Audio-recorded evidence of medical malpractice

Jim Otram made this Freedom of Information request to Parliamentary and Health Service Ombudsman

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Dear Parliamentary and Health Service Ombudsman,

The PHSO will be aware from various media that, in increasing numbers, patients, as they are legally entitled to do, are taking audio-recordings of their consultations with NHS clinicians (either overtly or covertly).

In respect of its responsibilities as regards the Health Service, and specifically as regards recordings taken by patients as described above, does the PHSO have (or has it had) any policy:

1) which has, in the last 12 month period for which the data is available, led to the exclusion of such recordings, and or transcripts\ thereof, from consideration by the PHSO when submitted to it as evidence in connection with an unresolved complaint; and\or,

2) which might lead to the exclusion of such recorded evidence and/or transcripts from consideration by the PHSO in its handling of complaints by patients in the future?

Please supply all recorded details of any such policy, together with, if recorded, the legal authority on which the PHSO relies or relied in seeking to impose such a policy.

If the PHSO has and\or has had no such policy or policies, please simply say so.

I look forward to hearing from you by email at the address from which this enquiry is sent, within the statutory period for compliance.

Yours faithfully,

Jim Otram

foiofficer, Parliamentary and Health Service Ombudsman

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Ombudsman. This return e-mail shows that we have received your
correspondence.

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Jim Otram left an annotation ()

The prompt for this enquiry is a Consumer Action Group thread:-

http://www.consumeractiongroup.co.uk/for...

- more specifically: the posts of 11 09 2014 numbered 827 and 832.

I have agreed with the originator of that thread to follow up the issue here, and I am sure he will provide a link back to this site once any response has been received.

What is alleged by the contributor of post 827 is potentially very serious, but I am hoping this is some kind of misunderstanding or other form of 'one-off'.

The General Medical Council tried to exclude covertly-recorded evidence from consideration in a disciplinary hearings last decade - until a different regulatory body got the High Court to overrule the decision. Since then several covert recordings have been listened to by the GMC (or, now, the 'Medical Practitioners Tribunal Service'), and indeed have led to the erasure of doctors from the medical register.

Would it be beyond the realm of possibility, though, for the PHSO to try the same tactic as it were behind the scenes, relying on the inability of aggrieved patients to gain further redress against such unfair and discriminatory administrative action on their own?

As I say, I hope not - but let's see.

I would be glad if any other enquirer with experience of this particular issue chose to annotate here.

foiofficer, Parliamentary and Health Service Ombudsman

1 Attachment

Dear Mr Otram,

 

Re: your information request FDN-201877

 

Thank you for your email of 12 September 2014 in relation to PHSO’s policy
about considering audio recordings of consultations as evidence.

 

Although we do not hold a specific policy on this topic, we do hold a
legal briefing note to PHSO staff about the use of audio and video
recordings as evidence. As you will see from the note, PHSO can and does
consider relevant evidence of this kind in coming to a decision on a case.

 

I hope the information provided is helpful.

 

Yours sincerely

 

Luke Whiting

Head of FOP/DP

 

show quoted sections

All email communications with PHSO pass through the Government Secure
Intranet, and may be automatically logged, monitored and/or recorded for
legal purposes.
The MessageLabs Anti Virus Service is the first managed service to achieve
the CSIA Claims Tested Mark (CCTM Certificate Number 2006/04/0007), the UK
Government quality mark initiative for information security products and
services. For more information about this please visit www.cctmark.gov.uk

Jim Otram left an annotation ()

Laugh or cry?

In all fairness to the PHSO, it HAS addressed the queries I raised. It does NOT have a 'policy' which automatically excludes evidence recorded by patients, covertly or otherwise, and that is the principal point to take away from here, I would suggest. It's certainly what I
hoped to establish.

Further, in a way which I think fairly complies with both the letter and spirit of the FOI Act, it has stepped outside the strict letter of my FOI request and provided us with a copy of an internal "legal briefing note" which covers the spirit of my enquiries as well. From this, it is indeed clear, and in terms, that there is no 'under-the-covers' or 'de facto' blanket exclusionary system in operation either. Squarely done, without invoking legal privilege exemptions, and thank you.

What might prompt tears, is the riotous inaccuracy and muddled thinking (and language) of the legal briefing document itself.

For goodness sake let nobody here think the law is accurately summarised – in virtually any of several respects it touches on – at any point. Much of it is just repeatedly, materially, and plain, point-blank, wrong, I regret to say.

I'm not sure I currently have the time, or whether this is the place, to take the document apart line by line, but should the PHSO – which monitors our annotations here with care – wish to take me up on the subject, I would hope to be able to set about such an exercise at my leisure at some point in the future. It would take quite a while…

For immediate practical purposes, here's a possible course of action:

1. Submit a transcript of any recording together with a copy of the recording itself.

2. If you find, that despite there being no 'policy' to that effect, the evidence has in fact been 'excluded' by a case officer on any basis which appears to stem from the 'legal briefing' we can now see – don't hesitate to 'appeal' within the internal review structure at the PHSO. The chances are overwhelming that the exclusion will NOT comply with the PHSO's statutory obligations to consider all proper evidence

For instance, it is NOT open to some junior clerk to fail to consider evidence just because they don't think it is 'fair'. If it is relevant, it must be considered. The weight subsequently attached to it is a separate consideration - for which separate reasons must be given.

PS. For telephone calls, use a stand-alone device (your mobile with its recording app. for instance) to record a separate 'telecommunication', e.g. by being held close to the ear-piece of your landline. Tell the PHSO that that is how the call was recorded. The RIPA cavils raised in the 'briefing' then fall away because it is not an interception covered by the Act.

[Name Removed] (Account suspended) left an annotation ()

Thank you for the technical advice - but you should understand that the PHSO's external investigators don't even accept taped evidence of how PHSO employees behave:

I made a complaint about an arrogant PHSO employee, who, according to the internal notes, just couldn't be bothered to listen to - or understand- what I was saying, during a phone call.

She rang me, so the answerphone cut in - as I was slow in replying..having been waiting over a day for a phone call, which should have come 'after lunch', the day before....(PHSO employees must have very long lunches).

This is the first sentence of the complaint, so the external investigator was under no illusion that I'd taped the phone call.

'The conversation started with me apologising for the fact that our conversationwas being taped, via answerphone'.

Yet, in his summary of the investigation of the complaint ( of course the complaint was not upheld - as PHSO employees are always 100 percent polite and attentive) he states:

'One other issue strikes me as worth raising: If, as I understand, you do not have a system of recording telephone conversations betwen caseworkers and complainants, I am prompted to ask whether the possibility of introducing one has been considered.

So many systems seem to be in place these days, it might be asked why the Ombudsman does not have one. Technical and practical issues would no doubt arise, but it struck me that the complaint about X's handling of her telephone conversation with Mrs TO would have been easier to address HAD A RECORDING BEEN AVALABLE' .

So there you have it.....

If you make a recording, it's not admissible as evidence.

If the government organisation does - it is.

::::..

And will the PHSO leave itself open to fair investigations of exactiy what its employees are saying - and the treatment meted out to complainants?

I wouldn't hold your breath...

https://www.whatdotheyknow.com/request/t...

Jim Otram left an annotation ()

Thank you for taking an interest in this query. Reciprocally, I am very interested in the point you bring to bear.

Telephone calls are, regrettably, in a somewhat special category as far as recorded evidence goes, and the relevant statutory provisions are, for the most part, both poorly drafted and, increasingly, out of date. And they do produce anomalous results.

Before examining the actual law which might apply to your facts (as opposed to the "briefing note's" frequently inaccurate 'explanations'), I wonder if you have the time and inclination to fill me in on a few more of those facts. While I have former colleagues who have had bitter (and unprintable) things to say about the PHSO, my own direct experience is limited to helping in one particular case (which went so-so) several years ago.

Who are these external investigators? Are they same people to whom one would complain seeking a review of, say, the report issued by the PHSO at the end of an investigation? In any event, are they genuinely external\independent? (If so they shouldn't feel them selves trammelled by the inaccurate expositions of a briefing note "to PHSO staff", as it was described in the response just received – or even be aware of it.)

Did you actually send them a transcript of the recorded call and\or a copy of the recording?

Did they tell you why they failed to consider the evidence – with reference to relevant statutory provisions? Do you retain the actual words used? Are they in the report on your complaint?

[Name Removed] (Account suspended) left an annotation ()

This is the process (and how it worked in my case).

::::

You make a complaint that the Head of Review (HOR) has made a mistake on your case.

- This is quite difficult because of the scanty reasoning for the judgement on your case which is given by the HOR on the closing your case.

What you get is basically a 'Because I say so' letter. But what there is, hasn't made any sense.

So if you want to find out why your case failed - you must immediately ask for all the internal files under FoI and SAR.

Once you've read them and found a mistake, you cannot appeal to rhe HOR's the line manager the Legal Advisor(LA) , as the LA won't take phone calls from the public ...and you are not allowed to know their email address. Letters are ignored.

The LA is in control of both the Review and the FOI teams.

....And the external advisors, who are employed on contracts. And I expect they'd rather like to keep them.

If you try to further your complaint to the LA's senior officers .. They will also ignore you.
And all bounce your complaint back to the HOR. You may, or may not get a reply saying nothing, or a compliments slip.Which is extremely frustrating if you have given sensible reasons why your case has not been investigated properly.

I wrote to Dame Julie Mellor ...On the grounds that if I had later to refer my case to a judicial review - and won it - there would have been no argument the Ombudsman had been personally unaware of the case.

Given this system of stifling justified complaints, the press could be your friend at this point.

::::

The bizarre handling of a complaint against the HOR is that the HOR gives your case to one of her own team to assess whether or not he/she has made a mistake.

The HOR then also chooses the external advisor.There are around four external advisors.I was lucky. Mine seemed to be sensible and understand the legal points.

I had insisted the investigation be ceased while I checked that nothing on file was missing in the information returned under the FOIA.

In my case, there seemed to be no signing off of the case..the reasoning missing from the dismissal letter, which I had been chasing.

So the case completion file note was still missing.
I reminded the PHSO of its legal responsibilities under FoIA . It is illegal to withold records. And asked them to check again.

The file decision- which proved that the HOR did not understand the case when she signed it off - was then provided by the FoI team - with an apology. I then had the necessary evidence which proved beyond doubt that my case had been mishandled.

::::

The external advisor is then supposed to speak to you by phone. I insisted on written communication only so that I had a ready record too...having read the standard of the internal note-taking. And now not trusting that crucial file information would not be 'overlooked ' again.

So you could tape this. But my advice is never to speak to anyone on the phone. Because your tape is worthless.

You ask if I offered the tape. ....

After the 'temporary withholding' of the crucial handwritten evidence by the Foi team , I deliberately left it hanging as the first sentence of my complaint . As a test of the external investigator's independence.

My logic was that, as a first sentence, it was unmissable.

If he didn't ask for it - then it would be clear that he had no intention of properly investigating the complaint.

Nb The employee taped was not the HOR......Strangely, the PHSO had insisted on rolling a personal complaint against this employee, which could of been handled by a line manager ...into my complaint that the HOR review had not properly considered the legal points of my case.

But if I had had to go to a judicial review - I would have used this disinterest - and dismissal - of potential evidence ,
as a point towards the indication that my case had never having been properly investigated, taking all the available evidence into acount.

However, the external investigator upheld the important points of the case and even commented that the delay by the PHSO ( around a year) could have had serious consequences legally, so I didn't think it worth pursuing.

Why?

1. The external investigator's decent appraisal of the rest of the case, led to criticism of the HOR's handling of it.The HOR admitted that she had failed to understand or investigate it properly.

It is now being competently considered by the Directorate of Investigations, with an intelligent application of the legal points..at last. So the PHSO has employees that can - and will - investigate a case properly.

2. Because I don't think that the style of one employee is representative of a whole organisation.

The supremely arrogant and dismissive style may have been representative of the old Ann Abraham's era.
As my complaint came later - under Dame Julie Mellor's auspices - I cannot judge.

But I believe that there are efforts now being made to change this seeming underlying contempt of complainants.
Especially bereaved ones.

And that because my complaint is on record, it must be a warning to this employee not to treat a complainants so peremptorily, to listen - instead of just talking over a caller and not to take inadequate file notes again.

Meanwhile, I still have the tape. Which could, of course, be publically played via the Internet.

Della left an annotation ()

Thank you Mr. Otram for revealing this interesting information regarding PHSO use of audio recorded evidence.

Jim Otram left an annotation ()

Thank you Della. And thank you JtOakley for that useful insight into PHSO procedures. In the light of your having decided to 'park ' your complaint about the telephone conversation in favour of keeping your sights on the 'head of the beast' - which certainly strikes me as an eminently sensible tactic - I won't seek to pontificate further here about the details of potentially applicable law. Best of luck with your ongoing battle.