30th June 2016 [Blog No. 69]
Hello again, it’s me, Peggy
I met with the Rt. Hon Sir Kevin J Barron MP on Saturday 8/2/2014 after
him bringing my complaint against the PHSO up in the House of Commons on
6/2/2014. Blog 44 on 9.2.2014 refers. I am entering the sound recording of that
meeting below here.
See also below a copy of that debate as published by House of Commons
Hansards.
House of Commons Hansard
Mrs M. Barnes (NHS Treatment)
06 February 2014
Volume 575
Motion made, and Question proposed, That this House do now
adjourn.—(Mr Foster.)
·
Kevin Barron (Rother Valley) (Lab)
I thank Mr Speaker for
allowing me to raise this subject in today’s Adjournment debate. I understand
that he makes the decision on a Thursday afternoon.
I wish to discuss the
treatment of a constituent of mine, Mrs Monica Barnes, who lives in the village
of South Anston. I have been dealing with her over many years now, regarding
different aspects of her health care, but my reason for wanting to speak today
has to do with what has been recorded on her patient records at the Kiveton
Park medical centre and the effect it may have had on her clinical treatment.
Mrs Barnes wrote to me
on 5 July 2002. She said:
“Whenever I have
attempted to obtain treatment some reference to litigation past or present has
shown itself in my medical records and/or in letters of referral from the GP.
This clearly shows there to be discrimination in my case. This time reference
is made in the Patients Summary to the court case. See copy sent to me in very
small print, enclosed.”
I have indeed got the
patient’s summary. It is dated 18 January 2001. On the bottom, it says “await
judges ruling”. My constituent contacted the Information Commissioner, and a
letter was sent to the practice manager on 5 September 2002. It contained the
patient’s summary and the court case entry. It said:
“In order for me to
assess the practice’s compliance with the First Principle, I would be grateful
if you could confirm whether individuals are made aware that personal data
about them may be disclosed to other health professionals in the course of
their care and treatment and the extent of such disclosures. In particular,
could you please confirm whether such data as were disclosed in Mrs Barnes’
case are disclosed to other health professionals as a matter of routine, which
of the conditions in the Schedules the practice is relying upon in order to
make any such disclosure and whether individuals are made aware of the
disclosure. Given that Mrs Barnes did not expect this, I would also welcome
confirmation of these issues with regard to her case. If there is no legitimate
basis for holding and disclosing the data in question when Mrs Barnes did not expect
such processing, it is likely to be in contravention of the requirements of the
First Principle.”
Mrs Barnes received a
reply from the Information Commissioner on 6 March 2003. I have to say that the
Information Commissioner had to write to the practice on 16 December to remind
it of the letter it had been sent on 5 September 2002 about what was held on
Mrs Barnes’s record.
Mrs Barnes received a
reply from the Information Commissioner. It said:
“I understand that
having considered its relevance to your patient summary records, the practice
has removed the entry which states “court case”. (I have requested that the
practice ensures that this does not appear elsewhere in your medical records).”
That was dated 6 March
2003. Presumably, my constituent would have been quite happy with such a
positive reply. The letter went on to say:
“Consequently, on the
balance of probabilities it does seem that the data in question is not relevant
and is excessive for medical purposes. It is also our view that on the balance
of probability it does seem that it was not necessary for the practice to
disclose the details without your consent, when you did not expect this.”
That is a pretty firm
statement that the Information Commissioner felt that it was wrong for the
records to have been kept in such a way.
In the autumn of 2010,
Mrs Barnes decided to join another practice in central Rotherham that had been
built in the walk-in centre that had been opened. Her medical records were
requested by the South Riding Health Services Support Agency, an organisation
that I had never heard of in my 20-odd years as an MP, and they were sent on 3
November before being sent on to the new practice in Rotherham town centre.
When Mrs Barnes visited her new doctor in November 2010, the practice had her
medical records but on her next attendance her new GP said that he did not have
them. Mrs Barnes told me that she was prompted to investigate their
whereabouts.
In 2011, Mrs Barnes
asked me to write to the chief executive of NHS Rotherham, who wrote back to me
on 11 March saying that he had had the case investigated by his complaints
officer who confirmed that the notes were sent on 3 November. The chief
executive went on to say:
“However, I am informed
that shortly after forwarding the medical records…the…practice received a
letter from the Information Commissioners office advising them that the
amendments were to be made to Mrs Barnes’…records. In order to comply with the
Commissioners advice, the notes had to be retrieved from Mrs Barnes’ current GP
via the SRHSSA. Whilst it is acknowledged that the Kiveton Park practice had
Mrs Barnes’s medical records for several weeks, it is important to note that
implementing the Commissioner’s advice was onerous.”
The chief executive
wrote to me on the basis that the submission from the Information Commissioner
had come in around November 2010, when my constituent was moving to another
GP’s practice.
I then received a letter
from NHS Rotherham on 1 June 2011, which accepted that the Information
Commissioner’s advice was given in 2003 and not more recently, as mentioned in
the chief executive’s letter. That was the reason for the retrieval of the
records from her new GP, as it was felt “prudent” that the medical records
should be reviewed for absolute accuracy. The two doctors concerned verified
that the removal of information as advised by the Information Commissioner had
been carried out.
Mrs Barnes referred her
case to the ombudsman. She wrote to me in October 2011 setting out a number of
instances in which she believed discrimination might have taken place and said
in that letter:
“When I assessed my
medical records at the Sheffield Northern Hospital in June 2011, I discovered
that reference to court case etc, was still to be found in my patient summary.”
It seems clear to me
that the advice of the Information Commissioner given in 2003 was not adhered
to. The instruction was to remove that reference from her medical records in
the practice and anywhere else it might appear.
I got involved with the
Parliamentary and Health Service Ombudsman on Mrs Barnes’ behalf and
corresponded with the office in December 2012. The ombudsman had earlier
refused to investigate the case until the medical practice had the opportunity
potentially to offer Mrs Barnes some compensation. That did not materialise,
for whatever reason. My understanding was that the insurers might have wanted
to consider the case and decide whether to take any action. In a letter to me in
December 2012, the ombudsman asked Mrs Barnes for further clarification in
three areas. The first was whether she had considered taking a legal remedy and
why she might not have chosen to do so. The second was the level of
compensation she hoped to recover. The letter said:
“The Ombudsman does not
operate a tariff system and we are very much guided by what people hope to
achieve. The levels of financial redress we may be able to recommend are modest
when compared to sums that could be recovered by legal action and it is helpful
for us to know whether we would be likely to meet the financial outcomes a
complainant has expressed. This helps to ensure that they can be quickly
directed to the most appropriate route to consider their concerns and helps to
avoid complainants being dissatisfied at the outcomes we may be able to offer.”
The third point related
to how Mrs Barnes felt that she had suffered damage as a result of the
practice’s failings.
Mrs Barnes came back to
me on this matter and we discussed in some detail how she should respond. In
March 2013, I wrote to the assessor at the health service ombudsman saying that
Mrs Barnes and I continued to be unhappy with the handling of her case. I
reminded them that a letter I had received from them on 28 March 2012 stated
that
“the Ombudsman will not
normally consider a complaint unless the NHS organisation concerned has had a
reasonable opportunity to resolve the complaint”.
I then went on to say
that in relation to their letter dated 11 December, Mrs Barnes did not wish to
go down the legal route because of the potentially high costs involved.
In relation to the
ombudsman’s comment about the compensation that Mrs Barnes would wish to
recover, as I have already pointed out, I said that
“she cannot risk going
down the legal route because of the cost. Consequently, she feels the only
route she has open to her is to go through the Ombudsman”.
I then said that I would
appreciate it if they could be more specific about what level of financial
redress they may be able to recommend if they were to settle the case for her.
They told me that they had no tariff, which I quite understand.
On the third point, I
reiterated that Mrs Barnes had previously provided them with information on how
she felt about the damage suffered as a result of the practice’s failings. It
was not just the one incident; there were many other incidents in the letter
that I received from Mrs Barnes at the time.
Further correspondence
took place between Mrs Barnes and the ombudsman, and in a letter to them, no
doubt in her frustration, she said:
“I refuse to involve
clinical negligence solicitors due to my having taken legal action against a
particular hospital in the past with no outcome.”
Hence, presumably, the
reference on her patient record. She went on to say:
“The only people who
seem to benefit from litigation are the solicitors themselves. I refuse to
further fill their pockets and barristers’ pockets with taxpayers’ money.”
That quote was used in a
letter sent to me dated 18 June from the ombudsman’s office. Also in that
letter it was stated:
“Mr and Mrs Barnes
complaint correspondence referred to a number of other interactions with NHS
Care that did not involve the practice since around 1990 and were not part of
our considerations”.
That is an important
point, and I agree with it. This complaint was about the issue of what was on
Mrs Barnes’s medical record and how it may have been used by others if they had
seen what was on that.
After further
correspondence, I received a letter from the director at the ombudsman’s office
in August 2013 after a review had taken place of the action/inaction of the
ombudsman’s decision not to progress the complaint. That letter stated that
when I wrote to the ombudsman on 24 June 2013 I had said that Mrs Barnes was
unhappy with the decision because she did not have the money to take the case
to court. It was said that Mrs Barnes had previously told the ombudsman that
she was not prepared to put money into the pockets of solicitors and
barristers, but not, so far as I can see, that she could not afford to take
legal action.
The letter continued:
“However, while a
person’s ability to pay legal costs is relevant in cases such as this, it
cannot be the sole factor. Mrs Barnes is seeking damages for personal injury
that she says she has sustained at the hands of a number of clinicians over
more than 20 years and her claim arises from an action for which the law
provides a specific remedy. In the circumstances we agree with our original
decision that the matter is properly for the courts and is not one we should
investigate.”
·
Dr Julian Lewis (New Forest East) (Con)
This is a very
complicated case and I just want to be sure that I understand exactly what the
ombudsman is recommending. My understanding is that the ombudsman is recommending
that a lady who has had a lot of trouble because she once previously went down
the legal route should, instead of pursuing a complaint about that with the
ombudsman, go down the legal route all over again. Have I got that right, or am
I missing something?
·
Kevin Barron
The hon. Gentleman is
absolutely right. What gets me about the last two letters more than anything
else is the fact that they are completely contradictory. The first states:
“Mr and Mrs Barnes’
complaint correspondence referred to a number of other interactions with NHS
care that did not involve the Practice since around 1990 and were not part of
our considerations”.
The last letter
basically states, “No, we aren’t going to pursue any action at all. We’re not
going to look at it.” It then states—I am sorry to repeat this, but I think
that it is important—that
“Mrs Barnes is seeking damages
for personal injury that she says she has sustained at the hands of a number of
clinicians for more than 20 years”.
They are completely
contradictory.
It seems to me that the
parliamentary ombudsman, which is also taxpayer funded, has not only made contradictory
statements, but handled Mrs Barnes’ case in a negative way. As we discussed
when she and her husband visited my office, which they did on several
occasions, this was not about what had or had not happened to her with the
medical professional over the years; it was about what had been held on her
personal records. In 2003 the Information Commissioner said that that was
wrongly done and suggested it should be removed. We then found out that in 2010
the records were scooped back in again when they moved to another practice. I
can only assume that the chief executive of NHS Rotherham did not know about
the Information Commissioner’s decision at the time, because the second letter
I received from the chief executive stated that it was
more recent than he had been led to believe and that the records had been
brought back from the new practice because they had just received information
from the Information Commissioner that they had to change them.
I am deeply concerned
about the situation. My constituent has effectively been railroaded into a
situation she does not want to be in, and that she should not have to be in.
Indeed, the British taxpayer has been railroaded into a situation that I do not
think it should be in. My constituent said, not with my blessing—I give it my
blessing now, though—that far too many people are forced into litigation in
this country, at taxpayers’ expense, rather than following common sense by
sitting down, looking at the problem and deciding what should be done sensibly,
not feeding the law courts.
I have to tell the
Minister that I am deeply disappointed that the Parliamentary and Health
Service Ombudsman—I know that it is not directly a part of Government—can be
run in that way and make those contradictory decisions. It seems to me that its
decision is this: “We don’t have to do anything, so we’ll force her back to
litigation if she does not want to go. That’s the end of the matter.” That
cannot be correct, and I would like to know whether the Minister agrees.
·
The Parliamentary Under-Secretary of State for
Health (Dr Daniel Poulter)
I congratulate the right
hon. Member for Rother Valley (Kevin Barron) on securing the debate and commend
him for all the work he has done on behalf of his constituent, and for the work
he did in the previous Parliament, before I was a Member, as Chair of the
Health Committee. I know that he has a long and distinguished record of fighting
on health issues in the House, for his constituents and more generally. I also
congratulate him on his recent knighthood. I am sure that the House will echo
those congratulations.
We can all agree that
good-quality patient care is expected, regardless of which part of the country
we live in, and that all patients should expect it. I pay tribute to the NHS
staff in the right hon. Gentleman’s constituency for the work that they do.
I am sorry to hear about
the difficulties that Mrs Barnes has experienced and that she is dissatisfied
with the quality of the care she has received. It is never acceptable for a
patient to receive anything less than the very best treatment and service from
our NHS. However, I am sure that all hon. Members will appreciate that the
provision of local health care services is a matter for the NHS locally and
that the Department of Health and Ministers do not play a role in directly
investigating individual localised health care complaints, which should, quite
rightly, be investigated without political interference to ensure that there is
no question of bias. There is an NHS complaints procedure to resolve concerns
and to help local NHS organisations to learn from the experiences of their
patients. On the anniversary of the Mid Staffordshire scandal and the Francis
inquiry, it is right that we reflect on the fact that we have to learn from
things that have gone wrong in our health service and make sure we put them
right for the benefit of future patients.
I understand that, as
the right hon. Gentleman outlines, Mrs Barnes has been pursuing this matter for
many years and has made use of the NHS complaints system, up to and including
the health service ombudsman, on a number of occasions. I also understand—this is an
important point in the context of the ombudsman and other issues—that a number
of the concerns that Mrs Barnes raises about her care relate to events
involving non-NHS health care. I should make it clear that what I say relates
to the NHS, and not to health care providers working outside the NHS with whom
Mrs Barnes may have decided to undertake treatment.
It is relevant at this
stage to say a few words about how the ombudsman system works.
·
Kevin Barron
I accept, to some
extent, the Minister’s point about the wider issues, which were not a matter of
referral to the ombudsman. However, a constituent might often go to the private
sector needing to get things done because they are in pain, for example, and
might then see a consultant they could also see under the NHS. Often the staff
are the same people, and there is no great difference between the clinicians
they meet. Does he agree with that?
·
Dr Poulter
The right hon. Gentleman
is absolutely right. It is difficult, in terms of the care pathway, for any
patient to draw these distinctions. However, the NHS complaints procedure
relates to NHS care, and the ombudsman’s role is as a public sector ombudsman.
That goes to the heart of some of the difficulties we are talking about.
If a complainant is
dissatisfied with the outcome of their complaint locally, they have the right
to take it to the health service ombudsman, whose office was set up under the
Health Service Commissioners Act 1993. When complaints are escalated, it is
important that they are investigated independently, free from the political
process, to ensure that there is no question of bias. The health service
ombudsman is completely independent of the Department of Health, the
Government, and the NHS. It is therefore difficult for me to comment on the
ombudsman’s decisions directly.
If a complainant is
dissatisfied with the ombudsman’s decision, they may make use of her own
complaints process. The recourse open to anyone after the ombudsman has made a
final decision is to seek a judicial review. During the entire complaints
process, we assume that patients would take legal advice whenever they think it
necessary. That is in their best interests and, in some cases, it is often
important that patients have advice from a completely independent source.
If, on the basis of the
legal advice received, patients decide to commence legal action against the
NHS, that is, of course, to be expected. The House will understand that I
cannot comment on legal advice given to patients, including Mrs Barnes, as that
is entirely a matter between the patient and her lawyer. Complaints about
lawyers are not a matter for the Department of Health or the NHS, nor for this
House to consider in this context. I am aware that Mrs Barnes has exhausted all
the legal remedies open to her. Her case has been considered by a number of
courts, including the Court of Appeal, and has on each occasion been rejected.
It goes without saying that these matters will have been considered carefully
by the various judges involved, and I should not and will not cast any doubt on
their judgments.
·
Dr Julian Lewis
I was not familiar with
this case until I heard it outlined in such detail, but as I understand it the
pointed issue is not about the merits or otherwise of this
lady’s original arguments with the health service. I think I am right in saying
that the only pointed issue is that the Information Commissioner’s Office
directed that certain data should be removed from the record. They were not and
she complained to the ombudsman, who does not seem to want to say whether it
was right that they were left on her record or whether they ought to have been
removed.
·
Dr Poulter
My hon. Friend will be
aware that patients have open access to their records and can request to see
them, but it is not for a patient forcibly to remove relevant clinical
information from them. I am not sure whether that was the case in these
particular circumstances, but I hope to be able to reassure the right hon.
Member for Rother Valley.
It is worth pointing out
that, during the long line of litigation, in 2007 Mr Justice Simon said,
following a hearing, that
“this is not a case of
professional conspiracies by the medical or legal professions; it is a case
where the balance of the evidence before the Court fell decisively and
conclusively in favour of the defendant”,
meaning the NHS. There
is a long history of legal rulings that make that point clearly. Indeed, I
understand that the NHS Litigation Authority obtained cost orders in its favour
for that case, although it was unable to recover its costs. I reassure the
right hon. Gentleman, however, that I shall look into the issues he has raised
about the ombudsman and the Information Commissioner and write to him about
them.
·
Kevin Barron
I appreciate that. I
know that there is some history to the case of Mrs Barnes, but in my humble
view—I understand that the ombudsman and politicians should not get mixed
up—this specific issue is not about what happened in the courts. It is about
what did or did not happen at the request of the Information Commissioner. My
reading of the situation is that it could have been managed and handled by the
health service ombudsman and compensation could have been paid. In my view, the
ombudsman sat back, possibly because of the history to which the
Minister has just referred, and thought, “It’s got to go to litigation and
that’s it.” When other avenues were closed off, the ombudsman’s office could
have managed the situation, but it seems to me that it backed off, looked at
the whole history of the case of Mrs Barnes and said that it had to go to
litigation. I think that is unfair and that the ombudsman’s office could have
handled things much better and smarter on behalf of my constituent.
·
Dr Poulter
I note what the right hon.
Gentleman says. I have committed to looking further into the issue and to
writing to him, and I hope that will reassure him further about the processes
that have been followed in this case.
As I said at the outset, I am
very sorry to hear that Mrs Barnes is unhappy at the care and treatment she has
received from the NHS. I am also aware that, over the years, she has been seen
and treated in a private capacity on a number of occasions, which, as we have
discussed, complicates the issues, because it can make it difficult to
establish whether the responsibility sits with the NHS—as part of either the
ombudsman’s process or the NHS complaints procedure—or elsewhere. Her case has
also been considered by the courts on a number of occasions and I have alluded
to their conclusions.
I understand that Mrs Barnes
made full use of the various NHS complaints processes, but remains
dissatisfied, which we have discussed in detail today. Accordingly, she has
involved the health ombudsman, but the outcome has not been as she would have
wished.
As I have said—this is worth
repeating—the ombudsman is independent of Ministers, the Department of Health
and the Government. An option open to anyone dissatisfied with the ombudsman’s
actions is judicial review, but it is not to be embarked on lightly and those
considering doing so should ensure that they take legal advice.
I wish Mrs Barnes well and I
appreciate the intentions of the right hon. Gentleman and his strong advocacy
of her case.
Question put and agreed to.
House adjourned.
However, as matters progressed and for some reason, one better known to himself, Mr Barron MP let me down very badly.
More sound recordings to come very soon and you will not believe how
I’ve been stitched-up by the medical profession and others (those in power/public
office and law) who, I allege, were pretending to assist me in these matters.
This true story continues ………………
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