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Selected Investigations Completed April - September 1999 > Part II, Case no. E.1925/98-99
Complaint against: Chase Farm Hospitals NHS Trust (now Barnet and Chase Farm Hospitals NHS Trust)
Complaint as put by Mr Y
1. The account of the complaint provided by Mr Y was that in March 1998 he complained to the Trust, using the headed notepaper of his employers (a national newspaper), about the care and treatment provided to his late father. Following an exchange of correspondence he remained dissatisfied and requested an independent review (IR) of his complaint. His request was passed to the Trust's then chairman who was acting as convener. The chairman contacted the editor of the newspaper and complained about Mr Y's use of their notepaper. The chairman retired in October 1998 and, in April 1999, the new Trust took over the functions of the Trust, and another Trust.
2. The matter investigated was that the chairman acted inappropriately in contacting the editor about Mr Y's complaint.
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Investigation
3. The statement of complaint for the investigation was issued on 12 February 1999. Comments and documents were obtained from the Trust and the chairman. The Ombudsman's staff also took oral evidence from Mr Y, his editor and the chairman.
National and local guidance
4. Paragraph 3.3 of 'Complaints, Listening ... Acting ... Improving', the NHS Executive's guidance on the complaints procedure, states:
' .... Care must be taken at all times throughout the complaints procedure to ensure that any information disclosed .... is confined to that which is relevant to the investigation of the complaint and only disclosed to those people who have a demonstrable need to know it for the purpose of investigating the complaint.'
5. The Trust's complaints policy, at the time of Mr Y's complaint, made no reference to complainants' or patients' rights to confidentiality.
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6. That policy was revised in September 1998 (ie after Mr Y's complaint) to include:
'7. Confidentiality
'7.1 Investigation of a complaint does not remove the need to respect a patient's confidentiality
'....
'7.4 No information relating to complaints may be disclosed to another person, organisation, or other members of staff. ....'
At the time the Ombudsman's investigation was being completed this policy was being used by the new Trust.
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Documentary evidence
7. Mr Y's original letter of complaint to the Trust (on the newspaper's headed notepaper, but including his home address) dated 3 March 1998 included:
'I take a keen interest in medical matters as the science editor of [a national newspaper] and believe that, in the case of my father's treatment, the service offered by Chase Farm Hospital fell short of reasonable expectations.
' ....
' .... Before I take this matter any further, I would, of course, like to hear your side of the story.'
8. In further correspondence on the newspaper's notepaper, Mr Y wrote to the Trust, on 6 May and 14 May, and then requested an IR of his complaint on 12 June.
9. The request was passed to the Trust's chairman, who was temporarily acting as convener. He telephoned the newspaper's editor and then wrote to Mr Y on 19 June:
' .... please advise me of your home address. As I have already advised your Editor, I consider it inappropriate to conduct private correspondence on corporate letterhead.'
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10. The editor wrote to the chairman on 25 June:
'I have no objection to [Mr Y] writing to Chase Farm Hospital on our letterhead, and I note that his first letter gave his home address. The Hospital chose to reply to him [here]: he did not force it to do so.
'In answer to your question, [Mr Y's] correspondence is a private complaint rather than a journalistic enquiry .... It seems to me remarkable that .... you should telephone me as you did to complain as you did, rather than doing your best to resolve [Mr Y's] problem. .... it seems typical of the attitude of Chase Farm Hospital .... that you did not know when speaking to me whether it was [Mr Y's] father or mother who had died. ....'
11. The chairman replied on 30 June. His letter included:
'I had hoped that you would have recognised the impropriety of someone using your paper's letterhead. I can think of no other reason for [Mr Y] having done so other than to [intimidate] the recipients.'
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12. The editor replied on 1 July including:
'.... As I pointed out in my earlier letter, [Mr Y] put his home address on the first letter that he sent to Chase Farm. Your people chose to reply to him at his office address. I wish you would get on with answering [Mr Y's] complaint rather than questioning his motives.'
13. The chairman wrote back on 6 July:
'.... can I point out that, not withstanding his provision of a home address, he signed his letter as "Science Editor" which would suggest a corporate rather than private initiative.'
Evidence of Mr Y
14. Mr Y said that he had used the headed notepaper to be open about the fact that he worked for a national newspaper and to identify himself as a person who would understand technical aspects of his father's care. Also, as he spent a lot of time at work, it would have been easier to contact him there. He had also given his home address on his letter of complaint. At the time of his complaint he had no intention of writing an article about it and his letters never mentioned that he was interested in anything other than a private complaint. The Trust chose to write to him at work rather than at home. At no time did he act other than as a normal complainant, using the NHS procedures.
15. He said that if the Trust had concerns about his motives, or believed that he was pursuing a journalistic investigation, they should have raised that with him directly, when he first wrote. He would have welcomed the opportunity to clarify the position. The first he knew of the chairman's conversation with the editor was when he was asked to see the latter, who told him that the chairman had complained about the use of the notepaper. The editor asked if there was a potential story for the newspaper, but Mr Y explained that it was a private matter.
16. To discuss the matter with his editor in that way was embarrassing, not only because his private concerns were brought to the editor's attention, but also because the editor, who was extremely busy, had been involved by the Trust in Mr Y's complaint. He was also appalled if the Trust thought their actions were a correct way to establish the motivation behind an individual's complaint. If the Trust acted in such a way again they could cause difficulties in relations between a complainant and an employer.
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17. He wanted to make sure that the Trust thought carefully in future about their actions when faced with similar circumstances. Guidelines should be introduced to ensure that no other individual would suffer as a result of their actions. The Trust should appreciate that it was not appropriate to contact a person's employer, and that they should only contact third parties with care and discretion.
18. Although he was not aware of a breach of confidentiality about the substance of his original complaint, there had been a breach of his privacy. The chairman had wasted time in contacting and corresponding with the editor at a time when he should have been dealing with the complaint, particularly as the problem could have been resolved very quickly by a telephone call to Mr Y himself.
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The editor's evidence
19. Although he could not specifically recall the events that were being investigated by the Commissioner, the editor believed that, before the chairman's telephone call, he had had only a general knowledge of Mr Y's bereavement and of his dissatisfaction with his father's care. The chairman telephoned his office and left a message with his secretary to return his call. He remembered that his secretary said that the chairman was quite rude and abrupt.
20. Although he could not recall all the details of the conversation, the chairman definitely complained about Mr Y's use of the newspaper's headed notepaper. He was insistent and his tone aggressive. He did not merely seek clarification of the position but implied that it was disgraceful that Mr Y had used headed notepaper to pursue a private complaint. The chairman asked the editor whether he was dealing with a newspaper enquiry or a private individual's complaint. The editor thought that a reasonable question, but the chairman's tone was very angry and, in his view, unprofessional. The chairman referred to some higher body (possibly the NHS Executive). That seemed to be meant as a threat, and possibly as pressure to try to divert Mr Y from his complaint.
21. The editor had not known previously that Mr Y had been using the newspaper's headed notepaper and, not knowing the circumstances of the complaint, he was not able to discuss the matter in more detail with the chairman. The chairman became agitated, and the editor thought it a strange attitude to take on such a trivial matter. The chairman became confused at one point, referring to Mr Y's mother, rather than his father, as the deceased. The chairman did not mention any other details of Mr Y's complaint.
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22. Following the conversation the editor spoke to Mr Y and saw the correspondence in question. He noted that Mr Y had given his home address on the first letter to the Trust, and that it had been the Trust's decision to reply to Mr Y at work. The editor did not object to Mr Y using the newspaper's notepaper to pursue his complaint, and believed it had been done from a practical point of view - indeed, Mr Y had supplied both home and work telephone numbers and addresses. He did not see it as an abuse of Mr Y's position to use headed notepaper.
Trust comments
23. In comments to the Ombudsman, the Trust's chief executive wrote:
'When [Mr Y] requested an Independent Review .... the Trust's complaints convener .... was already dealing with a number of other complaints .... and had other pressing commitments .... [and] asked if other arrangements could be made for dealing with [Mr Y's] request .... [The] chairman, agreed to act as convener ....
'.... [the chairman] .... was concerned at [Mr Y's] use of [the newspaper's] notepaper and the fact that he signed the first letter as Science Editor and drew attention to this fact in his opening sentence. [The chairman] considered that the correspondence was somewhat aggressive in tone and that the use of the [newspaper's] notepaper could, intentionally or otherwise, intimidate Trust staff. [The chairman] was unsure whether [Mr Y's] priority was the satisfactory resolution of the complaint or whether he also viewed it as a potential press story. He decided to clarify with the Editor .... whether the paper was involved in the case in any way in order to assist in the resolution of the complaint. The Editor's response was that [Mr Y's] first letter had included a home address and that it was the Trust who chose to write to him at his work, rather than home, address.
'....
'.... it is not unprecedented for complainants to write to us using official notepaper or mentioning an official or influential position that they .... might hold. .... In reviewing [Mr Y's] complaint, I consider that it would have been legitimate to clarify with him earlier—probably in the acknowledgement of his first letter—in what capacity he was raising his concerns and where he wished correspondence to be sent. It is understandable that we assumed that he wished to use his business address, but this would have been better dealt with explicitly and with [Mr Y] directly, rather than his employer.
'We regret that this situation has arisen and we will take steps in future, as a matter of policy, to seek early clarification of these issues with the complainant.'
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Chairman's evidence
24. In a written submission to the Ombudsman the chairman explained that on reviewing the correspondence between Mr Y and the Trust he found Mr Y's letters to be aggressive in their nature. That, and the use of the newspaper's letterhead, might have intimidated the Trust staff.
25. He had been unsure whether Mr Y's priority was the satisfactory resolution of his complaint or whether he intended to develop the matter into a story. He believed that a clear statement from the editor, that the newspaper was not involved in the complaint, would assist in its resolution.
26. He did not consider that it would be a breach of confidentiality to talk to the chief executive of a body whose corporate letterhead was used in the correspondence. He considered that it was proper to telephone the editor to clarify the newspaper's interest in the matter, without reference to anything specific about the patient.
27. During his conversation with the editor he did not give any information about the substance of Mr Y's complaint. He had explained that the Trust had received a complaint from Mr Y on the newspaper's letterhead, signed as coming from the science editor. He had explained that he needed to be clear as to whether it was a private or a press matter, as in the latter case he would have needed to alert the NHS Executive that there might be national press criticism of the Trust.
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28. He did not approach Mr Y directly, as he preferred to keep the issue of potential publication separate from that of resolution of the complaint. From the correspondence, it seemed that Mr Y was already agitated and the chairman had hoped to avoid a potentially difficult confrontation with him by dealing with the matter on a purely professional level with the editor.
29. He had miscalculated the editor's reaction. He had anticipated that the editor would understand his concerns and that he would handle any discussion with Mr Y sensitively. The chairman had hoped that his contact with the editor would contribute to the resolution of the problem whereas it made matters worse. The editor's sympathies were clearly with Mr Y. The chairman sincerely regretted that in his telephone call to the editor he had wrongly referred to Mr Y's "mother". It was a slip for which he had apologised in the next breath and, again, in subsequent correspondence.
30. The chairman's comments to the Ombudsman included:
'I remain surprised that the Editor of the [newspaper] had no objection to his staff using corporate letterhead in this way ....
'....
'I accept that it may have been better had the Trust reacted to the use of the [newspaper's] letterhead on receipt of [Mr Y's] first letter. The damage, however, had been done and the implicit threat had been registered.
'....
'I was concerned to ensure the proper resolution of the complaint and had been fully supported in my considerations by the then Medical Director of the Trust who had painstakingly investigated and corresponded with [Mr Y]. I was also concerned to clarify the interest of the [newspaper] as I had a duty to protect the reputation of the Trust and the NHS.
'I accept that, with the benefit of 20-20 hindsight, it was not a good idea to phone the editor but I remain confident that my actions were absolutely legitimate. There was no breach of patient confidentiality and as [Mr Y] had written on [the newspaper's] letterhead and signed above his job title he had "opened the door" for me to make contact with the chief officer responsible for that organisation.'
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Findings
31. The facts of this case are not in dispute. Mr Y used the newspaper's notepaper to make his initial complaint and in subsequent correspondence. However, he had also given his home address—a fact apparently not noted by the chairman when he wrote to Mr Y on 19 June 1998 (paragraph 9), having already contacted the editor. I have noted the chairman's suspicions about Mr Y's motives and I can understand why they arose, but that is not the matter at issue here. Mr Y says and the Trust acknowledges that, if there had been a query about Mr Y's intentions, the simplest course of action would have been to ask him directly. I agree.
32. I note that the chairman did not pass on to the editor any significant details of Mr Y's complaint. Nevertheless I cannot see that it was appropriate for him to raise his concern about Mr Y's intentions first with the editor. The NHS complaints procedure has to be conducted in confidence, and it was unnecessary (for the purposes of the procedure) to contact the editor. Had the editor taken a different attitude, the consequences could have been serious for Mr Y. Happily that was not the case, though as Mr Y pointed out, he still found it embarrassing that his private concerns had been brought to the editor's attention. I can understand that. I uphold the complaint.
Conclusion
33. I have set out my findings in paragraphs 31 and 32. The new Trust have asked me to convey—as I do through my report—their apologies to Mr Y for the shortcomings I have identified.
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