Letter to Linda Farrant, Chair of Audit, Risk and Assurance Committee.

11th May 2021

Linda Farrant

Chair – Audit, Risk and Assurance Committee

Parliamentary and Health Service Ombudsman

Millbank Tower

London SW1A 0AA

Dear Ms. Farrant,

I write to you in your capacity as Chair of PHSO’s Audit, Risk and Assurance Committee, and note the Committee has, within its remit, responsibility for:

  • Corporate Governance
  • Upholding standards of propriety

I raise my concerns that, the Board in general, and the Ombudsman and his staff in particular, display serious failings in both the above areas.

As a result of the failure of Mr. Behrens and Elizabeth Davies to positively respond to Ms. Reynolds letters, this correspondence is initially being sent to you directly. 

The e mail sent by Maria Mansfield to Della Reynolds on 30th April 2021, is the catalyst for writing this letter. The final line states:

“The Ombudsman has previously indicated that due to serious and unfounded allegations, PHSO is no longer formally engaging with you in correspondence” 

Request for action 

I ask where the issues go from here. Going forward, what I, and others, seek to know is the following:

  • What precisely is Mr. Behrens issue with PHSOtheFacts. Is it a personal issue with Ms. Reynolds or the group as a whole?
  • If the latter, how does PHSO want to communicate with us as members of the public. It seems ludicrous that neither Mr. Behrens nor Elizabeth Davies will respond to the letter of 22nd April, written on behalf of 25 people just because it had Ms. Reynolds name on it. Would PHSO prefer us each to send the same letter individually?
  • I am also associated with another group called NHS Complaints and Investigations. Has Mr. Behrens blocked contact with that group? I have no information that he has. If his issue with Ms. Reynolds is a personal one, you should accept this letter from me as written in a personal capacity.
  • What precisely are the issues Mr. Behrens finds serious and unfounded? To make such bland accusations, mostly aimed at a particular individual diminishes perception of the Ombudsman to one of a petulant child in a school playground.

I ask that you personally acknowledge receipt of this letter by 20th May 2021. Acknowledgement from Maria Mansfield or other PHSO staff, including Mr. Behrens, will not be acceptable

In addition I ask that both you and Mr. Behrens examine this letter, and its attachments, to verify that PHSO identifies no error in the content. If PHSO has any dispute as to the evidence, you should notify me by Thursday 27th May 2021. 

I consider the Board has not fully fulfilled its governance responsibilities. I request your personal final response to be returned by Thursday 10th June 2021 (within 14 days of 27th May)– the precise length of time PHSO required me to respond to one of your draft reports. This should include a response to the letters sent by Ms. Reynolds in October 2020 and 22nd March 2021 on my behalf and which I now submit personally.

Receiving your letters of response as an e mail and/or attachment will suffice.

I ask that you now examine and respond to this letter and the evidence of the attached documents in detail.

Ms. Reynolds, as coordinator of PHSOtheFacts, wrote to the Board in October 2020. The Board did not respond.  Having given the Board ample time to do so, she posted the letter on the group’s website on 15th March 2021.  It has, so far, received 12 comments including one from me. In keeping with this post, Ms. Reynolds also wrote a letter to Elizabeth Davies on 22nd March on behalf of herself and a further 25 individuals. It was this letter that prompted the response from Maria Mansfield.

I appreciate you were recently appointed as Chair of the Audit, Risk and Assurance Committee on 1st March this year. It is important you understand the history of this complex issue. 

On 10th October 2017, Mr. Behrens met some members of our group at Millbank Tower during which he made no comment about “serious and unfounded allegations”. He had only been in post for about six months and there was hope he would recognise and demonstrate understanding of the issues neglected for so long by his predecessor, highlighted in negative reports aired at, and reported by, the Health Select Committee on 23rd January 2015. 

Following the meeting, Ms. Reynolds wrote to Mr. Behrens on 23rd October 2017. The letter was courteous in tone but firm in content, and fairly expressed the consensus of opinion within our group. The letter did not accuse any particular individual of corruption and, from my point of view, reflected the ongoing issues we were encountering as individual complainants.

The Oxford Dictionary definition of corruption is “affect or harm by error or alteration’. Mr. Behrens provided his response to Ms. Reynolds on 22nd November.  Since he wrote the letter, it is clear Mr. Behrens considers Ms. Reynolds “persona non grata”. The section regarding his future relationship with PHSOtheFacts is particularly relevant. 

He had an uncomfortable time when he met the group the previous month and, having attempted to control the meeting with his own agenda, did not seem to positively respond to ours. The subsequent blockage in communication was created by his interpretation of the word ‘corruption’. I used the phrase ‘institutional arrogance” to describe my experience with PHSO in my presentation at the meeting. This was a phrase he seemed to accept. It is to the continued shame of the organisation this arrogance still remains at the highest level.

So what was Mr. Behrens objective in 2017? In my opinion his plan was to get the group together, ‘listen’ to the issues and then find some excuse not to deal with us as a group, and follow a strategy of divide and conquer. This became clearer to me when Mr. Behrens discourteously failed to respond to my letter of 25th November 2017 in which I clarified the position, particularly in relation to the Police response to our meeting with them. 

Mr. Behrens wrote to Sir Bernard Jenkin on 1st February 2018. I ask that you note his comment about a ‘useful meeting’ with PHSOtheFacts, who he had already severed communication with just over eight weeks earlier. The inference is that he found the meeting useful, not from a content point of view, but as an opportunity to disengage.

To this day it remains the position that PHSO staff are considered to be above the law when it comes to the offence of Misconduct in Public Office. Mr. Behrens was incorrect to state allegations of wilful misconduct were rejected by the Police (as he did on page 2 of document 5). The Police position, as conveyed to me in writing at the time, was they had no power to investigate.  There is a vast difference between the two positions articulated by the Police and Mr. Behrens.

It remains the case that any criminal misconduct by a PHSO employee cannot be progressed through the legal system according to the Police. My own case, highlighted at section B of my October 2017 letter, shows how PHSO refused to even hold an internal disciplinary enquiry into non-criminal actions by PHSO staff. The issues were raised with Rebecca Marsh, who at that time, was Executive Director of Operations and Investigations at PHSO and she did nothing. I had given the formal written complaint to Mr. Behrens at the October meeting.

This presents a governance issue for the Board. If the Police have no power to intervene in any activity by PHSO officials that might be criminal or corrupt, how does the Board propose to expand and improve the seemingly lax disciplinary processes existing at PHSO?

I now move forward to the scrutiny session of the 2018-19 PHSO Annual Report by the Public Administration and Constitutional Affairs Committee (PACAC). The public evidence, recorded on the PACAC website, included a submission by Ms. Reynolds (reference HOS008). Her evidence included a serious and well-founded allegation of a major data breach at PHSO of which you will, or should be, fully aware. It is to her credit she did not magnify the breach and submitted her evidence with details of the individuals redacted. You will agree this is the action of a responsible citizen bringing a 

serious failing of PHSO to the notice of the authorities in a responsible way. It is to Mr. Behrens eternal shame he did not acknowledge her contribution with a letter of thanks. 

It is important to understand how her ability to approach Mr. Behrens directly with the information had been compromised by his earlier decision not to communicate.

My evidence to the committee can be found at reference HOS001. I drew attention to the conduct of the PHSO open meeting, which I attended, held in Manchester in October 2019. Delegates to that meeting were invited to submit questions prior to the meeting and assured they would be answered on the PHSO website if time precluded them from being addressed at the meeting. My evidence to PACAC reproduced my questions sent to PHSO in advance regarding Police not having power to investigate Misconduct in Public Office at PHSO. I was not surprised the questions were not allocated for a response at the event. However, the text of my original questions were altered substantially, allowing PHSO to provide an unrelated answer on their webiste.

This raises another governance issue for the Board. If PHSO openly alters the questions asked at a public meeting, how can complainants have confidence their complaints are not altered to suit the PHSO investigation process? The short answer is they can’t and it has been the failure of Mr. Behrens to personally understand the impact of this situation on complainants or his reputation.    

A short exploration of PHSO on Trust Pilot will demonstrate my point. Nearly 60 negative reviews have been posted since January 2020. 

Mr. Behrens wrote to Sir Bernard Jenkin on 5th February 2019 in response to one of the PACAC members, Rupa Huq, raising a point about PHSO failure to publish minutes of Board meetings. Mr. Behrens response was:

“This was an oversight and we are grateful to the Committee for bringing this to our attention. We can assure you that all Board minutes have now been published and we will continue to publish them routinely”.

Less than two years later we find nothing has changed. Publication of the minutes for the December 2020, January and February 2021 meetings were delayed and all promulgated simultaneously at the end of April 2021, just as Parliament went into recess. I personally made two Freedom of Information requests asking for publication. I suspect others did the same and it demonstrates how the failure to publish led to extra work for your Information Rights Officer. 

This is a serious failure of governance by the Board. It is the Board’s responsibility to ensure minutes of its meetings are published. The Board should now question the PHSO executive about the delay, particularly in light of Mr. Behrens response to PACAC in document 8.

Minute 3.1 of the February 2021 meeting will be of particular interest and concern to the public and has already created interest from some politicians and the press.

PHSO admit having 2,600 unallocated health complaints and the Board has approved that there will no longer be full investigations for those where the claimed injustice is at Level 1 or 2 of PHSO’s severity of injustice scale.

The governance issue here relate to: 

The setting of the criteria for level 1 and 2 and is it subject to arbitrary change by the Ombudsman or does it need Board approval? 

What is the policy if complainants disagree with the criteria their complaint is placed in or if they subsequently provide additional evidence?

This is a travesty. Complainants who have waited patiently in the queue for a prolonged period of time are to be ceremoniously dumped. The process smacks of pre-determination and confirms the unaccountability of PHSO. I note that, as I write, two and a half months has passed with no effort made to inform PACAC who should convene to apply scrutiny to this major change.  The Courts have similar issues with a backlog of cases, but there is no suggestion of dumping minor cases of theft for example.

PHSO is in a period of decline and those within the organisation should not be surprised at the sustained valid criticism and occasional satire of which it has become the subject. Mr. Behrens 2018-21 strategy has failed to provide the exemplary Ombudsman service he aspired to.  There is a saying ‘Justice delayed is justice denied’ and the new policy at PHSO can be interpreted as ‘Justice denied is justice denied’

Having approved the strategy of not investigating complaints, the Board has not exercised governance in ensuring Parliament be informed prior to implementing the new arrangements in order for PACAC scrutiny to take place. There is no published evidence to show whether the Board made any risk analysis of how this decision might increase the cases of litigation against the NHS by complainants and the workload of NHS Resolution.

Amanda Amroliwala is recorded as stating, at item 3.6 of the Board minutes dated 30th January 2020, that there remained a small group of vocal and challenging critics who were unlikely to ever be supportive.  

The issue the Board failed to explore, from a governance point of view, is whether the small group has valid and evidenced criticisms. This letter and associated papers demonstrates we do. 

Personally, I have some sympathy for the Ombudsman and the difficult position he finds the service in. The Covid crisis, a budget cut and major relocation have inevitably taken his eye ‘off the ball’.  It remains disappointing he will not constructively engage.

The Ombudsman service was described as ‘not fit for purpose’ in 2015. It lacks robust governance and external scrutiny. The reforms proposed in 2015 were totally inappropriate and the need for a proper Judge led public enquiry into NHS complaint investigations is long overdue.

The bigger picture is that those of us who have become embroiled in this field, PACAC, PHSO, PHSOtheFacts and other complainants all actually want Ombudsman reform. The Board decisions approved on 18th February 2021 will undoubtedly diminish the service further and betray the trust of the public and cause reputational damage to the Ombudsman.

It is disheartening that Michael Gove has no plans to put this reform on the agenda until after 2023-24 and maybe not even then. In the meantime there will more enquiries, with tragic findings, such as those reported by Baroness Cumberlege, Dr. Bill Kircup and Donna Ockenden in the latter half of 2020, coupled with the continued failure of PHSO to meet its raison d’etre.

Yours sincerely

David Czarnetzki 

Posted by recorded delivery 12th May 2021

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