You will have seen in part 1 the way in which members of PHSOtheFACTS were invited into dialogue by new Ombudsman, Rob Behrens, so that the organisation could ‘listen and learn’. Unfortunately, Mr Behrens took umbrage when we accused PHSO of ‘corruption of purpose’ and ‘criminal fraud’.

The recent Daniel Morgan Report gives a detailed definition of ‘institutional corruption’ as outlined recently by David Allen Green.

‘The documentation reveals the following wide range of actions and omissions by senior postholders on behalf of their organisations; many of these actions and omissions have been identified in the reports of other independent panels and inquiries: 

‘i. failing to identify corruption; 

‘ii. failing to confront corruption; 

‘iii. failing to manage investigations and ensure proper oversight; 

‘iv. failing to take a fresh look at past mistakes and failures;  

‘v. failing to learn from past mistakes and failures; 

‘vi. failing to admit past mistakes and failures promptly and specifically; 

‘vii. giving unjustified assurances; 

‘viii. failing to make a voluntarily commitment to candour; and

ix. failing to be open and transparent.’

And now the panel comes to what it meant by ‘institutional corruption’:

‘However, when the failures cannot reasonably be explained as genuine error and indicate dishonesty for the benefit of the organisation, in the Panel’s view they amount to institutional corruption. 

Following our meeting on 10th October 2017 we wrote to Mr Behrens as part of a continuous dialogue which he verbally encouraged. We were anxious to inform him that real improvement went well beyond the proposed staff training scheme. You can see our letter in full below:.

23rd October 2017 

Dear Mr Behrens,

Apologies for the delayed response following our meeting on Tuesday 10 October. I hope you can appreciate that forming a group decision takes a while. We would all like to share our appreciation of the time you and your colleagues took to listen to our concerns and the promises given to individuals for follow-up.  The agenda focused heavily on our own experiences of injustice and as you are aware many of these cases are still in the system at PHSO and ‘under your watch’.  In our view resolution of these historic and current cases is an essential first step towards providing a better Ombudsman service. Resolution of historic cases is a view shared by Bernard Jenkin in a recent report on the Quality of NHS complaints investigations which looked specifically at the role of HSIB.  The committee referred to unresolved historic cases as ‘this baggage of history’ 

78. The EAG further recommended that “the Secretary of State establish a process to address unresolved cases, aimed at providing truth, justice and reconciliation to address the concerns of patients, families and staff affected”, warning that unless outstanding and historic cases are reopened and re-examined “this baggage of history will continue to taint future safety investigations.” 119

We are sure that you would agree that those who have failed to receive a good service from PHSO also deserve truth, justice and reconciliation. It may be helpful to you that parliament is in agreement on this point. 

On the issue of staff training there is general opinion that until you identify the real cause of the problems at PHSO any staff training is unlikely to hit the spot. You must first identify why so many of your ‘customers’ are dissatisfied with your service and in our view this goes well beyond a lack of empathy or professionalism at the level of individual case workers. There is systemic corruption of the process which most likely stems from the top of the organisation down.  I offer some examples from recent correspondence to the phso-thefacts mail box. Comments such as the ones below are received on a weekly basis from new individuals seeking support. 

Well the case is concluded circa 900 days after starting – it went from pretty much upholding everything thing to very little at all.  I am currently looking for legal support to take them to task 

It would appear in this instance that the case worker was able to identify maladministration in the evidence put forward by the complainant, but at a higher level the findings were watered down to a negligible uphold. This is a very common occurrence and we believe it is due to the fact that PHSO cannot command compliance but must negotiate the outcome with the public body to find a resolution they will accept. I learnt from Philipp Mende that you currently have a 99% compliance rating but is this achieved at the cost of upholding significant issues which will simply occur again to destroy more lives in the future? 

The second example is from ‘whatdotheyknow’ where there are a large number of FOI questions regarding PHSO. In this instance there is a deliberate attempt not to investigate at all.  This is another common issue with people approaching phso-thefacts.

In my personal experience. I got a final response letter from UKVI referring me to the PHSO. I put a great deal of effort into gathering evidence and wrote up a detailed report. I did several DPA requests to UKVI which they avoided as much as possible, and when they finally gave in they broke the law in how slowly they responded. I complained to the ICO who found in my favour but took no action. 
The report I sent to the PHSO was never read. They came back to me saying that the letter from UKVI was wrong, and actually I had to complaint to UKVI again before they could look at my case. 
I complained to UKVI again. Again they were very slow. Upon receipt of another letter I complained to PHSO again. They took a lot of time again to reply, then claimed that my complaint was not valid because too much time had passed since the original letter from UKVI referring me to them. 
Yes, you read that right, the original final response, the one that PHSO and UKVI later claimed was invalid and made me go through their slow complaints process again. 
No one ever read my report. PHSO exists only to create the illusion of democracy. Their staff will use any excuse not to investigate a complaint. That’s what their paid to do.

These issues go beyond training Mr Behrens. In the attached data chart you will see that PHSO consistently uphold barely 5% of all the complaints received in any year. Only upheld complaints lead to improvements in service delivery and a safer NHS.  How can it be that 95% of the people who complain to PHSO have no valid case? 

On the issue of trust we have all had our evidence repeatedly denied and manipulated by every part of the complaints process over a number of years. Only honest action will restore trust as we have heard the promises of change too many times. It is not possible for us to trust in the PHSO while your organisation continues to publish data which does not reflect the true facts. 

In the Annual Report for 2016/17 you state that;

In 2016-17, we reviewed 81 decisions and upheld 15 of them. In 2015-16 we reviewed 218 decisions and upheld 14. The significant decline in the number of complaints needing a review is likely a result of our more consistent criteria and ways of working at every step of our process.

It turns out that the ‘significant decline’ is not due to consistent criteria and ways of working at every step’ of your process but to the PHSO simply declining to carry out reviews on an increased number of review requests in 2016/17. 

In 2015-16 there were 1,969 review requests concerning the decision. PHSO reviewed 218 (11%) and upheld 19 (0.9%) 

In 2016 – 17 there were actually 383 more review requests for decisions with the total of decision reviews at 2,352. . Even more people dissatisfied yet PHSO reviewed only 81 (3.4%) and upheld 15 (0.6%) . Without putting the total number of review requests in the Annual Report they then try to use the lower figure to argue that their service has improved at all levels when the data show the absolute opposite. More dissatisfaction. How can they be trusted?

[The link to this quote no longer works which suggests that this thread has been removed from Whatdotheyknow.com}

It is all very well to stand before us with assurances that we can trust you to deliver change but it is impossible for us to trust an organisation which continues to make wilful misrepresentations of the facts which are essentially criminal acts of fraud.  

Equally, your high internal scores on the Service Charter quarterly reviews do not reflect the amount of work that you have accepted is required to restore the Ombudsman to an exemplar service. The 99% accuracy scores simply demonstrate that PHSO is incapable of accurately assessing its own performance. This is why external moderation must be brought into the system at some point. The Health Select Committee recommended regular external audits with reports delivered to parliament and placed in the public domain and we support this option. We have no confidence in internal reviews, internal quality control or internal complaint handling about your own service.  

In order to assist you in ‘clearing the way’ for resolution of our cases we are compiling resolution pro-formas which will provide you with key information as to the status of our complaints and the resolution we are seeking. It may be valuable to meet again in mid November when the pro-formas will be complete and they can be handed in to yourself or senior management.  Please let me know if another meeting would be agreeable. 

Thank you once again for your time and in anticipation of your assistance. We are hopeful that you will be able to share with us the options available for moving forward with these cases by the end of December. And we are also hopeful that you can achieve the desired reform and deliver an Ombudsman fit for purpose in the very near future. 

Yours sincerely,

Della Reynolds 

Phso-thefacts 

In his response letter of 22nd November 2017, one of the first things Mr Behrens did was close down any hope that historic cases would be reviewed, even though he accepted that our case studies were ‘horrific’. 

He limited our contact to attendance at open meetings, then withdrew attendance tickets from members of PHSOtheFACTS to the 2018 meeting on the basis that seats needed to be made available for other attendees.

He took great offence at our suggestion that the wilful misrepresentation of facts in official reports is ‘fraud’.  The Met Police did not dismiss our claims but stated that due to the privacy legislation they were unable to interview PHSO staff or make a request for evidence. 

He claimed that we made ‘baseless’ accusations even though each point was supported by evidence and cut all further communication with us.

However, comments from an ex-PHSO employee on a recent David Hencke blog supports our claims that senior management interfere with complaint handling and by doing so, corrupt the purpose of the Ombudsman investigation process.

By the Daniel Morgan Report definition of ‘institutional corruption’ Rob Behrens is guilty on all counts.