating that there is ‘a long way to go’ and that you are aware of the need to be ‘much more open about the need to modernise…in the months ahead’.

 I also welcome confirmation that your risk assessment processes have changed and that you agree that “… where there is a potential avoidable death our focus should be on the risks to health and safety of patients and not whether there might be media interest in our work’. I am also pleased to hear that you no longer use the categories ‘risk to our reputation’ and ‘risk of litigation’ in relation to your casework.

I have explained in this letter why I feel that the response to my concerns and questions regarding the former Ombudsman’s decision not to investigate Joshua’s death has been dishonest. My view in relation to this has not changed and I strongly feel that the evidence available supports this.

In your letter, you also say that you “…believe it is inappropriate for [me] to place an image of our name next to picture of Joshua and Furness General Hospital as this implies, wrongly, that we might be responsible for, or implicated in, his death”.

I have to admit to finding this statement odd. In what is almost 6 years since Joshua died, I do not believe I have ever said or written anything to the effect of implying that the Ombudsman are responsible for or implemented in Joshua’s death. However, I do believe that the Ombudsman are directly responsible for letting down Joshua, my family and the community served by Furness General Hospital for failing to investigate what happened. I believe that the actions of your organisation at the time were in fact reckless and dangerous. For these reasons, I feel that it is entirely appropriate for Joshua’s image, and that of Furness General Hospital to be shown next to an image of the PHSO name.

Towards the end of your letter, you refer to what you describe as my belief that the decision not to investigate Joshua’s case in 2009 was linked to a ‘political conspiracy in advance of the General Election’. This is a misrepresentation of my views. My belief is that towards the period of time prior to the last general election, evidence exists that points towards a general culture prevailing in which bad news in the NHS was kept quiet. I strongly believe that ensuring such a culture is never allowed to prevail in the future is an important lesson from recent healthcare scandals, including Morecambe Bay.

I welcome measures announced by the Secretary of State to strengthen political independence in healthcare regulation as described in the article below.

http://www.telegraph.co.uk/health/healthnews/10348107/NHS-regulator-to-act-as-chief-whistleblower-on-health.html

I agree with this statement from the Secretary of State in relation to the importance of such measures. “This means never again can Ministers or political advisors lean on them to suppress uncomfortable truths, and never again will care failings be covered-up by managers dancing to their political masters’ tune.

 In our conversation on 21st July you asked me about these issues and I stated that the Kirkup investigation would be the most appropriate mechanism to consider the legitimacy of such concerns.

Summary

  • Your response to my concerns lacks independence and objectivity. This could have been addressed simply by allowing an external reviewer to comment on the case papers. I have repeatedly asked for such an independent review to be undertaken and this has repeatedly been refused.
  •  Your response demonstrates a lack of understanding in relation to the sequence of events and the factors at play which led to ‘significant risks’ remaining unaddressed at Furness General Hospital for some years after Joshua died. 
  • Your response has not addressed the issue of dishonestly, which I have set out again clearly in this letter. 
  • Your arguments in relation to whether or not the decision not to investigate Joshua’s death increased the risks to mothers and babies at Furness General Hospital does not stand up to any logical scrutiny. 
  • Your statement “Our role is to consider individual complaints. It is not to act as an early warning system…”, is concerning. Individual complaints can clearly be an early warning of serious problems within an organisation. I would expect the Ombudsman to understand this principle.

 Since losing Joshua in November 2008, nothing could have prepared me for the agony and frustration of dealing with the system we were faced with. Of all the organisations I have had to deal with, the Ombudsman service, by some considerable margin has been by far the worst. In the years since Joshua’s death, your organisation must have spent thousands of pounds on solicitors and legal advice, constructing letters which try to defend the indefensible.

 In all that we clearly still disagree on, I hope we can at least agree that these circumstances must never be allowed to happen again.

Yours sincerely,

James Titcombe

 

2 thoughts on “Response to recent PHSO letter

  1. Chris Custodiet

    Well said, James, but isn’t Kirkup also supposed to be investigating the governance culture in which mothers and babies died at Furness General? That is to say, what were the board, the governors, the SHA, the lead commissioners (North Lancs PCT), the CQC, Monitor and the Appointments Commission doing about this issue and the many other alarms that were being sounded in Morecambe Bay?

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  2. Pingback: Blue sky thinking just leaves your head in the clouds. | phsothetruestory

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