The PHSO at the PACAC: Rob Behrens and the Public Administration Committee

The PHSO at the PACAC: Rob Behrens and the Public Administration Committee

By Lee Marsons

On Tuesday 22^nd January 2019, Rob Behrens, the Parliamentary and Health Service Ombud (‘PHSO’) and Amanda Campbell, the PHSO’s CEO, appeared before the Public Administration and Constitutional Affairs Committee (‘PACAC’) for their periodic interrogation. Watching the evidence session, I found this to be an engaging ninety minutes, not least because it provided early on a vivid example that administrative justice matters to people – not all, not most, but enough people. At 10:05, an MP on the Committee suggested that the PHSO was part of a ‘bureaucratic nightmare’ for members of the public with legitimate grievances against government. This provoked applause in the public gallery, causing the Chair, Sir Bernard Jenkin, to call for order. Modest disorder, perhaps. But enough to remind me, and us, that the matters dealt with by the PHSO and interrogated by PACAC involve real people, real lives, and real grievances (or, at least, should do).

In this post, I will outline what I regard to be six core themes that emerged during the ninety minutes. In order that researchers with specialised interests can navigate the footage, I have indicated timings in my remarks. As I see it, the core themes to emerge were:

1. Transparency and openness;
2. Ineffectiveness of local NHS complaints handling;
3. Peer review of the PHSO;
4. Caseworker training and staff allocation;
5. Collaboration between ombuds and regulators; and
6. Reform of the PHSO

Transparency and openness

Transparency emerged as an important theme in respect of several stakeholders during the hearing; namely, towards individual complainants, subjects of investigations, PHSO staff, members of the public, and ombuds researchers. This makes sense; transparency was one of the objectives in the PHSO’s three-year plan for 2018-21.

• Individual complainants. At 9:57, Behrens argued that the PHSO ‘cannot win trust without transparency’. This was why he had piloted such innovations as the ‘open meeting’ with complainants, where, on his own estimation, he had met with ‘dozens’ of individuals to discuss their cases. In addition, PHSO policy was now that cases should be dealt with by one named caseworker so that it was clear to complainants who had responsibility for their case. Whether this will be sufficient for complainants facing the ‘bureaucratic nightmare’ remains to be seen.

• Subjects of investigations. At 10:20, there was an especially illuminating commentary by Campbell on Miller v Health Service Commissioner [2018] EWCA Civ 144, which UKAJI has previously provided analysis of. It seems that a series of transparency-focused reforms emerged from this judgment. First, the PHSO devised a ‘completely rearticulated’ test to assess the sufficiency of clinical judgment. Specifically, the caseworker must now openly ask clinicians what medical guidelines they used, and assess clinical decisions against those guidelines (as well as taking into account any reasons for deviations). This was to ensure that it was clear what standards the caseworker was applying. (Behrens added at 10:26 that Sir Liam Donaldson had been commissioned to review how the PHSO used clinical evidence.) Second, the PHSO would make clear that any draft or provisional reports published expressly state that the issue has not been predetermined, and clinicians are given an opportunity to respond. At 10:24, Campbell noted that this includes writing to subjects before investigations have been officially commenced and ‘pausing’, so that the clinician is given an opportunity to make initial comments. Third, the PHSO now makes ‘material evidence’ available to the subjects of investigation, so that it is clear what material the caseworker is relying on to make their assessment.

• PHSO staff. At 9:58, Behrens noted that, while putting together the three-year plan, staff at the PHSO had been widely consulted so that they would understand and support the new objectives.

• Members of the public. Similarly, Behrens commented that he had initiated a broader public consultation on the three-year plan. This, he said, was ‘integral’ to the final product. It made the PHSO understand that it should go ‘back to basics’ (in Behrens’ words), so that it was a transparent and ‘outward facing’ organisation. The PHSO also had an ‘ambition’ to publish almost all cases online by 2021, and was in contact with the LGSCO to discuss how that organisation had accomplished this (see 9:57). At 11:18, Behrens also made clear his intention to publish the identities of subjects who had not implemented PHSO recommendations (he disliked the phrase ‘name and shame’), so that the ombud could be held to account for its effectiveness (or not), and subjects of investigations could be held to account for this failure. To Behrens, this was essential to the ‘credibility’ of the PHSO: that it could be publicly seen to produce results.
• At 11:02, Behrens hoped that this enhanced transparency would increase public recognition of the PHSO and the limitations on its jurisdiction. He noted that fewer than 25% of British people had heard of the PHSO, compared to 70% of Austrians who knew of their national ombud. He added that this lack of knowledge often led complainants to believe that the PHSO was ignoring issues, when in fact the issue was simply out of jurisdiction.

• Researchers. At 10:55, Campbell stated the intention of the PHSO to publish simplified versions of all casework decisions so that this information would be available to researchers. At 10:56, she noted that this would be important so that examples of good practice as well as bad practice could be made transparent. Moreover, case data could be used by researchers to investigate whether identified errors existed only in individual cases or more systemically.

Local NHS complaints handling

• At 10:29, Behrens responded with a firm ‘no’ when he was asked whether he considered that local NHS complaints handling had improved in quality. In his meetings with local complaints handlers, he commented that they felt they had insufficient help, resources, status, skills, and training to effectively challenge the decisions of local clinicians. At 10:30, he was clear that ‘this should be a matter of concern for all of us.’ More than this, at 10:34, Behrens suggested that the momentum for substantial local complaints handling reform had ‘fizzled out’, and it ought to be the task of the PHSO to help ‘reignite’ this momentum.
• At 9:59, Behrens made clear that the insufficiency and ineffectiveness of local complaints handling had a significant impact on the workload of the PHSO. He noted that, due to lack of confidence in local procedures, the PHSO received around 120,000 inquiries per year, most of which were premature or out of jurisdiction. For an ‘ombudsman of last resort’, the PHSO was ‘spending too much resource telling people to go elsewhere’, he said.
• Nevertheless, at 10:00, Behrens suggested that there was a ‘seething desire’ in local organisations to improve their complaints handling, of which the PHSO could only be a part. At 10:31, this led to an interesting discussion by Campbell of the PHSO’s aim to set out a ‘single framework’ for local complaints handling, which it would hope to publish by 2021. At 10:32, she called this a ‘good practice framework’, and suggested that it might be developed with the assistance of the Health and Social Care Regulators Forum (more on this in ‘Collaboration’).

Peer review of the PHSO

• At 10:10, Behrens was questioned about the peer review process that the PHSO had undertaken, whereby a group of ombuds experts (Peter Tyndall, Caroline Mitchell, and Chris Gill) were asked to carry out a ‘Value for Money Study’. In Behrens’ view, the outcome of the study was that the PHSO had ‘turned a corner’, but should not be complacent. At 10:17, David Jones MP was concerned that ‘in terms of optics’ it was not acceptable that the PHSO was reviewed by ombuds experts; this could lead to claims that the review was ‘culturally cosy’.
• At 10:16-10:19, Behrens refuted these suggestions on the basis that panel membership was exclusively decided by Tyndall; that the panel had full access to the PHSO’s staff and files; that the panel was staffed by the best available experts; and that it was not a credible suggestion that Tyndall, President of the International Ombudsman Institute, was not independent. At 10:16, Behrens made clear that he did not believe that using management consultants would have produced a more effective review.
• At 10:12, Behrens set out the ‘critical’ operational recommendations of the peer review panel: that he should have less oversight of frontline caseworkers; that there should be improvement to the PHSO IT system (more on this in ‘caseworker training’ below); that caseworker specialisms should not be lost in the move to ‘generic’ caseworker teams; that the PHSO should champion ombuds reform; and that the PHSO should pursue ‘resolution rather than formal adjudication’.
• At 10:13, on the final recommendation, Behrens argued that the PHSO was now focusing on early resolution of grievances through mediation, rather than full adjudication of all cases. In PHSO jargon, this meant moving from ‘adjudication’ and ‘investigation’ of cases, to ‘assessment’ of cases. He also agreed that the peer review process should be repeated on a ‘semi-regular basis’ of every three to three and a half years.

Caseworker training and staff allocation

• At 10:02, Behrens noted that the PHSO had undertaken a significant transformation programme. He recalled that, during his confirmation hearing, he had called this ‘trying to play a piano while pushing it upstairs at the same time’, given that the ombud had to reform its operations while delivering its core services simultaneously. This programme had involved transferring the PHSO’s operations to Manchester, with one hundred caseworker positions transferred. At 10:03, Behrens lamented that experienced caseworkers had been lost in the move, and new graduates from Manchester had to be recruited to work as caseworkers.
• Behrens argued that the PHSO was now placing significant emphasis on caseworker training. Interestingly, at 10:06, he commented on the need to train ‘emotionally intelligent caseworkers’, given that previously PHSO staff had become traumatised as a result of the trauma of complainants. Moreover, this emotional intelligence was needed for caseworkers to recognise that complainant trauma was routine in casework and that complainants should be dealt with as people, not as bureaucratic objects. At 10:07, Behrens noted that Scott Morrish, a complainant whose three-year old son had died from preventable sepsis, would also be directly involved in caseworker training on trauma and emotional intelligence.
• At 11:31, Campbell mentioned several ways that the PHSO kept caseworkers informed and updated on technical knowledge: the appointment of ‘subject matter experts’ as points of contact within the PHSO; the creation of an ‘online repository of technical knowledge’ for health matters; the use of ‘open forums’ where caseworkers could discuss technical issues; and the publication of quarterly and monthly ‘digests’ giving a summary of recent developments in specific fields.
• As a final point, at 10:09 Campbell conceded that, given the time taken out for staff training, in January 2018 the PHSO had a backlog of 2100 cases. However, from the end of October 2018, the backlog had reached ‘frictional levels’; that is, just the amount of work that comes in. For this reason, complainants should expect their case to be allocated to a caseworker within thirty days. At 10:41, Campbell added that the PHSO mantra was now ‘the right decision at the right time’, which involved spending more time upfront to resolve issues without the need for full investigation. At 10:42, she noted that this meant that the average case length was now 154 days.

Collaboration

• At 9:57, Behrens noted that he was having discussions with Michael King, the LGSCO, to develop a policy on transparency of casework.
• At 10:32, Campbell commented that the PHSO would engage with the Health and Social Care Regulators Forum to develop a single good practice framework for local NHS organisations.
• At 10:03, Behrens suggested that, before his tenure, very little contact between domestic and international ombuds occurred, but that this was changing, especially via contact through the International Ombudsman Institute.
• At 10:28, Behrens noted that he was developing a relationship with the Healthcare Safety Investigation Branch (HSIB), a post-2017 Department for Health body concerned with NHS safety investigations, which included periodic meetings, the sharing of information, and understanding common issues that they had in dealing with the NHS. Campbell further commented that the PHSO was drafting a memorandum of understanding with HSIB, so that each organisation could understand and respect their overlapping and distinct roles.

Reform of the PHSO

• At 10:35, Behrens suggested that the PHSO should have the power to establish good practice standards for all public bodies, as the Scottish Public Services Ombudsman is able to do. To Behrens, this would make the PHSO a ‘complaints standards authority’, which, he suggested, would not be resource intensive, but could transform ineffective local complaints handling.
• At 10:50, Behrens made clear his wish to have a ‘power of own initiative’; that is, the ability to initiate an investigation without a complainant coming forward to the PHSO. At 10:51, he stressed that this would not lead to ‘fishing expeditions’ against public bodies, as some cases may be more appropriate for a regulator. At 10:52, he suggested the following factors favourable to an ‘own initiative’ case: it should not be trivial; it should be in the public interest to investigate; the PHSO should have the capacity, skills, and experience to deal with it; it should make a significant difference to the public benefit; and the PHSO should consult with other ombuds and regulators beforehand.
• At 10:52, Behrens suggested that, were the PHSO ever to receive a ‘power of own initiative’, he would use international ombuds contacts at the International Ombudsman Institute to develop guidelines on when this power would be used. He noted that 72% of international ombuds members have such a power. Behrens further suggested that he would contact the Northern Ireland Ombudsman, which had recently initiated its first ‘own initiative’ investigation, to develop these guidelines.
• At 10:46, Behrens suggested that an ‘own initiative’ power may encourage a more ‘strategic’ approach to public service investigation, which the PHSO was already seeking to do as evidenced by its reports on eating disorders, human rights abuses in mental health provision, and the fit and proper person test for NHS directors.

Lee Marsons (@LeeGTMarsons) is a GTA and PhD student at Essex Law School researching in the field of ‘law and emotion’. He also maintains UKAJI’s Twitter account (@uk_aji) and website.