Transcript of Radio Ombudsman #1: How can the NHS and the PHSO get better at learning from mistakes?

This is a transcript of the first episode of our Radio Ombudsman podcast.

Parliamentary and Health Service Ombudsman Rob Behrens talks to photographer, father and patient safety campaigner Scott Morrish about how the NHS can create a just, learning culture and what the Ombudsman needs to do to improve its service.

You can also download a pdf of the transcript (340 KB) or listen to the podcast.

Rob Behrens:    Good morning everyone, this is Rob Behrens, the new Parliamentary and Health Service Ombudsman. And a warm welcome to the very first edition of Radio Ombudsman, our new podcast.

Radio Ombudsman is designed as one important channel to open up dialogue and engagement with our users and stakeholders, and with all those with an interest in the development of the Ombudsman office in this country and around the world.

The point of Radio Ombudsman is to involve as many people as possible in our developing thinking about an institution which this year celebrates its 50th birthday.

We were set up as an independent, impartial service of last resort, and we have spent a long time adjudicating cases that come to us. But in the 21st century, we need to do more. We've got to get better at communicating with complainants, better at learning from bad experiences, and better at using early resolution and mediation so that sometimes we don’t have to use adjudication at all.

On a regular basis I'm going to be inviting people with important and interesting ideas and relevant experience into our studio, either here in London, or in Manchester, to join me in an open, recorded, but unedited conversation.

And to help make the process lively and relevant, we've invited people on Twitter to send in questions for our guests. And straight away, I want to thank one Twitter user for asking if the podcast will broadcast only what she calls, ‘the tiny number of voices it [PHSO] investigates, hand-picked voices’. And the answers to that are that we will be inviting a very wide range of guests, and certainly not confining ourselves to those people who complain to us.

Now, today’s guest is Scott Morrish, photographer, father and patient. Distinguished campaigner now working on patient safety, based on personal experience, but critically and crucially going wider than that in terms of learning. 

Scott, you're extremely welcome, thank you for coming.

Scott Morrish:    Thank you very much.

Rob Behrens:    When did you first become involved with the Parliamentary and Health Service Ombudsman?

Scott Morrish:    That would have been early in 2012, which at that point was maybe 14 or 15 months after Sam, my youngest son at the time, died.

Rob Behrens:    Okay. Why did you become involved with the Ombudsman service?

Scott Morrish:    I guess I didn’t want to. I would rather not have come to the Ombudsman service, but was basically in a position where I could make no progress with the NHS in understanding why Sam had died and why I was unable to get any answers about it, and there was nowhere else to go. So the advice I was given, against almost every instinct in me, was to bring a complaint to the Ombudsman.

Rob Behrens:    Okay. And this began a long and protracted involvement with the Ombudsman service, didn’t it?

Scott Morrish:    Yes, I guess it spans somewhere between four and five years in terms of being an active complainant, and that was split into two very different chunks of time, maybe two-and-a-half years or thereabouts in the first investigation. And then somewhere approaching two years locked in a second investigation. They were both very different processes, and they were both looking at different issues, but they were both focused around Sam’s death and the NHS’s response to it.

Rob Behrens:    And can you describe for us what the investigations were like to experience?

Scott Morrish:    Tough in the sense that the first one was probably the bleakest experience after Sam’s death, and because it dragged on through the best part of two-and-a-half years it was harrowing for a prolonged period of time. The second one was very different, it wasn’t easy, but it was a lot easier. It had a different character, it had a different methodology. We were involved in a very different way and felt much more engaged with that process, and therefore, although still difficult because of the subject matter and the history behind it, it was a far more manageable process.

Rob Behrens:    Why do you think there was this difference? What happened to change it?

Scott Morrish:    I guess the adverse publicity after the first one is probably the reason the second one was different, and it wasn’t a typical PHSO investigation. It wasn’t undertaken by people that worked with a history inside the PHSO, and it drew upon methodologies that I don’t think the PHSO had the capacity to deliver at that time.

Rob Behrens:    So as far as the first investigation was concerned, were you involved in consultation about the drafting of the recommendations?

Scott Morrish:    With the first investigation, I would say we were involved in everything we could be involved in, from the minute it started until the minute it was published. But that was limited by the involvement that we were allowed. So we chose to intervene every time we thought something was either missing or wrong, and we were always given opportunities to give feedback and we always used them. But it was not in our gift to determine what went in; all we could do was say what we thought mattered, and hope that the PHSO did the right thing.

Rob Behrens:    And the second case was different in the way in which it was handled?

Scott Morrish:    The second case was very different, partly benefiting from everything that had been learnt through the first one, and partly because I think there was a real desire not to replicate the mistakes of the first one. In a sense you can think of the second one as being completion of the first investigation; my objections with the first were not that it was fundamentally wrong, they were that it was knowingly incomplete. My objectives in pursuing a second investigation were to complete something that, if left unfinished, was going to leave gaping holes in understanding of what had happened after Sam died.

Rob Behrens:    ‘Knowingly incomplete’ is a powerful expression. I've seen a lot of comments on Twitter since I took up post about the lack of impact of our investigations.

Scott Morrish:    Yes.

Rob Behrens:    What do you have to say about that?

Scott Morrish:    I relate to those comments and empathise with the people who are feeling that it’s impossible to alter or impact upon what the Ombudsman is doing, because that’s exactly how I spent a big chunk of certainly the first two-and-a-half years, and some of the time after that. I think the Ombudsman has allowed itself to become a hostage of its own processes. And I think that’s where a huge number of the problems that people like us experience originate from. But unfortunately when we try and deal with them, the attempt to answer our questions tends to involve going back to ‘the process’, so it becomes a vicious circle, one that is very hard to break.

Rob Behrens:    I've read evidence that you’ve given to the Public Administration and Constitutional Affairs Committee where you’ve talked about this, and you’ve talked about the importance of transparency in the investigation as a way of making sure that it doesn’t become a hostage of its own processes. Could you explain a little bit about what you mean by that?

Scott Morrish:    If we take a step back and look at how the processes may have originated, I think perhaps when the Ombudsman service was set up, it was set up in an age where deference was perhaps the norm towards authority, and diffidence may also have played a role.

I think both of those things are things of the past. Trust has eroded so heavily now in many aspects of government and authority that it is not enough now just to assure people that you're trustworthy. You actually have to demonstrate that you're trustworthy; and actually you can’t do that by resorting to a process that is designed behind closed doors, that’s monitored behind closed doors, that is basically beyond any form of scrutiny.

Obviously, when you’ve watched your son die, and you know there are questions that are unanswered, it’s nigh-on impossible for you – or any anybody else – to convince me that the questions that I think need answering are irrelevant. ‘Process’ can’t address those things.

Rob Behrens:    So would you question the principle of impartiality of the Ombudsman?

Scott Morrish:    No, impartiality is vital. If you're in danger of sacrificing impartiality, you're doing the wrong thing. Impartiality is absolutely vital, because you shouldn’t be on my side, but neither should you be on the side of the person I may have complained about, or the process I may have complained about. What you should be on the side of is unearthing all of the evidence, and that is always possible in an impartial way.

Rob Behrens:    Do you think that a greater transparency compromises the confidentiality of the process?

Scott Morrish:    I would argue that the process should not be confidential. I think sometimes it’s easy to get tangled up with these sorts of conversations. I think actually what is necessary is transparency, unless there is an absolutely compelling reason to be anything but transparent. So the default should be transparency; in the past, the default has been the complete opposite of that.

Rob Behrens:    I agree with you that transparency is a key ingredient of trust, and that deference and diffidence are values that have gone and we need to get rid of. I don’t instantly agree with the view that confidentiality should disappear, because there’s always more than one side to a particular issue in a complaint.

Scott Morrish:    I'm specifically not saying that confidentiality should be a thing of the past. I'm saying that transparency should be the default, and confidentiality has a role to play – but only when it is necessary, not by habit. And that would change the terms that complainants and complainees can then engage with the PHSO. 

The assumption should be that everything will be shared with everybody, because we’re trying to resolve whatever dispute there is, and hopefully learn from it, and avoid it happening again. When there are issues that are genuinely in need of confidentiality, then of course that should be offered, and I would argue that’s in everybody’s best interest, including the person making the complaint. It’s not binary, it’s not either/or.

You can have a default that leans heavily towards transparency; you can offer confidentiality when it’s necessary, and I would argue any trusting relationship has to have the capacity for both of those things.

Rob Behrens:    Now, just looking back and summarising, what are the general criticisms you would make of the case handling in the two cases? Because I've heard you talk about your respect for the case handlers, but your sense that they were ill-equipped to deal with the situations they were asked to look at.

Scott Morrish:    I have respect for all people that are asked to do a job, but I don’t necessarily respect the job they're asked to do. And in this case the complaints handlers were always courteous, they were always professional, they were never rude. I think they sometimes were exasperated with me, but then so was my wife.

The thing that increasingly seemed to be apparent to me was that I think sometimes they could have done a lot more, and perhaps would have done a lot more, if the process hadn’t stopped them from doing so. And of course from the outside it’s hard to know quite how the process was doing that.

But there were so many decisions that were made not to investigate; and not to look at certain things; not to interview people; not to pursue certain lines of inquiry, that really did make no sense, that I was left feeling that perhaps they were – in a very perverse way – just as powerless as I was.

Rob Behrens:    Do you think it would have helped if there had been an extensive engagement with you on a personal basis at the beginning of the process?

Scott Morrish:    I think the more complex the situation and the longer the period of time it spans, the greater the need for direct contact at an early stage, simply because it’s the only real way of feeling your way through the situation that you're in, and sense-checking every part of your understanding of it. 

If I was in their shoes, I would want to meet simply because I would be keen to know that I had the best understanding of it. I think to default to letters and emails and the occasional telephone call just is tying your hands behind your back and throwing away a huge opportunity to understand the situation that you're in.

Rob Behrens:    So were you invited to come in and talk to the case handlers?

Scott Morrish:    No, I had to push for them to come to me. At the time I wasn’t in a fit state to come to London, to be honest, or Manchester. So I asked for the interviews, and we got halfway through everything that had happened to Sam in the first interview, then the time had run out and it was time to get back on a train. We had to push for a second meeting to be able to complete that process.

But the default was very much to handle it by email, to handle it by letter, to make phone calls when necessary. The expectation wasn’t to sit down with us and understand.

Rob Behrens:    After an experience like the loss of your son, as you said, the last thing you would want to do would be to make a complaint. And yet, the process of the Ombudsman seems to put a premium on investigating in time.

So complainants, when they're at their lowest, are often asked to go through hoops which people not in that position would find difficult anyway. But if it’s not looked at, then time moves on, and people’s memories and documents fade away. So there’s a dilemma there, isn’t there?

Scott Morrish:    Yes, in terms of not wanting to complain, I felt like I was betraying the people who had tried to help Sam by agreeing to become a complainant. It was the opposite of everything I thought should be happening. It was quite a painful thing to do. I had gone to see my MP, and I felt like I was betraying all the people that tried to help Sam, then, too.

I never wanted to go in and say: ‘Look, the NHS is failing to do the right thing, and it’s apparently indifferent to this thing that’s happened to our family’. But actually the NHS left me with no choices, and I never wanted to go to the law, I never wanted to go to the press, and the only other option that anybody presented to me was the Ombudsman.

But the hoops that you had to jump through, the knowledge that the bar you had to clear is so high, is incredibly intimidating at the same time that you just might be wondering if you're going to wake up the next day. It’s an inhumane way to treat a family that’s gone through those things.

Rob Behrens:    So this took many years of your life, and your family’s life. Were you ever tempted to give up?

Scott Morrish:    Giving up isn’t something that’s in my nature, but that in itself is an interesting point, because my wife didn’t want me to complain, either with the first or the second time. If somebody could have just sat down and said sorry, she would have been able to move on. And I know she would have still campaigned around sepsis, but she did not feel that we should be dealing with the inadequacies of the complaint system, or the inability to investigate. In her view, that was very much a case of other people’s responsibilities.

Although in the end I couldn’t have walked away or given up, because I knew that if I lived to be 50 or 60, and I read a headline that read anything like our story, I would know that I had colluded to some extent by not tackling it, and I wasn’t ever going to feel comfortable doing that.

Rob Behrens:    Another Twitter user has sent in a question to you which says: ‘Scott, the Ombudsman has been instrumental in publishing the truth about the way the NHS failed your family. You are part of a small minority to have achieved this. A huge number of dispossessed relatives are still pursuing the truth. What should be done to address this epidemic of suffering?’

Scott Morrish:    Well I guess my first thought is shame on the system. Shame on the system for allowing this to be the case. And by that I don’t just mean shame on the PHSO, I mean the whole system, because the only reason I needed to come to the PHSO was because the NHS had failed itself. 

There is a deep reservoir of hurt out there, with people having experiences like ours – and in some cases experiences like ours that go back over two or three decades – and no resolution, no recognition, an awful lot of animosity. Firstly I think there’s a real need to recognise that reality for all of those people, and secondly I think once it has been recognised then there should be an attempt to address it.

And I think there are two different elements to that from the Ombudsman service’s perspective: one being that learning should come from whatever it is that’s lead to this situation. But the second thing is I think the system as a whole needs to deal with historic cases.

I don’t think it’s necessarily a thing the Ombudsman can do on its own. But somebody in the Department of Health needs to figure out a route forward for all of the people that have become trapped in the histories of their cases.

Rob Behrens:    Can we move on to use your experience to look at the learning and policy development that the Ombudsman needs to take on board in order to be more professional, and better and trusted at doing its job? And there have been a whole host of points and questions made on Twitter relating to this, for which I'm grateful.

One Twitter user makes the point that there’s so much [information] available already, that he wonders why we’re asking for more information about how we could do things better, because he says it’s already out there. On the other hand, another Twitter user tweets to say: ‘When and how can a proper complaint system be put in place? The vulnerable who are damaged by the NHS have nowhere to turn.’ A further Twitter user, in the same vein, says ‘How will the PHSO address the wilful blindness, ignorance, portrayed in complaints and staff involved?’ 

So there are a lot of people who agree with you that how PHSO goes about looking at complaints is not satisfactory.

Scott Morrish:    There are a lot of different threads to it, because you almost need to go all the way back to the beginning and ask: ‘What is the purpose of the Ombudsman? What is the Ombudsman trying to achieve?’ And I think perhaps historically it was set up specifically with the goal of judging whether a complaint was valid or not, either finding in its favour or finding against it.

But we’re at a point in time now where what’s needed is something much more than that, much more complex than that as well. People like me – well, I speak purely in terms of my own story – I didn’t care whether you upheld my complaint or not, actually, because I knew where the injustices were. And even more than that I knew where the gaps were in anybody’s knowledge. They were writ large in the form of all the questions nobody would answer.

So really what I think is needed now is a mechanism for learning, and a mechanism for investigating, and certainly in my case the only reason for complaining was because those things did not exist. So if the purpose of a complaints process is to further learning, and therefore to drive improvement, I would suggest you need very different processes to the ones that were put in place in order to form a judgement.

Trust is one element that’s lacking but necessary. Competence is another, and that has to be tied up with the processes that you put in place. At the moment I think processes have been put before people, and the consequences are injustice.

And I think the processes have also become detached from the purpose. That’s fundamental in my mind, because if the goal is learning, you need processes that are capable of getting there, and I just don’t think the Ombudsman has had them.

Rob Behrens:    Well, I agree with a lot of what you say. Clearly the key aim of the Ombudsman service should be resolution of disputes that can’t be resolved in a trust or a hospital or a body in jurisdiction. That is one element of it. That is different and supplementary to adjudication, which involves a judgement about whether or not there’s merit in one person’s case.

So I accept that resolution is different from adjudication, but you need to have resolution, because that’s what some people want. In your case that wasn’t necessarily what you wanted – you wanted learning from the system to make sure that the gaps could be filled, that professionalism could be guaranteed in the service delivery.

Hasn’t the Ombudsman service moved some way in the last five or six years by introducing the idea of an ‘Insight’ report, which builds on cases and looks at lessons to be learned in policy development in ways which enable policymakers to address the very issues that you're talking about?

Scott Morrish:    Yes, I think ‘Insight’ is key. And ‘Insight’ reports, if evidenced, are incredibly valuable tools. I suppose the point I was trying to make just now was that in my case, whether the judgement upheld my complaint or not wasn’t of primary interest to me.

Resolution, actually, as distinct from judgement was. But I think there’s been a tendency if you look through what's been happening in select committees and various forms of communication from the Ombudsman, there has been this idea that more complaints will lead to more learning and therefore a better service.

And actually, if the complaints process is primarily – above all other things – interested in the robustness of its adjudication, all those other things that it is talking about fall by the wayside. And the processes, if they are purely focused on a robust adjudication, can leave all kinds of holes in knowledge and understanding, which are where you get these comments regarding wilful blindness from.

If you say: ‘Actually, I don’t need to look any further, because we've already upheld your complaint’, then you're accepting ignorance in a certain area that may be of fundamental value. You can’t know unless you look.

Rob Behrens:    Well, I take that point, but would you take this point, that the Ombudsman is accountable to the rule of law? And while people say the Ombudsman is not accountable, in fact, people who regard the decision as deficient in some way can go to a court and say: ‘This is an unsatisfactory investigation.’ So we can’t not seek to have rigorous adjudication.

Scott Morrish:    You should seek rigorous adjudication, but you shouldn’t settle purely for rigorous adjudication. I was told time and time again through my first investigation that we had reached a robust adjudication, and ‘therefore we will not go further’, which basically meant there was no point in the second investigation.

The second investigation probably revealed more useful information than the first, but it was deemed unnecessary at the point that the first one was signed off by the Ombudsman. There was a massive hole in the knowledge that was gathered through that first investigation, and it’s there, a lot of it is there in the second report. So by definition, the robust adjudication can leave holes in knowledge. 

The reason I mention purpose… you’ve got people, and process, and purpose. If the purpose of the 
Ombudsman is purely to reach a robust adjudication, that takes you down one process route. If the purpose is also to hold the systems accountable for improvement, beyond simply arriving at a judgement as to whether a complaint is valid or invalid, you have to go further, and that needs a different methodology.

That, to some extent, is what was different between the first and the second investigations, that I saw.

Rob Behrens:    You say that the Ombudsman must be independent, but there should be an independent review of what the Ombudsman does, which is not a judicial one.

Scott Morrish:    Yes, picking up on the idea of accountability in the form of the judiciary, I can’t think of any greater injustice that could be heaped upon a family than to say, after you’ve gone through everything with a service like the Ombudsman: ‘Actually, if you're not happy, now turn to law.’ I will never do that. I would never have done that.

And I don’t think it’s ‘just’ for a family that’s gone through those sorts of experiences to have to take those sorts of steps in order to make an organisation accountable. I think it’s the wrong mechanism. I actually think it’s deeply damaging to the reputation of the Ombudsman, too.

Now, it’s not the Ombudsman’s fault, if that’s the structures that have been written into primary legislation, but it doesn’t mean it’s right for the future. I think it may well be an area that needs judging. It should be right that you can turn to law if you need to, but I think you need something else as well. And that ‘something else’ has to be focused perhaps less around structures like law, and more around ideas like restoration.

So it’s a question of trying to resolve differences; trying to reach understandings; trying to share understandings; trying to have a contextual ‘shared’ consciousness of the whole system, so that if differences remain we can understand what they are and maybe even accept and respect them, even though those differences may remain. That’s not possible in a judicial setting.

Rob Behrens:    A couple of points that came out of that: first of all, what you seem to be saying is something along the lines that you need to have an element of mediation in dispute resolution in order to properly address the differences between the two sides.

Scott Morrish:    Yes, mediation, a trusted broker that can help people with legitimate different ideas and opinions to sit down and find a way forward, if that’s possible. It may not always be possible, but I think we could do much better than we do at the moment.

Rob Behrens:    We can agree on that. But I'm not sure we can agree on the issue of non-judicial independence, independent review. A number of people on Twitter have raised the question, for example: ‘When will PHSO get an expert independent review of a number of key failed cases?’ And some people on Twitter point to the fact that you were offered an element of independent review.

Scott Morrish:    Well, our second investigation wasn’t an independent investigation. It was conducted by the PHSO on the PHSO’s terms. It wasn’t independent, it was very much a PHSO investigation. It was just deploying a methodology and a team that were not ‘typically’ PHSO.

But in terms of external review, I suppose why I was trying to suggest a while back that you might need something driven by the Department of Health rather than the PHSO itself, is because these historic cases are now very complicated, I don’t know that the PHSO could cope with them on its own.

But the ‘state’ has created these injustices for a number of families. And the ‘state’ is the level at which it needs to be recognised, and actually, they are the only people that can provide redress where that’s possible. So there needs to be a system-wide approach to trying to resolve as many historic cases as can be, or at least to recognise and then learn from them.

Rob Behrens:    I was a UK civil servant who worked in South Africa during the transition from apartheid, and I watched the Truth and Reconciliation Commission. Are you talking about something like that?

Scott Morrish:    I don’t pretend to have an exact model in mind. I guess I feel as an ordinary patient it’s okay to recognise a need or a deficiency in the system, and to suggest that we need to be creative and imaginative in looking for a way to solve that problem.

And it is an example that springs to mind, the Truth and Reconciliation approach, whereby you don’t necessarily tie it to punishment, you primarily set out to allow people to air their injustices as they’ve experienced them and to seek learning and resolution where possible, with a view primarily to being then free to move forward.

And that’s what this backlog of historic cases is preventing. It’s preventing the individuals from being able to move forward in their lives, but it’s therefore preventing the PHSO and other parts of the NHS from moving forward too, because this legacy is going to anchor them to the past.

Rob Behrens:    That’s one thing, but a related issue I'm more sceptical about. You talk about the Ombudsman marking his or her own homework, and a number of people are asking not for review of historic cases but of contemporary cases if they don’t get the outcome that they think they deserve.

Now, I'm interested in your view on this, because my view is that with no power of coercion, with no ability to be able to impose a recommendation on a body in jurisdiction, we are the body of last resort for a complainant, and that it is inappropriate to offer anything else after that fact, providing that we have reached an evidence-based decision. You don’t agree with that, do you?

Scott Morrish:    If I've understood that correctly, I think the point my understanding has reached is that, if the process has allowed an investigation to follow a particular path, and it has reached a point in which it is convinced it has a robust adjudication, and it can defend it legally, then it may think its job is finished.

But during the course of that process, it may have completely missed some factors which are fundamental from the complainant’s perspective, and that’s where we come back to the idea of ‘the process’, and those early meetings, in order to sense-check what the purpose of the complaint is.

I think there are many examples whereby the process itself has revealed information that, if it had been known at the outset, could have perhaps framed the complaint differently and that might have lead the Ombudsman down a different route.

Now, at the moment, the Ombudsman’s processes are so rigid and so inflexible that it’s very hard for them to go back. It’s not an iterative process, it is very much a linear process, or at least that’s how it seems: ‘We’re going to tick this box, tick this box, tick this box, and now we’ve got a robust, defensible set of findings, so we’re going to leave it there.’ That isn’t how families live.

Rob Behrens:    Well, we have a new Service Charter now, we have a new operating model, and I am determined to make sure we are more responsive to the needs of complainants in the course of looking at a case, providing that we don’t lose our impartiality, and providing that we don’t lose our independence. 

I disagree with the view that there should be a ‘Super Ombudsman’ to mark the homework of the Ombudsman. I think that is bureaucratic, it brings us into disrepute, it makes us into a second-class Ombudsman service. That’s not what people should want. What they should want is an exemplary process in the first place.

Scott Morrish:    Having spent quite a few years involved with an Ombudsman’s process, I wouldn’t want to then have to go to another Ombudsman. The last thing I think the world needs is another one. But actually, the currency you're in short supply of is trust.

What you're lacking is a sense that you're trustworthy, not you personally, but the Ombudsman service as whole. And this comes back to the fact that we’re in an age that’s post-deference and post-diffidence, and therefore what we need to do is think: ‘How do we create an Ombudsman service for the future in which trust is easy, in which trustworthiness can be demonstrated?’

And my suggestion would be, far from the idea of a ‘Super Ombudsman’, we actually put a mechanism in place whereby if you reach an impasse as a complainant or as an Ombudsman, you can basically refer that case in full to a third party who can look at it with real objectivity because they have no involvement in it, and no interest in its outcome other than making sure it’s good. And then its analysis can be fed back both to the complainants and also the Ombudsman.

Now, if the Ombudsman is as good as it’s hoping to be, it should be able to see this as belts-and-braces that enshrines its independence and its integrity. And actually it should be big enough and humble enough to accept any criticisms that come back, as long as it is then tasked with correcting any deficiencies. But equally, if what comes back is a vote of confidence in its findings, then that should also then give reassurance to the families involved.

Rob Behrens:    Let’s see where we agree on this. Trust is an absolutely critical issue for all public bodies, particularly the Ombudsman. And trust involves at least three key elements: being honest and being seen to be honest, being competent, and being trustworthy. None of those things are achievable without the Ombudsman service being transparent, so I sign up to all those things.

And one of the ways in which we need to be more competent is through what is called in the trade ‘structural impartiality’, that’s what the Canadians call it. That is, that you use people who have the emotional intelligence to be able to understand and work with people who are stressed or bereaved in some way, and we haven’t been terribly good at that. So I share that.

I also share the view that mediation can be a tool as part of the resolution process, in a way in which this particular Ombudsman service hasn’t used it very much.

Where I disagree with you is whether or not this should be outside the institution or not. But perhaps that’s something we can continue to debate.

Scott Morrish:    If we were in a different place in terms of public confidence, I might disagree with myself. But we are where we are and trust is at rock-bottom in some people’s minds. So my question is simply, how do you intend to rebuild trust with those that have reason to doubt?

And any form of marking your own homework is going to leave scope for cynicism. So I think if you're confident that what you're doing is right, then this other form of scrutiny that I'm suggesting will bolster your drive forward, but it will actually help retain focus within the Ombudsman service on what really matters.

You're talking about trust in terms of components: it’s competence, it’s honesty, it’s integrity, in my mind. And transparency is one of the factors, one of the means by which you can deliver an increase in trust. It’s not an answer in itself.

But I don’t mean transparency about process. I mean transparency about what you find, and how you arrive at your recommendations, and why you don’t pursue some lines of inquiry, and why you do tackle others.

Rob Behrens:    Okay. Can we move on to talk about an absolutely fundamental issue, which is the culture in the health service? And there is a perception of a defensive culture in the health service which makes it difficult to get resolution of issues at the first tier, and which means that investigations, or mistakes before investigations are not acknowledged.

Now, there’s been some attempt to address this through legislation and duty of candour. But we've got a long way to go, all of us, to be sure that there is a culture of learning, or what you call a ‘just culture’ in the health service. What are your thoughts about that?

Scott Morrish:    It’s incredibly complicated, and because of the complexity I think it puts a lot of people off getting on with fixing this. But it also sometimes leads people down partial routes to success. So the duty of candour, for example, may or may not help. I think it probably helps in some cases and it may hinder in others, but it’s not clear-cut. 

Learning culture is something I think, before Sam died, I had simply assumed that healthcare was rooted in scientific thinking. I had assumed therefore that if a problem arose, it would try and solve the problem, and that by definition it would want to learn.

That’s partly why when I asked simple questions – layman’s questions – about what I had just seen happen in front of my eyes, I was so shocked by the reticence, the reluctance, the defensiveness. In a sense that’s why I'm here now still, because no matter what reports have been written, I know at grassroots level most of those issues remain unaltered, at grassroots level, for most people.

And I guess my hope is that by untangling what culture means and what shapes it, we can actually bring about change faster than most people would dare to think is possible. The ‘just culture’, I think, is the key thing. If people feel afraid to be asked questions, let alone answer them honestly, it tells you that they don’t feel free to admit their mistakes, and that means that their team, the people around them, can’t learn. And whilst that’s the case, we’re just going to keep on having stories like this.

Rob Behrens:    So I've read that you’ve used the phrase that ‘culture eats strategy’, and this is about leadership at all levels in the NHS. So how do we empower clinicians and administrators in the health service and other bodies to become more self-critical at the point in which they're under huge pressure, and they're having to exercise their professional judgements all the time?

Scott Morrish:    We stop punishing them for being human. We stop punishing them for making mistakes. We stop creating circumstances in which mistakes end up being aired in NMC hearings and splashed across the fronts of newspapers. We create an environment where people feel psychologically safe to say, ‘I think I’ve made a mistake.’

And then to explain it and have it scrutinised in the interest of improving and growing, and that requires much more than just leadership. Leadership on its own is one key element, but you need good governance, you need accountability, and at the moment all three areas are lacking in too many places.

You need everybody to be engaged, but you need everybody to feel empowered. And right now I think the complaints process is the perfect example of a system and a process that disempowers, it disengages, it drives us apart, it takes us in the wrong direction in most cases.

I'm not suggesting there shouldn’t be complaints processes, but it should not be the default. It’s a very unhealthy default, and it speaks volumes about the culture that we have right now.

Rob Behrens:    So you’ve been working with regulators in the health service to look at some of the issues outside of complaints?

Scott Morrish:    That sounds far too serious. I'm not working with anybody. But I am certainly trying to engage with those people I think are shaping the service that we have. And that means soon I hope to be speaking with some people in the GMC, and I will strive to speak with others, too. But basically, I've come to the conclusion at the moment that the regulation we have is a big part of the problem. It’s too slow, it’s too legalistic, its focus isn’t learning, it’s punitive far more often than it’s restorative. 

I think there are such a wide spectrum of things that go wrong and reasons that people suffer, but we seem to have a one-size-fits-all response which is basically a complaints form, and actually what we need is a whole suite of responses.

It would involve mediation in some cases, restorative approaches where possible. Punishment should just be one, and it should be the rare example. But at the moment it’s almost a form of brinkmanship, as if: ‘Here’s a complaints form, we’ll either uphold it and somebody might get punished, or nothing is going to happen.’ The status quo is pretty much nothing happening.

Rob Behrens:    And will the Healthcare Safety Investigation Branch contribute to this diversity of approaches? Because it’s not a complaints-handling body, is it?

Scott Morrish:    No, it’s quite deliberately not a complaints-handling process. It should never be confused with that in any shape or form. It will definitely help, but it’s not the solution to all of the problems. What it will do is, I hope, reveal the system-wide nature of problems in whichever areas it chooses to investigate. That’s another capability that the system just has not had in the past, and it’s high-time and a good thing that it’s happening now.

But it’s part of a long-term mechanism for keeping the system in a space where it learns and can scrutinise itself without any of those elements of fear and punishment.

Rob Behrens:    There are a lot of regulators in the health service, and one of the key issues is that they are all joined up and understand what each other does, and work constructively together. Is that beginning to happen?

Scott Morrish:    On the way up to this recording, I was thinking about what I think the biggest problem in the whole system is, and actually I think it’s silos. And I think each regulator is a silo of its own, and it left me wondering if… We have a NHS, a National Health Service in name, but in practice we have a Siloed Health Service, and I actually think that’s the hub of almost every problem I've encountered: it’s silos within silos.

The regulators are hampered by that on one level. But within a hospital, within the hospital where Sam died, you’ve got many silos, different departments, different specialities, different hierarchical silos and different disciplinary silos.

I think each of those silos is the reason that communication doesn’t just morph across the whole system. It’s going to take a bit longer to understand that properly, but I think when the regulation mirrors the dysfunctionality of the rest of the system, we’re in a bad place. And actually, that’s where I think we are right now.

Rob Behrens:    Well, Scott, you’ve been balanced, frank, bleak, rooted in experience, and we’re very grateful for that. As a way of finishing, are there any reasons to be hopeful that there’s a way forward for the Ombudsman and changing the culture in the health service?

Scott Morrish:    Yes. I haven’t meant to be bleak, actually. But there are always reasons to be hopeful, it’s the reason for remaining engaged. And the key thing I guess I'm looking for at the moment, when I know I can sit back and think I've done what I needed to do, is to start seeing evidence that the situation that we have experienced is properly understood; and the problems that we have encountered are properly articulated; and then there are at least theories about how we might solve them.

So I'm looking for solutions to these problems, and I'm looking for like-minded people that want to solve these problems.

I think the measure for me is when patients and staff are talked about in the same breath, and their interests are aligned, and they're not pitted one-against-the-other, as is often the case in something like a complaints process.

So we’re looking for a culture where the leadership displays humility, where it has empathy for everybody under its sphere of influence. We’re looking for systems that are resilient, and adaptable, and supportive, and basically patients and staff feeling empowered – empowered to be honest about what has happened to them.

I think when we start moving in that direction and start seeing that actually happening, then trust will emerge, it will be the flower on this particular plant. It might all sound a bit vague and a bit dreamy, but it’s my reason for being hopeful, believing that that is possible.

Rob Behrens:    Scott Morrish, thank you very much, indeed.

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