Missing, withheld and destroyed files by Public Authorities

[Name Removed] (Ataliwyd y cyfrif) made this Rhyddid Gwybodaeth request to Parliamentary and Health Service Ombudsman

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

Yn disgwyl am adolygiad mewnol gan Parliamentary and Health Service Ombudsman o'u triniaeth o'r cais hwn.

[Name Removed] (Ataliwyd y cyfrif)

Dear Parliamentary and Health Service Ombudsman,

NHS
Missing, withheld and destroyed NHS files are now a huge problem for complaints who bring their complaints to the PHSO.

The common complaint is that although complaints have a case, they can it bring the evidence,which logically should exist, to the PHSO.

If they state that files are clearly missing, the PHSO does not request Trusts to produce them. Therefore their cases are closed.

The PHSO has an ongoing case where over 100 files were witheld and only obtained by the determination if the complainants. The caseworker then decided that- as the decision had been made- they were irrelevant.

:::

In my case, 'editing' and withholding of files was alleged by an NHS whistleblower to have been done at ward level. So Trusts are not always responsible.And the Ombudsman can clearly do nothing in this situation.

But my understanding, from a PHSO director, is that the PHSO knows that certain NHS Trusts consistently withold records.

::::

My request:

1. Which NHS Trusts have been accused by complainants of withholding ( or not providing ) requested files?

( Scope: In the last year).

2. Does the PHSO hold a list of the Trusts (eg Top 10.) do not provide files - which should logically exist - on a consistent basis? Either by year, or over any period of time.

3. Does the PHSO monitor the situation where complainants cases are closed for this reason?

If so, by what method? Is there a code, or way for monitoring complaints closed either entirely, or partly, on this basis?

4. Has the PHSO any plans (eg a Special report) in dealing with what now seems to be an rapidly increasing problem for complainants?

5. Which Trusts has the PHSO asked to provide missing files ( Due to statements by complainants) in the last year?

6. And how many times has the PHSO visited Trusts in order to obtain files after the trust has not provided files which should logically exist? ( scope: in the last year)

7. Has the PHSO any intention of Naming and Shaming trusts which consistently withhold files?

Other Public Authorities

8. Are there any other Public Authorities, which have been stated by complaints to be withholding files, so that they can not progress their cases? ( scope: Last year). If so,which PA's?

9. And does the PHSO monitor the number of complaints in which PA's are stated to be withholding files.
....By code, or otherwise, linked to why cases are closed on this basis.

10. If so, has this information been quantified to provide a list of those PA's which consistently withold files? And does the PHSO have any intention if Naming and Shaming them?

Yours faithfully,

[Name Removed]

foiofficer@ombudsman.org.uk, Parliamentary and Health Service Ombudsman


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Gadawodd D. Speers anodiad ()

Very Interesting request Jt Oakley ........I await the reply with interest!

Gadawodd [Name Removed] (Ataliwyd y cyfrif) anodiad ()

Absolutely basic.. If the files are missing the decision should go against the NHS, not poor complainant who has been deprived of the files.

You would think,that the phsonwouid gave caught on by now. But nothing us done.

Withheld, destroyed or 'edited' NHS files?.( in one case over 100) files were 'lost' )

Complainant ......You have no complaint.

Case closed.

......Carry on killing NHS.

foiofficer, Parliamentary and Health Service Ombudsman

Dear Ms [first name redacted] Oakley

 

Thank you for your email of 20 June 2015 in which you requested
information regarding files being withheld from the public by bodies
within the Parliamentary and Health Service Ombudsman’s (PHSO’s)
jurisdiction.  I have responded to each of your queries below.

 

1.    “Which NHS Trusts have been accused by complainants of withholding
(or not providing) requested files? (Scope:  In the last year).”

 

4.    “Which Trusts has the PHSO asked to provide missing files (Due to
statements by complainants) in the last year?”

 

5.    “And how many times has the PHSO visited Trusts in order to obtain
files after the trust has not provided files which should logically exist?
(scope: in the last year)”

8.    “Are there any other Public Authorities, which have been stated by
complaints to be withholding files, so that they cannot progress their
cases? (scope: Last year).  If so, which PA's?”

 

10. “If so, has this information been quantified to provide a list of
those PA's which consistently withhold files?”

 

This is not information that we record centrally and therefore it is
difficult for PHSO to establish what information it holds on this topic.
In order to find and extract the data relating to your request, every
investigation record would need to be checked to see if there was an
indication that records were being withheld and whether the caseworker
subsequently visited the body concerned. An employee of PHSO would, in
effect, need to interrogate each of the investigation files to find the
reason for the complaint, and/or if there were any later issues regarding
files being withheld. 

 

This work goes beyond simple data extraction. The level of complexity
involved in locating and extracting this information is extremely high. 
The information could not be extracted without the skill and knowledge of
firstly the PHSO casework system as well as the understanding of the
investigation process to exercise sophisticated judgement on the subject
and content of each investigation.  For this reason, I consider the
complexity of extracting the information to be such that the information
is not held for the purpose of the Freedom of Information Act 200 (FOIA). 

 

In any case, I should also highlight that were that complexity threshold
not met, the extraction of the information would still engage section 12
of the FOIA as the time taken to do so would exceed the appropriate limit
set out in the FOIA Guidelines for section 12. 

 

I have considered though whether there are any ways in which we might
narrow the search and the work required. We do have a keyword of ‘records’
that caseworkers can choose to add to a case. There are just over 500
cases where the caseworker has recorded this keyword as being relevant. 
Information relating to the type of Trust each investigation refers to and
the outcome of these investigations is attached. However, this keyword
relates to a very broad variety of issues that relate to record keeping,
record management or record sharing, rather than the very specific issue
of bodies withholding information from the public. Further, while
generally it would be the case that the keyword is added in those
circumstances, it would not happen on all occasions.

 

Again, to extract any further information about the issues you raise, we
would be required to undertake a manual review of each of the case files.
It seems likely that this work would not be straight forward and would
require the exercise of judgement I have outlined above such that it
becomes difficult to conclude it is recorded data we hold falling within
the scope of the FOIA.

 

Even if this were not the case, in order to establish, how many of the 500
or so cases relate to specifically to the issues you have raised, we would
still need to carry out a manual search of each case. This would engage
the time/cost limit at section 12 of the Freedom of Information Act 2000.

 

2.    “Does the PHSO hold a list of the Trusts (eg Top 10.) do not provide
files - which should logically exist - on a consistent basis? Either by
year, or over any period of time.”

3.    “Does the PHSO monitor the situation where complainants cases are
closed for this reason?  If so, by what method? Is there a code, or way
for monitoring complaints closed either entirely, or partly, on this
basis?”

 

9.    “And does the PHSO monitor the number of complaints in which PA's
are stated to be withholding files.
....By code, or otherwise, linked to why cases are closed on this basis.”

 

As I have already mentioned, investigations on this subject would
generally have a keyword of ‘records’ added, though this does not happen
on all occasions. There is no additional information we hold relating to
your request.

 

7.    “Has the PHSO any intention of Naming and Shaming trusts which
consistently withhold files?”

 

10. “And does the PHSO have any intention if Naming and Shaming them?”

 

There is no recorded information held in relation to these queries. Please
take from this that we have no plans currently to ‘name and shame’ bodies
in the way you describe.

 

That concludes my consideration of your request.  If you have any further
queries, or would like to ask for a review of my decision you can write to
[1][email address].

 

Regards

 

David Thomas

FOI/Data Protection Officer

Parliamentary and Health Service Ombudsman

E: [2][email address]

W: [3]www.ombudsman.org.uk

 

 

 

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[Name Removed] (Ataliwyd y cyfrif)

Dear foiofficer,

Below is an email from the PHSO's Dr Gavin McBurnie to me - on this ( as he recognises it to be) 'widespread problem'.

It's dated December 4. 2014. My request was to see if there was any action being taken.

I think it's self-explanatory.

Dr McBurnie's email:

::::.

Good morning

Thanks for your email

Regarding your personal case I understand it has now been picked up by the customer care team that has been established and they should be contacting you soon.

As you know I share your concern regarding lost (withheld destroyed etc) records as for me it undermines a complainants ability to get a true understanding of what happened and to have confidence in the system. It is as far as I can see a problem that is widespread. We have started planning a project to investigate cases with missing records which we would hope to start in the New Year and aim to publish early in the new financial year.

I would be happy to keep you informed regarding this investigation.

Gavin

Dr Gavin McBurnie
Director of Complex Health Investigations
Parliamentary and Health Service Ombudsman
T: 0300
E: gavin.mcburnie
W: www.ombudsman.org.uk

::::.

Your response indicates that the PHSO is now content to new deny all knowledge of the widespread strategy from PA's, intends to ignore it and do nothing about it.

::::

So are you stating that Dr McBurnie was :

1. Mistaken
2. Deliberately misinforming me.

Yours sincerely,

[Name Removed]

foiofficer@ombudsman.org.uk, Parliamentary and Health Service Ombudsman


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Gadawodd phsothefacts Pressure Group anodiad ()

They can't possibly investigate cases where records are missing unless they can identify those cases through their record keeping system. To see systemic patterns i.e. poor performing trusts/GPs/departments, they would need to keep records beyond their current two year retention period. It is clear that PHSO have no intention of taking any action on this issue. Looks like more hot air from management.

Gadawodd [Name Removed] (Ataliwyd y cyfrif) anodiad ()

If there is one thing that the PHSO can be accused of more than others it is accepting the NHS Trust's notes ( or lack of) and automatically dismissing complainants visual accounts.

It's as if the PHSO believes that relatives watching their family members die - and trying to prevent it - have the time to sit down and make comprehensive notes, with the correct medical terms.

:::

It isn't as if the PHSO doesn't know that medical notes go missing.

It can't do..caseworker's must see it on a daily basis.

The PHSO is just but brave enough -or inclined - to poke the hornet's nest .....so it happily let the NHS boards get away with it.

No notes, no action: Complaint closed.

Easy ....and another case chalked up on the target board as handled.

:::

Personally I think if the PHSO used its legal power to investigate the worst culprits..and my understanding is that the PHSO knows which they are..

Then it might become a force to be reckoned with ( and even up the score between the NHS and complainants) other than just rolling over on behalf of the NHS negligent.

Leaving them to kill or hurt even more patients.

Gadawodd James anodiad ()

Central North West London NHS Trust have forged my medical records and have withheld them for over 1 year ignoring all my complaints. I suffered a life-threatening brain injury which almost killed me and they misdiognosed me. PHSO did nothing but ignore my complaints and after continued complaints they wrote to me alleging that due to restructuring and overload of work they would not be able to review it at this time. Absolutely disgraceful - this Ombudsman is covering up serious crimes of forgery whilst placing human life at risk of death. Look closer and you will see all the lords and peers have shares in pharma companies supplying drugs to NHS Trusts at the expense of British taxpayers. They have turned the NHS into a corrupt global pharmacist who operate for profits excluding non-profitable patients from care.

++Feedbackaboutus@ombudsman.org.uk, Parliamentary and Health Service Ombudsman

Dear [Name Removed]

 

We are writing in response to your email of 20 July 2015.

 

We are sorry that you are dissatisfied with our handling of your
information request.

 

Under our internal complaints procedure, your complaint has been passed to
our Head of Risk, Assurance and Programme Management Office, Mr Steve
Brown.

 

Mr Brown will consider your concerns and will send you a full reply once
his review is complete. This review of your complaint is the only review
that we will undertake.

 

We aim to reply to such complaints within 40 working days of receipt.

 

Kind regards

 

 

Customer Care Team

 

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[Name Removed] (Ataliwyd y cyfrif)

Dear ++[email address],

Thank you I will look forward to Mr Brown's thorough appraisal of all the relevant files.

He might consider whether or not the NHS withholding medical files.. under the Access to Medical Records Act is Maladministration - or not, since the PHSO judges maladministration.

Seemingly, from its case handling, the PHSO is stating that it is not ...and therefore this now common administrative manoeuvre is supported and condoned by our elected government.

However, the PHSO must produce some guidance on this type of defensive NHS administration to inform caseworkers as to exactiy what constitutes 'maladministration' - or not... -when files - which should logically exist -are withheld from complainants.

So some specific guidance- to aid maladministrative case decisions - should be on file.

Yours sincerely,

[Name Removed]

feedbackaboutus@ombudsman.org.uk, Parliamentary and Health Service Ombudsman


Thank you for contacting the Customer Care team at the Parliamentary and Health Service Ombudsman.
I can confirm we have received your e-mail and a member of our Customer Care Team will be in touch with you shortly.

Kind regards

Customer Care Team

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Gadawodd Mary Rains anodiad ()

This is an absolutely appalling situation which has also happened to me and so long as the Ombudsman allows these dreadful practices of lying and witholding and destroying records the situation will repeat itself time and time again. The public must be given greater protection.
I eagerly await the response!

Gadawodd [Name Removed] (Ataliwyd y cyfrif) anodiad ()

Sadly, Mary ... It would be easier to say which NHS complainants have NOT been affected by the withholding, destructoin, loss and alteration etc of records ... than those that have.

:::

I cannot see that the PHSO can condone Trusts breaking the law.

An example is an ongoing case - in which over 100 medical records, only obtained from a Trust - during a PHSO investigation into a NHS death (and after the usual prolonged of struggle ) were then ignored by the PHSO.

Not only did the PHSO not ask any questions about the sudden emergence of the witheld files but, as the caseworker had already made a judgement, happily bypassed a clinician to investigate them.

:::

Reading the below , the maladministered withholding of records should of been referred to the ICO - as a lawbreaker for the ICO to investigate.

The £500k fine should be a driver....as the money goes back to the public purse. Yet I can't find any record of the ICO fining NHS Trusts for anything like £500k.

In my opinion, the government - in the shape of the ICO - is really missing a trick here funancialky and for the future safety of patients,

But if the PHSO refuses to take this step and refer ' withholding etc' cases to the ICO , who else will?

Certainly not the boards...because they know that they can now get away with it on a consistent basis,.

Because ..even the PHSO even accepts the sudden emergence of 'lost' files due to them finally being winkled out from Trusts ...as logically having to exist- it leaves it as that.

No questions asked. No referral.

I'd just like to know why.

Is it a lack of any management policy, or a PHSO biased judgement to simply leave the malfunctioning Trusts alone?

That's the why for the request.

::::

Here's the guidance from NHS England.

2.1 NHS England will take actions as necessary to comply with the legal and

professional obligations set out for records, and in particular:

 Public Records Act 1958

 Data Protection Act 1998

 Freedom of Information Act 2000

 Access to Health Records Act 1990

 Regulation of Investigatory Powers Act 2000

 Records Management: NHS Codes of Practice (Part 1 and 2)

 NHS Information Governance: Guidance on Legal and Professional

Obligations

2.2 Failure to comply with the regulations stated in paragraph 2.1.could result in reputational damage to NHS England and carries financial penalties of up to £500,000 imposed by the Information Commissioner.

This policy applies to all employees and must be strictly observed.

Failure to do so could result in disciplinary action.

http://www.england.nhs.uk/wp-content/upl...

Gadawodd [Name Removed] (Ataliwyd y cyfrif) anodiad ()

......Well I'll certainly be interested to see if the PHSO state the decent Dr MrBurnie was lying to me.

He also stated that the PHSO knew which Trusts had poor records at file production for PHSO cases and that he hoped( budget allowing) that the PHSO would allow his department to do something about it.

Clearly the PHSO prefers to let these 'withholding' negligent NHS trusts get away with it.

Gadawodd Peter Gibbs anodiad ()

JT Oakley,
Sir, in April I attended a Leeds Teaching Hospitals Trust meeting. The minutes received 2 months later were inaccurate and largely false. Unbeknown to the Trust I had voice recorded the meeting. I informed the Trust that I had voice recorded the meeting and gave them ample opportunity to amend the minutes, which are to be sent to the NHS litigation authority. But they agreed only to three very minor changes. Despite my being able to provide the PHSO with both the voice recording and the transcript of the meeting - which will prove them to be liars, the Trust still seem more than happy for me to complain to the PHSO.

Peter.

Gadawodd [Name Removed] (Ataliwyd y cyfrif) anodiad ()

Peter Gibbs: You have my sympathy.

Yes - the PHSO is institutionally biased in NOT accepting complainant's taped evidence.(it happened to me.)

I don't have a particular axe to grind on that, as the external investigator upheld my PHSO badly botched case...and said so. But it's where the PHSO demonstratably falls down badly as an independent investigatory body.

It doesn't treat complainant's solid taped evidence equally with that obviously 'edited' (supposedly contemporaneous) handwritten notes.

And a complainant's eye-witness account doesn't ever seem be acceptable to the PHSO...even though, if your relative is dying In front of you, the last thing you are thinking of is making written records.

So the 'edited' and half - processed notes etc from public authorities - including the NHS - are accepted .....almost without question. As is the the 'word' of a complainant- taped PHSO employee over a actual tape.

:::

In addition, the PHSO states that it does not tape its phone calls - as the financial and other ombudsmen do.

The reason seems to be that it may need to suppress the evidence that its employees can do - and say - exactly what they want to complainants, and neglect to investigate the case in an independent manner if they wish.

Which makes so many complaints dispirited and angry.

:::

Any following judicial review - brought by the complainant - will fail on the logic that the PHSO can do exactiy what it wants - no matter how poorly it has carried out an investigation.

If there was taped evidence of the lack of a thorough case investigation , and a demonstration of bias, it would leave the PHSO slightly more open to losing a judicial review.

Therefore no in-house taping and the rejection of complainant's tapes.

As you've guessed, the system is set up for you to lose your case,

Brown Steve, Parliamentary and Health Service Ombudsman

4 Atodiad

 

 

Steve Brown

Head of Risk and Assurance

Parliamentary and Health Service Ombudsman

E: [email address]

W: [1]www.ombudsman.org.uk

 

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[Name Removed] (Ataliwyd y cyfrif)

Dear Brown Steve,

Thank you Mr Brown - (or, indeed, if Mr Whiting has drafted your response again - Mr Whiting)

My understanding is that the PHSO was to make a 'Dawn raid' ..(not my phrasing) , on a Withholding Trust only just week.

So although the FOIA department seems not to be able to furnish any pertinent information at all at present ( maybe it has been excluded from this sort of information), I hope that it will be able to provide more heartening news of this sort, with statistical and explanatory information, of any other 'dawn raids' the PHSO had made .....at a later date.

Yours sincerely,

[Name Removed]

Gadawodd [Name Removed] (Ataliwyd y cyfrif) anodiad ()

The PHSO response seems to boil down to:

1. We haven't a clue about this, despite our own officer Dr McBurnie stating the obverse.

2. And 'not noticing ' that over 100 medical files are being witheld ( provable..the Trust later provided them.... after the PHSO decreed investigation time had elapsed of course ) from a case - even though being told so by the bereaved complaint, is part of our head-in-the -sand policy. ..
NB that's not the complaint outlined below in the Sunday Times.

No wonder Jeremy Hunt is on its case.

Watchdog told have a heart by grieving patients

http://www.thesundaytimes.co.uk/sto/news...

Gadawodd J Roberts anodiad ()

I can't read the full article, but I think it is fair treatment that complainants should be receiving. If a complaint is unfairly rejected no amount of compassion and sensitivity can right the wrong.

Gadawodd [Name Removed] (Ataliwyd y cyfrif) anodiad ()

Agreed.

'Case closed - and we are not telling you why.

So push off - as we won't be replying to you.

- But you have Our Sympathy.'

...doesn't exactiy hack it.

Gadawodd [Name Removed] (Ataliwyd y cyfrif) anodiad ()

WDTK is asking me to choose a category to say whether the request has been answered.

I don't believe it has - as the response makes the PHSO's own officer, the decent Dr McBurnie, out to be telling me untruths.

He seems concerned about patients, truthful - and therefore one of the better PHSO officers.

So I would believe him, rather than the FOIA department., which dyes t seemed to have bothered to ask him, despite being given his comments ( there are more )

The PHSO DOES know which Trusts withold records on a regular basis. And to do that. files would have to be kept.

The category that WDTK doesn't have is - ' Do you think the Respondee has complied with the terms of the request?'

Sadly the answer would be no.

Gadawodd A.E. anodiad ()

So what happened to this amazing IT system PHSO was supposed to have? Are they failing in their duty to put it to good use? Should not IT be able to analyse for statistical purposes? Even a basic database could do that if the field was set up and the information entered (even if it was just a code as JT Oakley says).

Also, how come the police can re-open unsolved crimes with new evidence yet the PHSO cannot reopen a case if a Trust miraculously finds supposedly "lost" records?

[Name Removed] (Ataliwyd y cyfrif)

Dear Brown Steve,

Why would you assume that I only required files held 'centrally' ?

There is no mention of this prerequisite in my request.

Files can be held individually and still pertain to an FOIA request.

So it is, once again, a request refashioned by the FOIA department's own criteria.

:::

However, since Dr McBurnie states that he knows which Trusts withold files - on a regular basis, I will be able to see if the FOIA department checked out my request with DrMcBurnie - since I have supplied his email to me - when I receive my SAR.

Clearly if the PHSO FOIA department has not contacted him for the information . ......it will have failed in processing the terms of the request.

And, if it has.....then presumably information has been withheld - without stating which FOIA Section applies - and without any help assistance S16 R9 as to how to reframe my request, to obtain information that I have been told exists , by one of your senior officers.

Yours sincerely,

[Name Removed]

Gadawodd A.E. anodiad ()

Such an easy get out clause isn't it "ooh no, it will be too expensive so we aren't going to respond".

Gadawodd [Name Removed] (Ataliwyd y cyfrif) anodiad ()

The strange thing is that DrMcBurnie says that he knows the Trusts that consistently withold information.

So why didn't they just ask him?

Gadawodd A.E. anodiad ()

No doubt Steve Brown has since had words with Gavin about risk management...

Gadawodd [Name Removed] (Ataliwyd y cyfrif) anodiad ()

What continues to perplex me is why the PHSO change the request.

If the FOIA team don't understand it, surely they can ask for a clarification?

In this case, haven't asked for central information.

And, as far as I know, FOIA pertains to all files, not just those that are held centrally.

So why specify centrally held information?

Mr Brown has assured me that he can review requests overnight.....which means consulting all the files.

So clearly I must believe him.

But in this case. I've helpfully specified where the information that I require might be held.

With Dr McBurnie, who states:

'As you know I share your concern regarding lost (withheld destroyed etc) records as for me it undermines a complainants ability to get a true understanding of what happened and to have confidence in the system. It is as far as I can see a problem that is widespread. We have started planning a project to investigate cases with missing records which we would hope to start in the New Year and aim to publish early in the new financial year.

I would be happy to keep you informed regarding this investigation.

Gavin'

::::::::

I wanted to update you in that I will be asking my team next week to begin to develop an investigation plan into the withholding and loss of clinical records by the NHS and which we would aim to publish before the end of the financial year. I will keep you updated as it progresses

Gavin

Dr Gavin McBurnie

So I don't really see the argument that the PHSO must consult 'central' files to find out whether or not those who are daily engaged in investigations have collected the information requested.

Or whether Dr Mc Burnie's project ever got off the ground, and what is on his file - as clearly he must have done preparatory work in order to get the project up and running,

Gadawodd A.E. anodiad ()

"Oh what a tangled web we weave, when first we practice to deceive..." (thanks Walter Scott for that most appropriate line).

In other words, tactics may include delay, deny, defend, diminish or any combination thereof.

[Name Removed] (Ataliwyd y cyfrif)

Dear Brown Steve,

Could I am you to check the progress via Dr McBurnie's files again Mr Brown?

Clearly I would have liked Dr McBurnie to keep to his word and inform me of the progress ....but,as he hasn't, my only recourse is to ask you once again to respond to the request.

My reason is that, as I am writing some evidence for PACAC to consider I wouid have preferred to state that matters have improved, and that the PHSO have now recognised the NHS file witholding problem. And that complaints cannot be evidenced without them.

All I can write at present is that the PHSO has continued to ignore this major problem and consequent pleas from complainants. And that I was misinformed by Dr McBurnie.

There is little point in taking this request via the ICO as, by the time PACAC sits, the complaint will still not be resolved.

However if you state that you have asked Dr McBurnie for his files and still drawn a blank, then that is the course I must take.

Please let me know the outcome ASAP.

Yours sincerely,

[Name Removed]

Gadawodd D. Speers anodiad ()

Very worrying....seems "dressing is (STILL) all in the window."

Gadawodd A.E. anodiad ()

...Yes - and the gall of behaving this way when they are busy "mythbusting" stating the contrary too!

Gadawodd [Name Removed] (Ataliwyd y cyfrif) anodiad ()

Its just collateral damage for the NHS .

Boards just get ticked off by the Ombudsman for 'poor paperwork keeping'. ...Almost a clean record.

When the Ombudsman upheld my complaint, the term used to describe the missing medical files was 'evasive' the buds an knew there were files missing but couldn't do much about it. ...leaving the NHS free to continue any negligence.

Which it is alleged it continued to do - with elderly patients.

From other the cases I've read, file 'withholding' and destruction usually involves NHS deaths.

So I'm more sad than annoyed that the PHSO hasn't made any progress towards dealing with Trusts that consistently withhold evidential records.

Trusts employ complaints teams, external advisers and expensive lawyers - at huge public expense.

The bereaved are still grieving and untrained legally and medically, and trying to make sense of the 'edited' and 'missing' paperwork.

So it's time to even up the complaints system - with some support from the PHSO.

Gadawodd Colin Hammonds anodiad ()

...I would like to suggest the following.......if for any reason whatsover files go missing then in which case the complainant automatically wins the case.......I can assure all concerned that if this practise was put into place no files would ever go missing....!

Gadawodd A.E. anodiad ()

There should be a statement made by PHSO when files are clearly conveniently "missing", that it is deemed deliberate and sanctions must be forthcoming.

Much like in court, when people state something and the judge doesn't believe it, s/he will say so. In family courts, the balance of probabilities is only 51% and if it's good enough to take someone's children with then it's more than good enough for PHSO to use as a damning indictment of the guilt of the body and to hold that they are an "unreliable witness" and therefore nothing they state is trustworthy.

So yes, I think the complainant should win the case by default. When vital paperwork is "missing" then the onus should be on the body/NHS to prove the complainant is in error.

Gadawodd A.E. anodiad ()

I suggest another question is added to this FOI request:

"In how many complaints made to PHSO in the last 5 years have files been missing?" (with a reducable timespan if applicable due to exemption purposes).

Gadawodd [Name Removed] (Ataliwyd y cyfrif) anodiad ()

The PHSO will tell you it's too much work to find out.

:::

But I've suggested something of the kind - in evidence to PACAC.

( My evidence may not be accepted..... In fact, I think it's rather unlikely).

::::

Also that the PHSO should be able to recoup its own costs (plus complainant costs ) when it upholds a complaint against a Public authority.... From that public authority ...Following the lines of the Financial Ombudsman Service.

With a financial incentive, it should considers complaints more fully than it is doing at the moment.

So it should be able to cover most of the £37m it spends from the public purse.

Tough luck on negligent public authorities. Their CEO's might be keener to get a grip if they have to explain financial loss to their boards.

As it operates at the moment, I would estimate around half of the PHSO's £37m goes straight down the drain.

Hopefully with more incentive , it will also stop being part of the 'Old Boys Club' with the PA's and start functioning more on behalf of the untrained complainant.

It's a gamechanger and it needs to be ....b ecause complaints are now up against the well paid lawyers of the PA's, who can run up enormous bills defending their negligence and waste public money.

Gadawodd E. Colville anodiad ()

With apologies JT Oakley for not having been more attentive in following this request.

PHSO's responses contradict information they disclosed to me in 2014 covering their "keywords" and project "themes" as at April 2013. See: https://www.whatdotheyknow.com/request/f...

Keywords included: "Lost documents"; "record"; "record keeping"; "report- inaccurate". In relation to the Ombudsman's Principles of Good Administration covering: "Being Open and Accountable" keywords specifically include "Poor record keeping".

Last but not least see the Table of Casework Themes for implementation 1 April 2013 - Theme Name - "Declined due to poor/absent records"; "Notes - Agreed by the Ombudsman 17/03/10: cases that are declined at further assessment".

In the light of this information it would seem that the appropriate PHSO 'keyword' that most accurately defines their handling of your request is
" misrepresentation".

PHSO should also reflect long and hard on its Principle: "Seeking Continuous Improvements" covering as it does "Poor systems to capture and review learning".

As director of risk management and compliance, Steve Brown's assertions on the apparent discretionary nature of caseworkers (and their supervisors) freedom to "choose" whether or not they incorporate applicable "keywords" relevant to complaints is unimpressive.

In addition to the issue of "misrepresentation" PACAC should also be very concerned that PHSO's record keeping is about as defective as it could possibly be in terms of being able to give adequate assurance of accuracy and truthfulness.

Gadawodd [Name Removed] (Ataliwyd y cyfrif) anodiad ()

Thank you E Colville,

I'm most obliged.

The PHSO seems as adept as other PA's for withholding FOIA information.

:::

From the above , it would seem that, once again, the PHSO has not only been 'unreliable' in its statements to complainants and continues to withold information.

Here's two examples when it witheld legally due files to me:

1. Before court, the PHSO witheld crucial 'confidential files,' which should of been disclosed to me, pre-court.

The ICO had to step in - as the case listed evidential files should be available to both parties, to argue out the case.
(Upheld in my favour btw....The Tribunal couldn't find any solid evidence from the PHSO. And the confidential files suported my case.).

2. I could put it down to an oversight, but the crucial file from my service compaint was ALSO witheld from a SAR.

....Until I spotted that the decision in my initial complaint was missing - and asked to read it.

Apparently it had been 'overlooked'.

An apology given.

::::

Since reading the pre-court internal files between the PHSO and the ICO, (in SAR files provided by the ICO )I am saddened that my opinion of the PHSO's integrity has plummeted.

SAR's ...FOIA
I would therefore warn other PHSO complainants not to expect that all the files -required under the law -will be provided.

1. To look for the logical gaps in the paperwork, which in my two cases, helped lead to them both being upheld.

2. And to make sure they get the audit records, which the PHSO doesn't seem to want to supply at all - but which should be included in SAR's.

Gadawodd phsothefacts Pressure Group anodiad ()

The way PHSO handle missing evidence should be put to PACAC for the scrutiny meeting. No evidence = no case.

http://www.parliament.uk/business/commit...

Gadawodd A.E. anodiad ()

JT Oakley, hence I said

"(with a reducable timespan if applicable due to exemption purposes). "

That's how to get round PHSO claiming it's too time-consuming or costly. Reduce it down to an option they cannot deflect. Work out percentages based on that, even if it's only a year's worth.

Gadawodd Mary Rains anodiad ()

This is appalling! We now have an Ombudsman's Service (PHSO) guilty of precisely the same failings as those public bodies which it is set up to 'investigate'!!! PHSO should be routinely collecting data and regularly informing PACAC of the numbers of complainants who state vital evidence is missing, amended etc from their files. Without such information PACAC will always be able to plead ignorance and consequently these matters will NEVER get raised in Parliament.

Gadawodd [Name Removed] (Ataliwyd y cyfrif) anodiad ()

Not really AE....

The PHSO had an open goal to kick some good news into - in time for PACAC.

To show it was getting a grip on this pervasive problem.

A real win for reputational defence....

QED .......But it couidn't even manage that.

Gadawodd [Name Removed] (Ataliwyd y cyfrif) anodiad ()

Well fancy that.. Dr Gavin McBurnie was telling me the truth.

And he did visit one Trust that witheld files. Which I knew, ( see above) but the FOIA presumably didn't.

Seems the FOIA team couldn't be bothered to ask him for his little list.

Even though I asked them to....because I knew it existed.

FOIA fail once again,

Here's Dame Julie Mellor letting the cat out of the bag to PACAC.

Dame Julie Mellor: All our quality checks indicate that that is happening. Certainly those statistics, which I have just outlined about that review, was because our staff were saying they were concerned about the quality of local investigations and that is why we reviewed cases that had come in. We could do that only because we had taken on more cases, because last year we did 400 cases about alleged avoidable death, whereas that was the total number of investigations we did two years ago, so our data shows that we are an organisation that is challenging NHS organisations.

To give you a concrete example, I was talking to a colleague yesterday who was saying that, wherever there is inconsistency in the evidence that is not congruent between what the complainant says and what the body says, we will look to triage that evidence.

Recently, our director of investigations had a case where they felt the evidence was not congruent, so they went and looked in the cupboards of the trust, and their hunch was right and they found records that had not been supplied.

We will always look to triage where there is that discrepancy between the parties. That could be interviewing; it could be going and visiting; it could be saying, “We know there are more records. We need those records”; or it could be threatening to use our powers to gather evidence.

:::::

From the above, presumably all this triaging and listing of witholding file Trusts is totally unknown to the FOIA department.

But the conclusion is that either Dame Julie Mellor is not telling the truth to PACAC , or the FOIA team has no idea where to look for the files.

Gadawodd Fiona Watts anodiad ()

Dr Gavin McBurnie telling the truth? Really?

Gadawodd [Name Removed] (Ataliwyd y cyfrif) anodiad ()

I assumed that he was telling me the truth.

But then I trusted him to keep his word and keep me informed if the PHSO was going to do something about one of the biggest problems complainants face.

Perhaps they locked him in the cupboard?

Gadawodd Brenda Prentice anodiad ()

Clearly there seems to have been some sort of dictat to the hierarchy forbidding contact with plebs, sorry I mean clients.

Gadawodd [Name Removed] (Ataliwyd y cyfrif) anodiad ()

I think you must mean 'Customers in their Journeys' , as the PHSO would have it, Brenda.

Ticket destination not 'Enlightenment' - but an unknown Circle of Hell in which you ask reasonable questions but hardly ever get answers..or your request is Vanity Vexed for daring to ask for somewhere to send correspondence, where you - at least- get a receipt.

If Dr Gavin McBurnie had a list offending NHS Trusts, as he stated, that is a file document and should of been supplied.
Or denied by the PHSO team - confirm or deny...since I've specified it.

Or I should of been given a reason why I couldn't read it .

The response has made Dr Gavin Mc Burnie out to have 'manipulated the truth'.

Which I don't think is true, as he was the driver for the PHSO's Sepsis campaign.

::::

The fact remains that the PHSO - in the form of Director of Customer services Annette John - states that the PHSO will not be pursuing witheld medical files, which stop complaints from complaining.

She states: 'We are not minded to investigate the matter of clinical record keeping as a systemic issue'

NB Note that ' withholding, destroying and editing' has now been classed as 'keeping'..although it's just as illegal.

And it's medical, not only clinical files that are being witheld. My understanding is that medical are the notes that are made by the bed - and clinical are the drugs etc,p.

Although I may have been misinformed on this point- as the NHS witheld 'clinical' files ......on the grounds I had only asked for 'all medical files'.

::::

And Dame Julie Mellor Melor is stating the contrary to the Parliamentary committee, with some degree of front.( above).

Perhaps the Dame should sort out exactiy what the PHSO policy on this issue which has stopped so many bereaved ( and other) complainants from making their cases.

Gadawodd A.E. anodiad ()

JT Oakley do you have a link to the particular PACAC meeting DJM said this at - I shall be quoting this to PHSO staff forthwith because I have proof my trust lied and PHSO simply accepted their lies.

Gadawodd [Name Removed] (Ataliwyd y cyfrif) anodiad ()

The Dame Julie Mellor PACAC quote is dated January 12, 2016

And the Annette John quote is in a letter to me - stating why the PHSO is not pursuing NHS evidence nobbling
Dated: January 20, 2016.

She states that although Dr McBurnie's job to 'look into a number of individual complaints
that raise similar, or related issues' ....the PHSO will not be investigating this issue.

She indicates that PHSO considers withholding files to be a rare occurrence - and not worth investigating because so few people complain about it.

As you can read, the PHSO request reponses state it isn't keeping a log where complainants have made this accusation.

Therefore it must be difficult for the PHSO to quantify whether there are a 'number of individual complaints that raise similar, or related issues'...or not. So there is no absolutely statistical basis for deciding this isn't a systemic issue.

Even though Dr McBurnie told me that the 'PHSO knew which Trusts witheld files on a consistent basis'.

Perhaps the PHSO's management should talk to each other occasionally and develop a sensible PHSO policy on this issued - based on statistical research from complainants.

Instead of asking whether they are content about the PHSO's service - or not.

Because seemingly they PHSO has missed one of the most prevalent and complained about issues ......which prevents so many complainants from receiving a fair PHSO investigation.

Gadawodd A.E. anodiad ()

Thanks very much for the link JT Oakley.

Clearly if something isn't being monitored any statement made about it can only be false, because it is at best a guess.

It also does not bear in mind that individual PHSO staff may be hearing from complainants reporting the issue separately, but if none of them discuss it together nobody will know that it's not just the odd one here or there!

I don't believe a word that comes out of PHSO. It's all spin and not at all based in truth.