Rob Behrens CBE: Parliamentary & Health Service Ombudsman
Baines Law – Rob Behrens CBE: Parliamentary & Health Service Ombudsman
The PHSE talks to Baines Law. To listen to this episode please go to the following page on this website: Podcast – Barry Baines
Barry Baines:
Welcome. This is Barry Baines from Baines Law, a legal miscellany, where we regularly podcast about cases and legal issues, as well as talking to professionals and others who have experience of our legal system.
Our guest today was appointed as Parliamentary and Health Service Ombudsman and chair of the organisation on 6th of April 2017. He has considerable experience of investigating allegations of public service failure, and as a result, bringing redress to service users.
His previous roles include Complaints Commissioner at The Bar Standards Board and Independent Adjudicator for Higher Education in England and Wales. He transformed the Office of the Independent Adjudicator into an outstanding ombudsman service by focusing on promoting best practice and providing a more efficient and effective service to complainants.
Following this, he became visiting professor at The University College London Institute for Education and also Chair of the European Network of Ombudsman in Higher Education. He was made a CBE for services to higher education in the New Year’s Honors List, December 2015. He has been instrumental in preparing for ombudsman reform, which aims to create a single, more accessible and modern Public Service Ombudsman, making it easier for people to have their complaints about public services resolved. Above all, he is an avid supporter of Manchester City Football Club. Today, we extend a warm welcome to Rob Behrens.
Well, Rob, thank you very much for joining us as a guest this afternoon. May I ask you first of all about your role as Ombudsman, which is a combined one for complaints of poor service government and public organisations on the one hand, and the NHS on the other. How are each of these accessed by complainants?
Rob Behrens:
Sure. First of all, happy New Year. It’s good to be with you. Thank you for asking me.
I’m the tenth Ombudsman in the United Kingdom. The office was established originally in 1967 as a parliamentary function. The health function was added in later on in 1973. The legislation for each post is different, although it’s pretty similar. There are in fact two offices, which are combined in one role.
The Ombudsman’s function is to call government to account when citizens wish to complain about a service that they’ve received, but there are two big differences between the parliamentary and the health service jurisdiction. First of all, in 1967, the government at the time imposed what was called an MP filter, which meant that to preserve the sovereignty of Parliament, complainants could only come to the ombudsman office complaining about government departments if they went to their MP first. That was put in as a temporary measure, which has never actually been taken away and is a big obstacle to direct access for the citizen to ombudsman services.
That never applied to the Health Service. The mandate in the health function is wider in the sense that since 1996, the Ombudsman has been able to look at the clinical judgment in the Health Service that people have received. Therefore, we need to employ clinicians to advise us on the extent to which there’s been, for example, service failure or avoidable death or something untoward in the health judgements of the clinicians at the time. So they are different, but they’re broadly similar.
Barry Baines:
Thank you. Looking at the parliamentary aspect, do I take it from what you’ve said that you would prefer that the filter of referral via the MP be removed?
Rob Behrens:
Yes. I had an exchange with the chairman of the Public Administration Committee in December about this. The Public Administration Committee has been a very strong supporter for 15 or more years of getting rid of the MP filter, because they believed at the time that it was a block to citizens having access to the ombudsman. Under Bernard Jenkins’ leadership, it was called anachronistic and iniquitous.
The new committee, under the of William Wragg, supports the removal, I think, of the MP filter but wants to ensure that MPs still have the right to assist their citizens, their complainants, where the complainants wished it. I have no problem about that. I think that’s entirely sensible and I understand the constitutional issues, so I don’t think there’s a big disagreement between us about that.
Barry Baines:
Have you any examples where MPs have blocked referral to you?
Rob Behrens:
I’ve got a case which I’m going to publish next week, which is about a very serious failure by one central government department to give a proper service to a citizen. The MP appeared to have held onto that case for a year before it was referred to my office. Now, that’s not really good practice. There are examples of these refusing to forward complaints to me, but the bigger issue, I think (I don’t think that is a very serious issue) and I know this from conversations I’ve had with Windrush victims, is that some citizens feel that MPs are tied into the policy of government and therefore would not be sympathetic to putting a case to my office because it conflicted with the government policy of the day. Now, I think there are elements of truth about that, but the fact that people believe it anyway is a significant issue, which has prevented, in the Windrush rush case, people coming to their MPs and to me.
Barry Baines:
Yes, I can understand that people may see that as a conflict on the part of the MP indeed. Thank you for that.
I wonder if we can turn to your role as Health Service commissioner and complaints against the NHS. I think to some extent there are the same sorts of issues, in that it takes so long to investigate complaints. All regulators have this problem. Now, that’s been impacted badly by the COVID pandemic, and the ability of the regulator to respond to complaints has been equally affected. How are you going to tackle the inevitable backlog that’s arisen in the PSHO.
Rob Behrens:
Well, that’s a good question. I think the first point to make is that where you require frontline delivery organisations to see if they can resolve a case first, which I think is entirely sensible and right, then there will always be a delay in the Ombudsman receiving a complaint and being able to do something about it.
Barry Baines:
It could be years, in fact,
Rob Behrens:
Well, it could be years, but to me it makes perfect sense for complaints to be resolved and addressed at the nearest points of service delivery that we can get, and the Ombudsman should be reserved for more serious or intractable cases. I think that that is entirely right.
Now, what happened in COVID and the pandemic was that we had to close down for three months at the beginning because, first of all, hospitals were in crisis and they closed down their complaints handling teams and put them onto other responsibilities in the pandemic, and they told us that because of the unprecedented situation they were in, they would have to hold back on resolving complaints and giving us information. We understood that and we stopped looking at health issues alone for a three-month period.
But during that time, people were understanding that there was a national crisis and, broadly speaking, they were not hostile to the idea that there should be a pause before complaints were dealt with in the crisis. But the combination of remote working, of hospitals having to deal with the unprecedented situation, has meant that when complaints started to come back, we have, as you say, built up a backlog. That is not in the spirit of effective public administration, because you don’t want to wait two years before your complaint is handled. The point of being a service is that it should be relatively timely. I think our average handling time, in a good year, is around 140 days, which I think is defensible. It could be better.
We thought long and hard about what to do about the backlog in this situation, which rose to over 3,000 cases and meant that people had to wait many months before a case could be allocated to them. We consulted with our ombudsman colleagues in the United Kingdom, and internationally as well. We discovered that most ombudsman services in the UK have a proportionality principle in their regulations, so that they are entitled not to accept less serious cases if they think it’s not fortunate to deal with them or it’s not in the public interest.
Now, for one reason or another, we have not done that. We have accepted all cases that have come in, regardless of the seriousness of them. We had a long and productive debate amongst our case workers and amongst our board, and we came up with a view that, in this situation, we will, for the duration of the pandemic, not accept less serious cases, defined in our published scale of seriousness, which is on our website.
For example, if there’s been a mix up over a GP of appointment or someone has been rude, but not terribly rude, to some patient in a surgery, then what we are saying is that in these circumstances, we need to put our resources into the more serious cases where there’s been a failure of treatment or an unexplained death or something like that. If it doesn’t have a systemic impact on our consideration of COVID issues, we say to people, “We are not going to look at it.” In that way, we have cut down the number of complaints coming to us and we have managed to put a cap, up to now, on the size of the backlog. It’s less than 3,000 cases and going down at the moment. Now, that’s not a guarantee and it’s not ideal, but it works in the sense that we want to put our precious resource into where it’s needed most, the most serious cases.
The other point to make is that we’ve had a reasonably good comprehensive spending review settlement. We are now in a position of being able to recruit more staff in Manchester in the next six months and we can put them directly, when they’re trained, into helping to deal with the backlog as well. If you compare us to other public services, and most have a significant backlog, if you look at the court service for example, or even hospitals, we have managed to deal with this through a pragmatic approach of saying that less serious cases will not, for the moment, be looked at.
Barry Baines:
Thank you, that’s very useful. I mean, you’re quite right what you say about the courts. As I understand it, there’s a backlog of something like 60,000 trials, which is huge. Of course, the health regulators all have backlogs. I say “all”, as far as I know most of them have some, some bigger than others. They all face the same sort of problems and they don’t have a filter either, the threshold is pretty low. Do you think there should be a filter of proportionality?
Rob Behrens:
I want to wait and see what the real impact has as we come out of the pandemic. What I’ve seen so far is that it is sensible, and sensible in public policy terms, to focus your resources on the most serious cases, providing you have an effective way of ensuring that you don’t let things slip. What we do is everything that comes in we look at straight away to see if we can resolve it through, for example, mediation, without it going to investigation. That is a safeguard against ensuring that something doesn’t slip through.
I think the other difficulty, which you’ll understand, is that sometimes cases only become apparently more serious the more you know about them, once you’ve the investigation. You don’t want to rely 100% on the initial judgment that is made if you don’t have the option of something else as well.
Barry Baines:
No, I absolutely agree.
Rob Behrens:
I don’t want to speak for regulators. We’re not a regulator, Barry. We’re an ombudsman service and that makes it different.
Barry Baines:
Yes, I understand that. Thank you.
I’d like to turn now, if I may, to the Venice Principles, which many listeners may not be aware of. As I understand it, they are designed to protect and promote the institution of the ombudsman. Could you say a little bit more about those principles and how they affect your role?
Rob Behrens:
Sure. I mean, it’s not only your listeners that may not know, but in my experience, some government ministers are a bit hazy about what the Venice Principles are. But, basically, they come out of the Venice Commission, which the UK is a member of, it’s part of the Council of Europe. The Venice Commission has, for the last 25-30 years, had a secretariat and a body of experts who have been giving advice to ombudsman services about their relationships with governments in different European countries. They have done this by appointing rapporteurs to go to the country or to call for evidence, to see whether they can resolve apparent disputes between the government and the ombudsman service. That has been there for a long time. There are distinguished rapporteurs who are usually international judges coming from nations. They come up with proposals, which have no coercive force, they’re just in the spirit good practice to try and resolve disputes.
Now, that’s good, but the international ombudsman community, which is constituted in the International Ombudsman Institute, which has 150 members of national institutions across the world, they have pressed for the experience of the Venice Commission to be codified in a way that creates a body of principles to allow people to benchmark themselves against fundamental good practice for ombudsman schemes across the world.
Now, that is a very good idea because I know from my experience that national ombudsman services is different, but there’s not been a lot of work done to define the fundamental sameness of ombudsman schemes. That’s what the 25 Venice Principles do. They say, for example, that the ombudsman should be a public appointment made by fair and open competition. They say that the ombudsman should be appointed by the crown or the president and report to parliament, not to ministers. They set out the terms for the ombudsman to engage with public administration, to ensure that the ombudsman has access to the files of public services and the ability to go and look at the files and to interview anybody who is relevant to an investigation. Critically for me, they say that ombudsmen should have direct access, you shouldn’t have to go through your MP in order to get to the ombudsman. Critically, the principles say that there should be the power of own-investigation for the ombudsman. This is very, very important.
There are groups of people, people with mental health challenges, elderly people, migrants, who will have challenges with public administration, but may not be capable or competent or experienced or confident enough to be able to bring a complaint. In 70% of IOI members, International Ombudsman Institute members, those ombudsmen have the power of own-investigation. They can launch an investigation without getting a complaint and they can look at issues which they believe are compromising effective public policy.
Now, that power exists for some ombudsmen in the United Kingdom, institutions in Northern Ireland and in Wales, but I don’t have it. That means that I can’t, or the ombudsman can’t, investigate things which if had they been looked at quickly could have saved a whole series of lives and misadventures in public administration. I’m thinking of, for example, deaths in mental health institutions. Currently, there’s an inquiry into what’s going on, or what went on, in Essex, where there were multiple deaths. Now, I looked at two of those deaths, but those were the only two families that complained to me. In fact, there were 25 other deaths at the same time, which I would’ve looked at if I’d had the power of own investigation, but I didn’t have it. It went on, and then much later on, this inquiry had been set up.
Similarly, the other example is the Windrush scandal, whereby many Windrush people did not complain to their MPs for the reasons we discussed. If I’d had the power of own-initiative investigation, I could have looked at that some years ago and it might have been resolved by now, one doesn’t know.
The Venice Principles critically important for setting out the core powers and rules for a national ombudsman service. They do say that each nation should decide for itself exactly how those powers should be allocated, but since the UK signed up to the Venice Principles and also to the United Nations General Assembly Declaration. The Venice Principles were adopted in 2019. In 2020, they were adopted by the United Nations General Assembly with the United Kingdom as a co-sponsor of that adoption. They don’t just apply to Europe, they apply across the world. They constitute the only benchmark that we have for an ombudsman service as the national body.
Barry Baines:
I’m thinking straightaway about the Public Service Ombudsman Bill as a result of that, which is in draft and which has been hanging around a long time. If that was implemented, would that assist you?
Rob Behrens:
Well, I mean, that is dead in the water. I should live so long, as they say in places that I’ve been. This was a full determination of government following years of research and debate in 2015/2016. They committed to it. Some of the things that we wanted were in that Bill. For example, we have a fragmented ombudsman system in the UK, we don’t have a Public Service Ombudsman, we divide local government from health, from prisons, from homes, from higher education. We’ve got more ombudsmen than any other country in Europe, I think. That means that people don’t understand where they have to go when they want to make a complaint. That would’ve been delivered by the Public Service Ombudsman Bill. They also committed to getting rid of the MP filter at the time, but by the veto of one Cabinet minister at the time in 2016, and I know this from inside information and I can’t name the Cabinet minister, that person had a veto, and while everyone else supported own initiative investigations, it wasn’t introduced because of the veto of one Cabinet minister.
But it’s dead now, it’s finished. It’s not powerful enough, it’s no longer relevant. It needs rethinking, we’re going to have to start again.
Barry Baines:
Who exactly will start again, do you think?
Rob Behrens:
Well, it’s a very good question. I mean, constitutionally, it’s the responsibility of the Cabinet Office to construct the legislation. We know from the time when Michael Gove was in charge of the Cabinet Office, that they have decided, they told us finally, that they wouldn’t contemplate new legislation until 2024. They said instead of doing that they would think about incremental changes, bringing about some of the things we wanted, and none of those have transpired at all.
Barry Baines:
Okay, thank you very much.
I wonder now if we could turn to the Health and Care Bill, which is currently going through Parliament, specifically with the Venice Principles in mind. The provisions of this bill create what’s described as a safe space for investigations to be conducted by the Health Service Safety Investigations Body so that NHS staff and other medical professionals may speak freely during the course of an investigation. Would you say those safe space provisions, as currently drafted, aid or inhibit your role as ombudsman?
Rob Behrens:
Well, first of all, I have a good relationship with the people who work in HSSIB, the body that is responsible for looking at patient safety investigations, it’s not an interpersonal issue. But secondly, the bill drives the coach and horses through both the Venice Principles and our ability to have a direct relationship with people who are involved in serious incidents, and that is a serious impediment to the operation of my office. It’s a dilution of the powers that the ombudsman has had since 1967, and it’s unacceptable.
Barry Baines:
Do you understand why that provision may be there in those circumstances?
Rob Behrens:
Yeah, because I’m not an ideologue and public policy is about debating difficult issues and coming to a reasonable view. But the issue for me is that, as one of the rapporteurs from Scandinavia said in the Venice Commission when it was debated, that this was brought about, this Bill was brought about, without even a consideration of the impact that it would have on the ombudsman service. It was argued, without any research, that it would have no impact on the powers of my office. Yet, that is demonstrably not the case. If it had been looked at rigorously and in an evidence-based fashion, then there could have been a reasonable debate about the challenge of creating a safe space, which carries a public confidence, but that has never taken place.
I don’t doubt the integrity of those people who argue that clinicians should have the opportunity to disclose what really happened in serious incidents, and I have great respect for clinicians who have done that and have been whistleblowers, for example, that’s a very unpleasant experience, and we need to find more rational ways of doing it.
Barry Baines:
Yes.
Rob Behrens:
But to exclude the ombudsman, who has specific responsibility for HSSIB, which is a body in jurisdiction, means that we cannot properly carry out our function because we are dependent from the Bill in permission of the High Court to go into cases that HSSIB is looking at.
Now, I have two comments to make about that. First of all, since the foundation of the Ombudsman, we’ve always had the power of the High Court to go into any area of public administration. That is clearly a limitation on our power and it means that a body that was set up to be a non-legal approach to dispute resolution has to become involved in a judicial challenge if it wants to get into the safe space. I have been on the receiving end of judges in the High Court and the Court of Appeal who told me time and again that we don’t want to judicialise the Ombudsman service, that the courts are not the place to litigate complaints, and yet, what the government is doing with this piece of legislation is saying to us if we want to get into the safe space, then we have to go the High Court and get their permission.
Incidentally, it’s not an exclusive safe space because coroners will have access to it. The Ministry of Justice has insisted that coroners have access to the safe space, but the Cabinet Office has not insisted that the ombudsman has access to the safe space.
Barry Baines:
Of course, if you’ve got to go to the courts, there will be delays and huge public expense.
Rob Behrens:
That’s absolutely right. We know that one of the reasons why the ombudsman service is attractive to people, and we obtain compensation or redress for people to the tune of about half a million pounds a year, that’s just on the financial side, but we know that you don’t pay to go to an ombudsman, it’s an entirely free service. That makes it very different from the courts, where everything has a cost. It’s not good, but we’re not lying down over this and the story is not yet over.
Barry Baines:
I wish you well with it, because the Venice Commission has in fact given a unanimous opinion that this is a violation of its principles.
Rob Behrens:
They did. They came out with a coruscating criticism of the government for not thinking carefully enough about the issue. The government has not, so far, responded in a way to suggest they’re taking that judgment seriously.
Barry Baines:
Do you think there’s any real chance that they’re likely to change their stance?
Rob Behrens:
You know, as a Manchester City supporter, over 40 years of not winning, I never give up hope. I always think we might win next time.
There is a lot of interest in the Venice Commission opinion in the House of Lords. There will be, we think, an amendment tabled to the Bill in the next couple of months to test whether or not the government has got this right. I’m not expressing confidence or lack of confidence, but we’re not giving up on it and we need to make people understand that we have not stood idly by in allowing this to happen.
It was me that took this to the Venice Commission, it wasn’t the Venice Commission that came to me. They undertook it, and they gave us a very hard time in terms of making sure they understood our position. They didn’t just take what we said for granted, I had to appear before very senior judges and defend our position. In the end, it’s very gratifying that they came out so strongly in favour of the Ombudsman.
Barry Baines:
Well, as a Chelsea supporter who’s seen the ups and downs in exactly the same way, I can absolutely agree with your philosophy. I wish you well in your efforts to get this resolved. Rob, thank you so much for joining us this afternoon. It’s been great to hear what you’ve had to say and I’m sure our listeners will be so much better informed as a result. Thank you so much.
Rob Behrens:
Thank you very much, indeed. I’ve enjoyed it.
Barry Baines:
Thank you for listening to Baines Law. Listen out for future podcasts, where we will continue to discuss issues of interest to the legal community. If there is a professional perspective that you would like to share, get in touch via our website at www.barrybaines.com. You can also follow us on Twitter @BainesLaw. We look forward to presenting to you again very soon on Baines Law.