30 cases of Misconduct in Public Office have now been submitted to the Met Police by the PHSO Pressure Group.
2nd January 2017 Update
The Met Police closed all submitted cases in July 2016 stating that section 15 of the Health Commissioner Act and section 11 of the Parliamentary Commissioner Act prevent the Ombudsman from releasing documents or evidence used as part of an investigation and consequently they were unable to pursue any enquiries. This ‘privacy’ rule effectively places the Ombudsman staff above the law. It will be no surprise to learn that an Ombudsman has never been held to account using the law of misconduct in public office. In October 2016 we had a meeting with the Met Police and put forward our objections to their interpretation of the law. Met Meeting Notes Most notable was the ruling that once the investigation is complete the privacy rule falls away. The Met Police then sought further legal advice and we have yet to hear the outcome.
In the meantime, the Law Commission have released their proposals for reform of the law on misconduct in public office. You can read the full 224 page document here. Law Commission Consultation It would appear that rather than make it easier for the public to use this law for protection against the abuse of power, the proposals, which include providing proof and determining that actions were ‘seriously improper’ before an investigation can commence, will make it far more difficult. You can see our submission to the public consultation here. PHSO Pressure Group submission to the Law Commission and an additional submission which makes it clear that it is the Law Commission’s responsibility to ensure that the law protects the public. Submission to the Law Commission by Daphne Havercroft.
We will continue to push the Met Police for a response and for full investigation into the many reported incidents of abuse of power carried out at PHSO. It is clear that this body, the final arbiter for complainants has been made ‘watertight’ by the establishment it serves. Further updates as and when available.
The legal case against PHSO:
Allegation to the MET of misconduct in Public Office in relation to
The Parliamentary and Health Service Ombudsman
In this year celebrating the 800th anniversary of Magna Carta, we, the undersigned, request a meeting with you to present a dossier of evidence supporting the Allegation set out below that the Parliamentary and Health Service Ombudsman (“Ombudsman”), namely Dame Julie Mellor and her predecessor, Ann Abraham, have or may have committed the Common Law offence of Misconduct in a Public Office as a result of the respective holders of the Office acting, or omitting to act, in a way contrary to their duty and contrary to the Nolan Principles.
We have carefully considered the Authorities and understand the key elements of the offence to be:
A public officer acting as such
Wilfully neglects to perform his duty and/or wilfully misconducts himself
To such a degree as to amount to an abuse of the public’s trust in the office holder
Without reasonable excuse or justification
As a Crown appointment we are fully aware of the seriousness of the Allegation and the political sensitivities and ramifications attaching thereto.
In advice given by David Lock QC regarding holding the Ombudsman to account under the law, he quotes Mrs Justice Andrews DBE who presided over the case of R (on the application of Rapp) v The Parliamentary and Health Service Ombudsman & Anor . Given the discretion of the Ombudsman enshrined in the 1967 act Andrews concluded that;
“It is for the Ombudsman to decide and explain what standard he or she is going to apply in determining whether there was maladministration, whether there was a failure to adhere to that standard, and what the consequences are; that standard will not be interfered with by a court unless it reflects an unreasonable approach. However the court will interfere if the Ombudsman fails to apply the standard that they say they are applying;”
In 2009 the Ombudsman introduced the ‘Principles of Good Administration/Complaint Handling’ as a guide for public bodies and a means of monitoring its own service. They are the standards formally adopted by PHSO and confirmed by advocacy groups.
“These Principles are not a checklist to be applied mechanically. Public bodies should use their judgment in applying the Principles to produce reasonable, fair and proportionate results in all the circumstances of the case. The Ombudsman will adopt a similar approach when considering the standard of complaint handling by public bodies in her jurisdiction.”
It would therefore be logical for a court to hold the Ombudsman to account by the standards they have set themselves, namely the 6 principles of good complaint handling. Our evidence demonstrates widespread breaches in the appointed principles which are repeated and systemic leading us to conclude that these actions have been taken wilfully by members of PHSO staff in lieu of the Ombudsman in order to unfairly close down valid cases and avoid holding public bodies to account. These actions are in breach of Article 6 of the Human Rights Act 1998 and cause significant harm to the public.
We are therefore submitting evidence which demonstrates that Ombudsman personnel, acting as public officers, have wilfully neglected to perform their duty to apply the principles of good administration to such a degree as to amount to an abuse of the public’s trust in the office holders, without reasonable excuse or justification. This is a criminal offence and our evidence demonstrates that the decisions made are ‘irrational’ when measured against the principles of good complaint handling. As with other criminal charges, if ultimately brought by the CPS, it will be for the judge to decide whether there is evidence capable of establishing guilt of the offence and, if so, for the jury to decide whether the offence is proved.
Our evidence represents that from a group of citizens who have come together to form the PHSO Pressure Group, as we have all been failed by all those in authority to date. Our evidence is complimented and reinforced by that contained in the Patient’s Association Report, ‘The people’s Ombudsman – How it failed us’ released in November 2014 PHSO-The-Peoples-Ombudsman-How-it-Failed-us and ‘PHSO, Labyrinth of Bureaucracy released in March 2015. PHSO-Labyrinth-of-Bureaucracy
There is also significant supporting evidence collected by PASC as part of its recent inquiry into the setting up of an independent clinical investigation body. PASC inquiry written evidence
If you would like to join us then please use the following pro-forma to compile your complaint. Demonstrate the ways in which PHSO have breached their own guidelines, the principles of good complaint handling and then contact firstname.lastname@example.org to submit your case. It is important that all complaints are investigated by the same Met Police team and your evidence will be hand delivered to the Special Enquiry Team at the Met Police on the 7th March.
A copy of the 6 Principles of Good Complaint handling for reference:
The Nolan Principles of conduct in public office.
Case studies of Misconduct in Public Office collected by phsothefacts the PHSO Pressure Group: