What we have to say Opinion and analysis PHSO’s review of its use of clinical advice IntroductionPHSO has undertaken a substantial exercise to review how it uses clinical advice in its case handling. It published the results in March, across three documents: an independent report from Sir Liam Donaldson, a former Chief Medical Officer; a report of the Review Steering Group, chaired by PHSO non-executive director Sir Alex Allan, which responded to and built on the Donaldson report; and PHSO’s response to the review, which sets out a summary of what action it will take next. We have gone through all three documents and compared the recommendations in the Donaldson report to those in the Allan report, and in turn to PHSO’s plans to take action. PHSO has confirmed to the Patients Association in writing that it is accepting and implementing all recommendations in the Allan report, except where its response document says that they are either not being taken forward, or being piloted and evaluated. Accordingly, while this post summarises the major changes, if you want to know in detail what changes PHSO has committed to, the Allan report is the key document. It should be read in conjunction with PHSO’s response, but that is a summary document, and does not address every point of detail in the Allan report. The summary refers to three key people involved in PHSO case handling, so it’s worth setting out who they are. Firstly, the caseworker: this is the PHSO staff member who investigates the complaint, reaches conclusions and writes the report. The clinical adviser is a clinician who is asked by the caseworker to provide expert professional advice on the technical aspects of a case; they may be an in-house member of PHSO’s staff, or an external professional engaged for a specific case. And the complainant is, obviously, the person who makes the complaint – while we generally refer to ‘patient’, we use the term ‘complainant’ at times below for clarity when summarising PHSO’s proposals. Contact and communication with complainantsWhen we made our submission to the review, we asked patients for their experiences. Several clear themes emerged from what patients told us about how PHSO’s use of clinical advice had not worked for them. Often this involved investigations going wrong because of mistakes early on by PHSO, such as engaging an adviser who was not clearly qualified to advise on the issue at hand, or defining the request for advice in a way that fundamentally misunderstood what had happened and what the patient was unhappy about. Often patients did not find out about these errors until much later. Another recurring theme was that caseworkers often attached more weight to the evidence of the NHS body and clinicians in the case than to the complainant’s, and briefed the clinical adviser accordingly. We argued that patients must have sight of what is happening during the course of PHSO’s casework, and the opportunity to raise concerns if it appears that the investigation is not addressing their complaint. The Donaldson report recommended that when a request for advice is made by PHSO, complainants should have the opportunity to comment on that request – this would introduce a very helpful opportunity to stop cases going wrong in their early stages, if for instance the caseworker has framed the request in a way that misunderstands the original complaint. The Allan report stops short of recommending this: it advises that there should be much better communication with complainants throughout the process, in real-time as far as possible, including notifying them that advice has been requested and giving them an opportunity to comment on the advice after it has been provided, and before the caseworker gives their initial view. But this does not include an opportunity to comment on the initial request. The Allan report and PHSO response document devote considerable attention to the question of whether clinical advisers should be named – perhaps understandably, as internally within PHSO this has clearly proved a controversial issue, to the extent that some experienced advisers have indicated they will no longer provide clinical advice if such a change is introduced. Both Donaldson and Allan explored the issue in some depth, but refrained from making a final recommendation, although both recommended that the adviser’s qualifications and experience should be shared with complainants, which will itself address a major concern that patients told us about. In fact, PHSO has decided to develop a pilot scheme for naming clinicians – this is a major step forward for transparency, and very welcome. Another theme in patients’ feedback to us was that they felt their testimony was not accorded the same weight as that of clinicians and professionals. PHSO has committed to delivering new guidance for caseworkers, and updating its training, on assessing the balance of evidence. This is promising, though naturally we await the delivery of these changes before reaching a judgement. PHSO has committed to making the new guidance publicly available, which offers some helpful transparency. The Donaldson and Allan reports both addressed another common issue: the NHS organisation that is the subject of the complaint will often provide a large volume of information to PHSO during their handling of the case. Both reports recommended that complainants should have sight of this information, and also that if the relevant clinician is able to speak to the clinical adviser directly, the complainant should also be given this opportunity. PHSO’s response does not give details of how it will implement these recommendations, but we infer this will be done as part of the new processes to give complainants better real-time information about how the case is progressing. Both reports recommended that PHSO should improve the language it uses when communicating its decisions to complainants. PHSO has committed to doing this, which will take place in the context of its plans to publish the bulk of its casework online. Integration of clinical advisers into caseworkThe Donaldson report recommend that PHSO’s caseworkers and clinical advisers should work together at the start of a case to develop an understanding of care ‘in the round’, so that they arrive at a full understanding of the complaint. The Allan report notes that this could add cost and delay, particularly to more straightforward cases, but recommends that it be included in pilots of new approaches within PHSO. Also covered by these pilots will be the recommendation that the adviser should be ‘represented’ at a multidisciplinary meeting convened by the caseworker, after the adviser’s report has been received. Under a recommendation from the Allan report, following Donaldson’s lead, clinical advisers will be given the chance not only to see how their advice has been used, but also to ensure that it has been properly recorded – so, in principle, if a caseworker has used the advice to draw a conclusion that it does not actually support, the adviser will be able to require that it is corrected. Surveys will be introduced to allow clinical advisers to comment on the quality of requests they receive from caseworkers, and for caseworkers to give feedback on the advice they receive. This meets a recommendation from Donaldson, repeated by Allan. PHSO’s approachThe Donaldson report in particular devotes significant attention to the constraints placed on PHSO by legislation, and in particular the obligation on it to investigate the merits of action taken by a medical practitioner in the exercise of his or her clinical judgement: Donaldson argues this focus exclusively on the judgement of individuals is an anachronistic approach, and prevents PHSO from investigating the causes of poor care in a holistic way that takes systemic factors into account. This is crucial, as errors often arise not merely from mistakes by individual clinicians or professionals, but from failures in care systems that place pressure on individuals, or in some other way distort their judgement or actions. Understanding these failures is essential to the NHS learning from its mistakes and improving patient safety. PHSO is already arguing for a revision of its legislative basis, but in its response to this exercise addresses the wider issues around the nature of its investigative powers and approach, it focuses on what is possible within its current powers. It commits to identify ‘additional approaches’ to investigation that it might incorporate within its work, and set out any such plans in its next corporate strategy. Currently PHSO is permitted to consider issues that fall outside the direct scope of a complaint, but not if the complainant says they do not want them investigated. Donaldson and Allan both recommend that PHSO should make more use of this ability, to identify learning for the NHS more effectively and ensure that root causes of problems are identified. To this end, PHSO has committed to producing new guidance to clinical advisers about how to raise issues that are outside the scope of the caseworker’s original request for advice. PHSO has declined to take up some specific organisational recommendations from the Donaldson and Allan reports: these include the creation of a new system of data and information, and the appointment of a new Medical Director and a new Director for Patients and Families. Regarding the new director roles, PHSO has recently reduced its senior management roles in order to save costs, and therefore argues it should not be creating new posts. It does, however, commit to some of the intended aims of the new roles, such as specifying who will be accountable for delivering the changes arising from this review, and gaining insight from both complainants and clinicians by exploring options for a new ‘expert advisory panel’. We expect to see the outline of these arrangements making clear how quality assurance of the use of clinical advice, and of casework more broadly, will operate. It will also be adopting one further specific recommendation, which was to review its risk profiling of cases, to ensure it captures the ‘severity of potential harm’ accurately. We will continue to monitor PHSO’s progress in improving the service it offers patients, including its delivery of these changes to how it uses clinical advice.