DWP deliberately misled O’Sullivan coroner in order to cover up WCA failings
- Category: Latest news
- Created: Monday, 28 September 2015 16:45
The DWP deliberately misled a coroner about three missed opportunities to prevent the death of Michael O’Sullivan, a claimant with mental health conditions who committed suicide after being found capable of work. As a result, they continue to put claimants lives at risk.
Shockingly, the department have even implied that they made the correct decision in Mr O’Sullivan’s case and have failed to offer any apology for the one error they are prepared to own up to.
Fit for work was trigger
In a report that only came to light last week, thanks to the work of the Disability News Service, a coroner ruled that a finding that a claimant was fit for work was the ‘trigger’ for his suicide six months later.
Michael O’Sullivan committed suicide in September 2013. He had been suffering from anxiety and depression for a number of years and had previously been in receipt of incapacity benefit. He applied for employment and support allowance (ESA).
Following the inquest into his death in January 2014, the coroner issued a Regulation 28 report which is designed to prevent future deaths occurring in similar circumstances.
In the report the coroner stated that:
“I found that the trigger for Mr O ’Sullivan’s suicide was his recent assessment by a DWP doctor as being fit for work .”
The Coroner went on to say that:
“During the course of the inquest , the evidence revealed matters giving rise to concern. In my opinion, there is a risk that future deaths will occur unless action is taken . In the circumstances , it is my statutory duty to report to you [the DWP]. “
The matters of concern which the coroner set out were:.
“The DWP assessing doctor (who saw Mr O ’ Sullivan for a 90 minute consultation) did not take into account the views of any of Mr O’ Sullivan’s treating doctors, saying that the ultimate decision maker would do that.
“However, the ultimate decision maker (who is not , I understand, medically qualified) did not request and so did not see any reports or letters from Mr O’Sullivan’s general practitioner (who had assessed him as being unfit for work), his psychiatrist or his clinical psychologist.”
The DWP produced a 73 paragraph report in response to the coroner’s request. Most of it is taken up with setting out the history of the work capability assessment (WCA), explaining the current process and stressing that 100,000 assessments are carried out each month.
However, only 7 short paragraphs (which you can read at the end of this article) directly address Mr Sullivan’s death, along with a single paragraph at the end of the report.
The rest appears to be designed to cover up the numerous failings on the department’s part that led to a completely avoidable death.
First lost chance: scrutiny stage
At the start of a claim for ESA a claimant completes an ESA50 questionnaire, setting out how their condition affects them.
When an ESA50 form is received by the DWP, an Atos – since replaced by Maximus - health professional carries out a scrutiny of all the available evidence, including fit notes.
At this stage the health professional could decide that there is sufficient evidence to awarded ESA or that further medical evidence is needed before the case is progressed or that a face-to-face medical should take place.
At paragraph 28 of their report for the coroner, the DWP explain that where a claimant expresses ‘suicidal ideation’ in their ESA50 then further medical evidence should be sought. This could, for example, be from their GP, mental health nurse, consultant or other health professional.
At paragraph 53 the DWP admit that Mr O’Sullivan “expressed suicidal thoughts” in his ESA50 and go on to say:
“However, further medical evidence was not requested in line with the stated policy (outlined at paragraph 28) where the claimant has referred to suicidal ideation.”
No explanation is given for this failure, other than that:
“. . . with such large numbers of people involved in this system there will be inevitably be instances where processes are not conducted in line with the stated policy.”
And the only remedy that the DWP propose for this error that cost a man’s life is that they will “issue a reminder to staff about the guidance related to suicidal ideation that has been described in this report.”
There is not a single word of apology or remorse for this failing.
Second lost chance: face-to-face assessment
Mr O’Sullivan was then called to a face-to-face assessment. Usually this would be with a different health professional to the one who carried out the initial scrutiny of the papers.
According to the coroner’s verdict, which has not been published online.
“The doctor who assessed him on behalf of the Department for Work and Pensions (a former orthopaedic surgeon) concluded that he was at no significant risk by working. The assessing doctor did not ask Mr O’Sullivan if he had suicidal thoughts.”
There are three vital issues there that the DWP fail completely to admit to or discuss in their report.
Firstly the healthcare professional was not a mental health specialist but a former orthopaedic surgeon.
Did they have the necessary skills to carry out an assessment of a claimant with anxiety and depression who had been referred to his community mental health team and who had described suicidal thoughts in his ESA50?
Secondly, why on earth did the former orthopaedic surgeon not ask Mr O’Sullivan about his suicidal thoughts, as the coroner states? Did they simply not read the ESA50? Were they too embarrassed? Did they not take these thoughts seriously and dismiss them out of hand?
Crucially, we are not told what the former orthopaedic surgeon found in relation to the substantial risk regulations.
These state that where there would be a substantial risk to the claimant or someone else if they were found capable of work (or work-related activity) then they must be awarded ESA. Suicidal thoughts are a prime example of such a risk and the health professional has to say in their report whether they consider these regulations apply or not and give and give grounds for their opinion.
The DWP refer to these regulations in their report, but do not make it clear that the health professional is obliged to make findings about them. Nor do they give any hint of what findings the former orthopaedic surgeon made in relation to substantial risk.
Thirdly, when the former orthopaedic surgeon saw that this was a case involving mental health and read the ESA50, why did they not stop the assessment at that point and insist it must be postponed until further medical evidence was obtained. At the very least, why did they not seek advice from a senior medical assessor as to whether the interview should continue in the absence of further medical evidence?
We will never know the answers to these questions, because all the DWP say about that face-to-face assessment is:
“He attended a second face-to-face assessment on 13 March 2013.”
We are not even told by the DWP whether the former orthopaedic surgeon considered that Mr O’Sullivan scored sufficient point to be found incapable of work.
At the very least, the DWP should have stated in their report whether the former orthopaedic surgeon had been obliged to undertake retraining.
In fact, it appears they did not even bother to interview him or her, in spite of his part in the unnecessary death of a fellow human being.
Third lost chance: the decision
Even at this stage it was not too late to save Michael O’Sullivan’s life.
The decision maker is under a duty to consider all the evidence before reaching a decision on capacity for work. Legally, they cannot just rubber stamp the health professional’s findings.
The decision maker should have read Mr O’Sullivan’s ESA50. They should have immediately noted the suicidal thoughts in the questionnaire and the failure by Atos to obtain further medical evidence.
At that stage they should have returned the ESA85 medical report to Atos and asked for the proper procedure to be followed before a decision could be made.
Alternatively, they could have noted the suicidal thoughts, looked at the failure of the medical assessor to discuss them and concluded that the only available evidence, Mr O’Sullivan’s ESA50, showed that he met the requirements to be found at substantial risk and placed in the support group.
Why did the decision maker fail so entirely to carry out their legal duties?
We will never know, because all that the DWP say in their report is that:
“On 26 March 2013 Decision Maker decided he did not have limited capability for work.”
Again, at the very least this appears to be a decision maker who is in urgent need of retraining, because other lives may already have been lost in a similar way.
DWP believes they got it right
Astonishingly, in their report, the DWP strongly imply that even if they didn’t follow proper procedures, they came to the right decision anyway. Their response to the coroner states:
“Mr O’Sullivan subsequently claimed Jobseeker’s Allowance from March 2013, for around six months without sanction before he, unfortunately took his own life in September 2013.
“ The fact that he did not incur any sanctions during this period means that he was maintaining his obligations under the Jobseeker’s Agreement to be both available for and actively seeking employment on a weekly basis.
The implication here is clear: if Mr O’Sullivan was so unwell at the time of his WCA, how come he went six months on JSA without a sanction?
The possibility that it may have been the unbearable effort of surviving on JSA, without breaking the rules, that caused Mr O’Sullivan to take his life has clearly not crossed the collective mind of the DWP.
The DWP report admits to just one error and covers up many others in a clear attempt to mislead the coroner about the extent of the failures at every stage of the WCA system in this case.
The department also chose not to utter one word of regret, let alone apology, for the death of Michael O’Sullivan. Instead they shrug it off as just a mistake that’s bound to happen when you deal with so many cases.
There are, as a result many questions which we have suggested will never be answered.
But, in fact, there is no reason why these questions should not be answered by the DWP, except that they don’t wish to shine a spotlight on the multiple failures of an unfit system.
So, the biggest question of all is, are there any influential groups or individuals out there who care enough about the death of a claimant to begin the call for an independent inquiry into the entirely avoidable death of Michael O’Sullivan?
EXTRACT FROM THE DWP’S REPORT ON MICHAEL SULLIVAN
Mr O’Sullivan’s case
50. Mr O’Sullivan had anxiety and depression. He had been a recipient of income support (IS) on the grounds of disability since July 2000. On 30 March 2012, he was notified that the conversion phase had begun for him to see whether he would qualify for ESA.
Decision on conversion
51. He attended a face-to-face assessment on 17 August 2012. The opinion of the healthcare professional in their report was that Mr O’Sullivan did not meet any descriptors dealing with Limited Capability for work. On 13 September , the decision maker decided that Mr O’Sullivan’s IS award did not qualify for conversion to ESA and the award was stopped from 18 October.
52. Mr O’Sullivan then appealed to DWP on the approved form on the ground that he felt the questionnaire did not deal with his problems so he could not express himself. The decision of 13 September was reconsidered by a DWP Decision Maker on 28 November 2012 but not revised.
53. Mr O’Sullivan then made a new claim for ESA in November 2012. He completed an ESA50 (claimant questionnaire) which said was being investigated by his Community Mental Health Team, and within which he expressed suicidal thoughts. However, further medical evidence was not requested in line with the stated policy (outlined at paragraph 28) where the claimant has referred to suicidal ideation.
54. He attended a second face-to-face assessment on 13 March 2013. On 26 March 2013 Decision Maker decided he did not have limited capability for work.
55 Mr O’Sullivan subsequently claimed Jobseeker’s Allowance from March 2013, for around six months without sanction before he, unfortunately took his own life in September 2013.
56. The fact that he did not incur any sanctions during this period means that he was maintaining his obligations under the Jobseeker’s Agreement to be both available for and actively seeking employment on a weekly basis.
73. We have noted the issues in this case and will continue to monitor our policies around assessment of people with mental health problems while we await the outcome of related litigation (discussed at paragraph 66). We will also issue a reminder to staff about the guidance related to suicidal ideation that has been described in this report.