We all need academics. They warn us when things aren’t working and they are a vital part of the debate on how to find better ways forward. They are highly respected because we believe that their research findings are robust. Not based on opinion which can be easily challenged, but on reliable evidence which has been thoughtfully considered from all sides to reach an unbiased conclusion.
Often through suffering personal injustice campaigners have become aware that aspects of society are not working and that this failure is causing harm. Campaigners are by default a minority group because instead of shrugging with resignation as most do, they work for change against a system which is slickly designed to resist such challenge. The media controls the narrative, the legal teams are funded by the bottomless pit of taxpayer money and battle-weary servants of the state can be refreshed with brand new faces who pile up the blame on those who went before giving everyone but the campaigners a ‘new start’. Those in authority label campaigners ‘unrepresentative’, a ‘small minority’ and ‘hostile’ in order to reduce their impact. Due to the intransigence of the state machinery campaigners need to have their voice amplified by the media, the courts or by independent, academic research for their message to be both heard and acted upon.
PHSOtheFACTS is a campaign group who have all suffered injustice at the hands of the Parliamentary and Health Service Ombudsman (PHSO) Dealing as it does with NHS complaints, the failure of PHSO can have deadly consequences. Since the arrival of Rob Behrens in April 2017 there has been a widespread acceptance that prior to this time PHSO had ‘lost its way’ and failed to deliver an acceptable service to the public. We saw the unprecedented actions of rebuke of the Ombudsman by the Secretary of State for Health, Jeremy Hunt, the resignation of the Deputy Ombudsman, Mick Martin, under a cloud of collusion, closely followed by the demise of the Ombudsman herself Dame Julie Mellor. With Ombudsman reform bubbling on the back burner this would be an ideal time for academics to research how this vital public service failed so spectacularly. It is clear that the internal checks and balances were inadequate and academic research could offer great insight on ways to design an accountable Ombudsman which would restore public confidence. So why isn’t this on the academic agenda?
Academic research requires funding and that funding comes directly from the government bodies who are the subject of the research. Too often the trigger for research is damage limitation following media or legal criticism. The organisation sets the terms for the project, supplies the data to be analysed and pays the piper for services rendered. You do not have to be overly cynical to see the obvious dangers of bias in this approach.
Bias through the control of the data:
Stung by media coverage of the relentless campaign by James Titcombe to have the Ombudsman investigate the avoidable death of his baby son, PHSO called in the services of Baroness Fritchie to review the way PHSO investigates avoidable death complaints. Because there was no computer tagging to identify such cases they were individually chosen by the PHSO staff who had handled them.
(1) It was not possible to identify these [avoidable death cases] from PHSO’s electronic caseworking system, so those staff who handle health complaints were asked to put cases forward. (p8)
Of the 100 cases put forward, 30 had received an investigation with 29 of those cases receiving an uphold, 10 were still at the assessment stage and 60 were closed without a full investigation. A surprisingly high figure of 59 cases had been allowed an investigation due to Ombudsman discretion as they had been submitted outside the statutory 12-month time limit. Did anyone check that this data was ‘representative’? Did anyone call for evidence to be submitted directly by complainants for comparison? There is no record this took place but this didn’t affect the outcome of the review being held in high regard, putting minds at rest that ‘something had been done’.
Bias by the dismissal of data:
In 2017 Martin Lewis from Money Saving Expert carried out consumer research regarding ombudsman services in the UK. Approximately 100 people completed the questionnaire regarding PHSO (p50). In his final report – Sharper teeth: the consumer need for Ombudsman reform Martin Lewis acknowledged the potential bias in self-selecting groups.
Respondents self-selected to take part in the survey, so it is to be expected that the results would be a little more negative than in a non-self-selecting poll (as people who have a complaint to make were more likely to participate). Despite this, the results were stark: (p2)
The findings were stark indeed. 82% said the handling of their complaint by PHSO was poor and 75% reported that the Ombudsman was biased against them. Valuable consumer data to feed into future research however this evidence was totally dismissed by an academic as ‘unrepresentative’ yet is it any more unrepresentative than 100 cases personally chosen by PHSO staff?
Bias by the omission of data:
In the Reseach Handbook of the Omudsmant here is a chapter entitled Ombudsmen: ‘hunting lions or swatting flies’. Having decided to focus attention on the PCA, more commonly known as PHSO, this academic then cites the LGO watcher for examples of the service user voice despite the fact that this campaign is specific to the Local Government Ombudsman and it has not been updated since 2016. She also cites a study by Creutzdelt and Gill (2015) which recorded the views of PHSOtheFACTS members, an active group, specifically focused on PHSO reform, yet none of our publicly available comments was included. It was as if we didn’t even exist. The whole concept of complaint handling as ‘swatting flies’ is dismissive of the importance of justice to the individual, suggesting that Ombudsman time would be better spent ‘lion hunting’ and uncovering national scandals. This was a debate framed to dismiss the importance of the citizen which was assisted by omitting the critical consumer voice.
Bias by failure to draw appropriate conclusions:
Looking at the issues of ombudsmen from a consumer perspective, Martin Lewis concluded that powers of enforcement were essential to Ombudsman bodies. He termed bodies without such legal powers as ‘flaccid’, serving no useful purpose, and complainants wholeheartedly agree with this logical viewpoint. In March 2019 following the release of the APPG report which supported these findings, a summary was written up for UKAJi.
“Linked to this a second recommendation is that schemes which do not have mandatory membership, nor binding recommendations should not be allowed to use the ombuds title (APPG Consumer Protection 2019).”ukaji.org/2019/03/18
No mention in this analysis that due to a lack of binding powers Rob Behrens at PHSO would no longer be able to use the title Ombudsman and the impact this would have on public confidence. Why not? Quite possibly because in academic circles the power of ‘own initiative investigation’ is given prominence. Indeed, own initiative powers may enable the Ombudsman to hunt down lions but without binding powers, he could only pull the trigger if the lion agreed to be shot.
Academic research into ombudsman services which fails to accurately record the consumer’s voice is flawed and proper reform made impossible by a collective failure to identify the real problems. Our lived experience does not sit well with academic models of how things should be and rather than challenge the theoretical assumptions it is easier to dismiss the dissonant views as invalid. For too long the voice of the citizen has been suppressed but when our voice is validated by others our call for change is more difficult to ignore. For things to improve we all need to acknowledge the real causes of failure and then set about putting that right. Tinkering at the edges of ombudsman reform has failed the public for the last 50 years.
In ‘Why campaigners need academics – Part 2’, PHSOtheFACTS will review supporting evidence and then suggest a viable academic research project. We welcome this opportunity to engage with the academic community.