This is a very brief blog just to raise an issue that I’ve been concerned about for some time.
I’ve now heard several accounts from people who have contacted me personally who have said that PHSO have told them that they won’t fully investigate their complaint (which in the cases in question relate to potentially avoidable deaths), if the family are considering taking legal action. Indeed, this information was given to me in 2009 when I contacted the Ombudsman in relation to Joshua’s death.
This is something that concerns me greatly.
I have recently been made aware of the section of the legislation governing PHSO which relates to this.
Health Service Commissioner Act 1993
The Commissioner shall not conduct an investigation in respect of action in relation to which the person aggrieved has or had –
(a) a right of appeal, reference or review to or before a tribunal constituted by or under any enactment or by virtue of Her Majesty’s prerogative, or
(b) a remedy by way of proceedings in any court of law, unless the Commissioner is satisfied that in the particular circumstances it is not reasonable to expect that person to resort or have resorted to it.
So here we have it in black and white. A civil legal process is considered a ‘remedy by way of proceedings…in a court of law’ and therefore invokes the above clause.
Last week, I emailed the Managing Director of the Ombudsman, Mick Martin, requesting clarification on this issue. A copy of the email is below. I will share his response once received.
I have read Julie’s recent letter and interview in the HSJ about investigating serious failures in healthcare, including historic cases.
However, I have been contacted by a number of families recently (in a personal capacity) who tell me that they have been advised that the PHSO won’t investigate the clinical aspects of their complaints (which in these cases involve potentially avoidable deaths), as the families are taking or considering taking legal action. I recall myself being told this when Joshua’s case was being considered.
I am very concerned if this is the position. The civil legal process is not designed to be a substitute patient safety focused investigation, nor a substitute for an open and honest response to a families concerns/complaint.
Please can you provide a definitive statement on the Ombudsman’s position on this matter as it is central to the issue of whether or not a gap in the system exists.
I have blind copied some of the families who tell me they have recently been told this and I am hoping that you will be able to provide a simple and definitive response by return.