Who watches the watchers?

Recently, we learned from David Czarnetzki’s blog that according to academic, Professor Robert Thomas; “The law distinguishes between independence as a structural feature and impartiality as a person’s state of mind.” 

Thomas reassures us that ‘independence’ is structurally built into Ombudsman institutions so there is no reason to be concerned about bias. We also learned that Ombudsman Rob Behrens believes there should be no further oversight of his decisions as he is ‘the body of last resort’ but without external review who would determine if the Ombudsman’s state of mind was always ‘impartial’?

Back in 2016, PHSO employed external review staff and external associates as outlined in this response to a FOI request: External Audit Arrangements at PHSO.

 External Reviewers – We use a pool of external reviewers to look into
the decisions made in our casework. Our external reviewers function
allows us a further level of independent assurance that the decisions
we make are sound.

External Associates – Since February 2016, in addition to our internal
quality and assurance checks, we have five external associates who
carry out in depth quality sampling on sound decision making on
randomly selected cases.

https://www.whatdotheyknow.com/request/external_audit_arrangements_at_p

The addition of External Associates was in response to criticism from the Health Select Committee in their 2015 report Complaints and Raising Concerns.

The serious criticisms of the Ombudsman from the Patients Association are of grave concern. We recommend that an external audit mechanism be established to benchmark and assure the quality of Ombudsman investigations. In her response to this report we ask the Ombudsman to set out how her organisation is seeking to address problems with its processes, and a timetable for improvements. (Paragraph 91)

But all external verification was stripped out by Ombudsman Rob Behrens when he took office in 2017.

He is the final arbiter and that is that.

So is there any evidence that he acts without impartiality? A review of the recent written evidence to the Public Administration and Constitutional Affairs Committee (PACAC) shows a stark difference between that submitted by organisations and that from complainants.

Written evidence from the Professional Standards Authority for Health and Social Care (PSA) (HSO46) 

Overall, we have had a productive and mutually beneficial relationship with the PHSO during 2022/23. This has involved information sharing to support the exercise of our statutory functions as well as collaboration on areas of alignment arising from our respective policy programmes.

Written evidence from The General Medical Council (HSO32) 

We are pleased to note that we remain in an ongoing and positive relationship with the PHSO at both a senior leadership and operational level:

Written evidence from The Caribbean & African Health Network (HSO35)

We appreciate the opportunity to offer our candid assessment of the Parliamentary and Health Service Ombudsman, particularly regarding casework and productivity, staff management and training, and its impact on other organizations. As a Community Interest Company, we have had the opportunity to observe and appreciate the exceptional work carried out by the PHSO in these areas.

Written evidence from The Isle of Wight NHS Trust (HSO27)

When complaints are investigated by the PHSO, we find the Case Handlers in the main responsive and supportive, particularly when we have some operational challenges that require extensions to deadlines. The opportunity to comment on draft reports, and provide further information means that we feel listened to as well as those raising a complaint.

Written evidence from Sean Richardson complainant (HSO42)  

Despite his personal apologies for the critical failings detailed above, the Ombudsman stands by his report, a report that has not addressed the predominant issue that was in the agreed scope. A report that the Ombudsman described as containing critical failures. Were the critical failures in the handling of our case overlooked or viewed as irrelevant? We’ll never know. Is that not the purpose of a review?

Written evidence from David Willingham complainant (HSO43)  

I have previously provided evidence showing how a culture of dismissiveness and denial towards complaints of poor service and misconduct pervades the PHSO’s organisation. I also evidenced how, in response to a Freedom of Information (FoI) request, the PHSO untruthfully denied holding any information about the standards of conduct applicable to the Ombudsman.

Written evidence from Dr John Davis complainant (HSO47)  (As given over the telephone due to his disability)

The PHSO has treated him as a person with a disability much differently to how he has been treated by the LGSCO regarding extremely similar matters. In a civilised society he ought to have an explanation for this. 2. The PHSO has demonstrated that it is incapable of fully understanding the requirements of the Equality Act 2010 & how this impacts upon him as a patient who is blind, among other things, having timely access to information.

It would appear that the organisations enjoy a very positive relationship with the Ombudsman, while the complainants are not so fortunate. Only one organisation was critical of the Ombudsman due to their own first-hand experience of using the service to resolve complaints.

Written evidence from The Adam Bojelian Foundation CIC (HSO39) 

The AdsFoundation has received several inquiries at its pro-bono clinic from Complainants to the PHSO, all who report negative experiences with the PHSO. Most are disabled themselves or family members of disabled patients, both child and adult and/or frail elderly patients. Several complaints concern the events leading to the death of their loved ones. Our managing director also has personal first-hand experience as a Complainant to the PHSO concerning the circumstances of Adam’s last months and weeks of healthcare. 2.2 Several themes emerge from accounts given at the AdsFoundation pro-bono clinic and our managing director’s personal experience, suggesting reform of the PHSO is needed. Disabled and frail elderly patients in particular, seem to be poorly served. The PHSO and its specialist advisors seem to too often repeat the same errors specially making prejudicial assumptions and presumptions, which the Complainants believe harmed (and in some cases contributed to the death of their loved one) and led to a complaint to the PHSO being necessary. PHSO findings expressly state that poor care is to be expected and is acceptable for disabled patients with long term health conditions, alongside good care.

Aware that the current corporate governance arrangements at PHSO are compromised PACAC made a recommendation for external audit in their 2016/17 PHSO Annual Scrutiny Report.

Given its past problems an external audit mechanism is required that will provide robust assurance of the value for money of the PHSO’s operations to its Board, the Committee and the public. We recommend that the Ombudsman asks his non-executive directors to commission this, and report back to us. p7

This includes replacing the present Corporation Sole with a proper public body governed by an independently appointed non-executive board to provide for proper internal governance and oversight of the Ombudsman. The PHSO currently has a board that includes eight non-executive directors, but they are appointed by the Ombudsman.37  p8

We have no doubts about the quality of the individuals who act as non-executive directors of the PHSO, but the Corporation Sole model is no longer fit for purpose.  p8

It is easy for Rob Behrens to maintain the ‘independent and impartial’ narrative when he is in complete control of his own moderation systems. As John McDonnell put it – you mark your own homework. Faced with an instruction to set up an external audit mechanism Rob Behrens plumped for peer review, allowing him to choose the Chair from among his international ombudsman colleagues. The 2019 PACAC committee where not so enamoured with this response, referring to it as ‘culturally cosy’.

Any truly independent review of the Ombudsman service would quickly identify an inherent lack of impartially threaded through every investigation report due to the failure of Parliament to provide the Ombudsman with powers of compliance. A case in point is the recent handling of the 1950’s women pension complaint (WASPI) When the complainants were dissatisfied with the draft 2nd report they were forced to challenge it through judicial review and Rob Behrens defended his report every step of the way.

However, when the DWP found themselves to be dissatisfied with the findings they simply withdrew from the process, as reported by David Henke, Westminster Confidential November 2023

All 3.5 million 50s born women including the six “test case” complainants should get no compensation because there has been no maladministration and no evidence of financial loss, the DWP has told Rob Behrens, the Parliamentary Ombudsman. Even if there were maladministration the submission says his report does not show “there was injustice as a consequence of that maladministration.”

Their 118 paragraph submission rejects his entire draft report and his modest proposal of £1000 compensation for the six test cases, which the department says is, anyway, too high.

https://davidhencke.com/2023/11/27/exclusive-dwp-paper-says-paying-any-maladministration-compensation-to-3-5-million-50s-women-is-a-major-fraud-risk/

No need for the DWP to crowdfund for legal backing they can simply walk away and the Ombudsman has no option but to put the decision back to Parliament. This is a very embarrassing position for the Ombudsman to find himself in. It starkly demonstrates the inherent imbalance of power between complainants and organisations which makes a mockery of the Ombudsman service, no matter how you try to spin it.

Quite possibly, some of his peers are wincing at the ‘cop out’ description given by David Hencke.