Evidence for the decision that clinical advisors are 'at risk' from complainants

The request was partially successful.

Dear Parliamentary and Health Service Ombudsman,

The PHSO states that its policy is to keep secret the names of clinical advisor employees as they would be 'at risk' from complainants if they were divulged.

When was this policy decision taken by the PHSO - and on what evidence is it based?

The evidence is crucial, as the policy demeans the character of complainants, by making the assumption that they would attack the PHSO's clinical advisors in some way.

Especially as this policy distinguishes a clinical advisor from any other senior officer case decision maker. For example the legal advisor....whose name is known and is in the annual report.

Obviously if there is no evidence to support this policy - other than an anonymous senior officer decided that complainants are all potential thugs - are their any plans to review this secrecy keeping in mind the governments direction of 'openeness,transparency and candour'?

Yours faithfully,

Jt Oakley

foiofficer, Parliamentary and Health Service Ombudsman

Thank you for your e-mail to the Parliamentary and Health Service
Ombudsman. This return e-mail shows that we have received your
correspondence.

show quoted sections

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legal purposes.
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foiofficer, Parliamentary and Health Service Ombudsman

Dear [first name redacted] Oakley,

 

Thank you for your email of 27 August 2014. In your email you said:

 

‘The PHSO states that its policy is to keep secret the names  of  clinical
advisor employees as they would be 'at risk'  from complainants if they
were divulged.

When was this policy decision taken by the PHSO - and on what evidence is
it based?

The evidence is crucial, as the policy demeans the character of 
complainants, by making the assumption that they would attack the PHSO's
clinical advisors in some way.

Especially as this policy distinguishes a clinical advisor  from any other
senior officer case decision maker. For example  the legal
advisor....whose name is known and is in the annual report.

Obviously if there is no evidence  to support this policy  -  other than
an anonymous senior officer decided that complainants are all potential
thugs - are their any plans to review this secrecy keeping in mind the
governments direction of 'openeness, transparency and candour'?’

 

Having considered your request under the Freedom of Information Act 2000,
I can confirm that we do not hold a policy relating to keeping the names
of our clinical advisers secret.

As we have previously explained to you, historically PHSO has always named
its clinical advisers and provided their qualifications in its final
investigation reports. In cases which were not subject to a statutory
investigation by the Ombudsman (assessments), we usually provided that
information on request unless there were overriding reasons not to. 

As we deliver more investigations for more of our customers in line with
our strategy, it remains the case that we routinely provide our customers
with the qualifications of the clinical advisers who have commented on
their case. We also continue to name them in some of our investigation
reports. However, where they have not been named we would consider a
request for this information on a case by case basis and in line with
information legislation.

 

Yours sincerely

 

Luke Whiting

Head of FOI/DP 

 

From: Jt Oakley [mailto:[FOI #226901 email]]
Sent: 27 August 2014 08:53
To: foiofficer
Subject: Freedom of Information request - Evidence for the decision that
clinical advisors are 'at risk' from complainants

 

Dear Parliamentary and Health Service Ombudsman,

The PHSO states that its policy is to keep secret the names  of  clinical
advisor employees as they would be 'at risk'  from complainants if they
were divulged.

When was this policy decision taken by the PHSO - and on what evidence is
it based?

The evidence is crucial, as the policy demeans the character of 
complainants, by making the assumption that they would attack the PHSO's
clinical advisors in some way.

Especially as this policy distinguishes a clinical advisor  from any other
senior officer case decision maker. For example  the legal
advisor....whose name is known and is in the annual report.

Obviously if there is no evidence  to support this policy  -  other than
an anonymous senior officer decided that complainants are all potential
thugs - are their any plans to review this secrecy keeping in mind the
governments direction of 'openeness,transparency and candour'?

Yours faithfully,

Jt Oakley

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show quoted sections

Dear foiofficer,

CLARIFICATION

Thank you.

But I have looked - in vain - for the term 'final investigation reports', which has somehow crept into your interpretation of my request.

Indeed, as you state, there would be no point in narrowing my request to a term unused in my request, as you have previously provided the very information on 'final investigation reports'.

Please allow me to clarify:

I did not refer to 'final investigation reports' in my request,

I referred to allowing to complainants to know the qualifications of those who sit in judgement of their cases, leading to verdicts of 'no worthwhile outcome', in complete and unchallenged anonymity and leaving complainants with no technical explanation of why their cases have been rejected.

Such clinical advisors as the dentist, who recently resigned after an out-of-court settlement and whose cases the PHSO has no intention of re-opening.

http://www.hamhigh.co.uk/news/disgruntle...

( Presumably rejected complainants were totally unaware of name, or his qualifications, until the PHSO was mentioned in the press account of this recent court case).

However, my understanding from your narrowed reply is that there has never been a board decision on whether clinical advisors should be named to complainant - either before they start, or are proceeding.

Or indeed any formal decision. Let alone one backed by legislation.

And that somehow this questionable policy has been accepted as 'given' for years, without reference - and without question - simply the PHSO fears that complainants 'might' question the qualifications of such advisors, or act 'inappropriately' towards them, without any evidence at all that they might do so.

::::

Since no 'retention of names and qualification policy' exists, I note that you also state:

'We usually provided that information on request unless there were overriding reasons not to'.

My request asked:

'The evidence is crucial, as the policy demeans the character of
complainants, by making the assumption that they would attack the
PHSO's clinical advisors in some way'.

I would like to know what does the PHSO consider these 'overriding reasons' (unspecified in your answer) to be? Because presumably there must be reference to them somewhere.

There must have been recent cases in which these 'overriding reasons' have been stated and which can be provided, as anonymised examples.

Otherwise the criteria for these decisions, must be that the complainant is in someway 'unacceptable' to the case handler, who has logged the complainant's behaviour, drawn conclusions from it - thus defining it, so making a predictive decision as to what the complainant 'might' do.

Clearly this is unacceptable, as case handlers are not trained psychologists.

However, I would therefore like to read some of this evidential decision criteria, as,if the PHSO is still conducting this unwritten, unratified policy - with no intention of reviewing it, in contradiction to political background in which the government requires a philosophy of transparency and openness from its publically-funded organisations - especially in organisations concerned with NHS complaints - there must be strong and coherent reasons for doing so.

In view of the clarification of the terms if my request, could you please therefore re-consider it - without narrowing it to the term of 'final investigation reports'.

Yours sincerely,

Jt Oakley

foiofficer, Parliamentary and Health Service Ombudsman

Thank you for your e-mail to the Parliamentary and Health Service
Ombudsman. This return e-mail shows that we have received your
correspondence.

show quoted sections

All email communications with PHSO pass through the Government Secure
Intranet, and may be automatically logged, monitored and/or recorded for
legal purposes.
The MessageLabs Anti Virus Service is the first managed service to achieve
the CSIA Claims Tested Mark (CCTM Certificate Number 2006/04/0007), the UK
Government quality mark initiative for information security products and
services. For more information about this please visit www.cctmark.gov.uk

Jt Oakley left an annotation ()

D.Speers here: (Sorry Jt its happening again!)
A wise woman once told me:

The PHSO is run as an Inquisitorial European system( keeps evidence secret ) ...but the question about is :
Should the Ombudsman be working under the European justice system, or the British Adversarial one - in the UK?
Surely complainants should have the right for the evidence to be open and be able to challenge inaccuracies? ....That's the British way. It's the way the legal system and Parliament is run... On an adversarial basis.
Or should complainants be forced to accept that the PHSO complaints handlers and anonymous advisors are always right - under a system of justice that is directly oppositional to the one we have in the UK ?

Jt Oakley left an annotation ()

Are you posting as me now Dee?

Never mind, I totally agree with your opinion above.

Jt Oakley left an annotation ()

Referred to the ICO

Call our helpline 0303 123 1113

Report a concern about accessing information from a public body

1. Details of the organisation your concern is about

Organisation: PHSO

Contact name: Steve Brown

Address: The Parliamentary and Health Service Ombudsman

Millbank Tower
Millbank
London

Postcode: SW1P 4QP

Telephone: Tel: 0345 015 4033

Email:

2. Your relationship with the organisation

'Customer', journalist.

3. What is your concern?

Select the option that best describes your concern.

The organisation did not respond to my request.. In part

The organisation sent only some of the information I asked for

yes

Something else. Please give details.

The organisation publically states that it provides details of all its senior officers on its disclosure list - but it fails to do so, while stating to PASC that it is 'transparent and open' in its dealings with NHS complainants.

NHS complainants cannot expect their cases to be judged by clinical advisors with clinical advisors conflicts of interests and qualifications kept secret from complainants.

Complainants should have the right to know who is judging their case if the PHSO's management leaders are stating publically to Parliament that it has improved the transparency in which its cases are run.

If the complainant cannot check that senior staff are sound.. ie...they have no court cases against them, or no outside interests which could affect their case, their only option is to go to Judicial Review after the case has been decided.

This recent case highlights the issue:

http://www.hamhigh.co.uk/news/health/dis...

Disgruntled patient of government dentistry advisor reaches out-of-court settlement
17:00 06 June 2014by Tom Marshall
Richard Jordan
Richard Jordan

A retired phone engineer has received a £15,000 payout after taking legal action against a leading dentist for “ruining” his teeth.

Richard Jordan was a patient for more than 30 years of Dr Howard Myers, a former dentistry adviser to the Parliamentary and Health Service Ombudsman, as well as the Brent and Harrow Health Authority.

Yet Mr Jordan, 65, claims the care provided by Dr Myers at his practice in Golders Green Road, Golders Green, left him unable to eat properly for two years.

The former BT engineer, of Agincourt Road, Gospel Oak, launched a legal claim in 2012 and, after a two-year battle, has finally secured a £15,000 payout in an out-of-court settlement.

He said: “Dr Myers treated me for more than 30 years. My teeth have been ruined and I now need to pay for expensive repeat treatment.

“I didn’t know my oral health was getting worse and I’ve now found out I’ve lost some of the bone in my mouth. Dr Myers left me in the dark.”

Mr Jordan suffers from gum disease and bone loss and faces dental therapy for the rest of his life.

Dr Myers is no longer practicing after voluntarily giving up his registration with the General Dental Council (GDC) in 2012.

At the time, he was due to face 18 allegations of providing poor care at a GDC hearing, following a complaint lodged by Mr Jordan.

Among the allegations, it was said Dr Myers had missed signs of gum disease, failed to diagnose 
infected molars, failed to treat tooth decay and fitted a crown so badly that it caused a fracture.

Dr Myers’ voluntary removal from the dental register resulted in the GDC hearing never taking place, but Mr Jordan was determined to pursue the matter.

Mr Jordan’s solicitor, Heather Williams, from the Dental Law Partnership, said: “Our client will need extensive dental treatment ongoing.”

Please send us copies of:

 your information request; and

 any acknowledgement or other response you have received from the organisation.

From: Jt Oakley

25 May 2014

Dear foiofficer,

From your internal files, it is now my understanding that clinical
advisors come into the senior officer category and therefore the
information on their registered conflicts of interest should have
been given, along with that of directors.

Because, the PHSO's employee Relations Manager states in the
internal file. ' as the clinicians are SA1's and SA3's, they come
into the senior officer bracket' .

In the PHSO's Conflict of Interest policy it states :

'The Register of Interests for Senior Staff is included in the PHSO
publication scheme and is, therefore, openly available' , as JM of
the FoI department states.

The document should spell out exactly what conflicts of interest
clinicians have ..In which areas of expertise and with which health
boards.

I would therefore like to read the register of interests for Senior
Staff for the past five years... Since it is 'openly available '
but not included with this reply..

Yours sincerely,

Jt Oakley

Link to this
Please read both requests - which should be taken in conjunction :

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

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

4. What have you done to raise your concern with the organisation?

See requests:

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

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

Please send copies of any documents you have showing how you raised your concern with the organisation.

5. What did the organisation say?

See above

It is justifiable for senior officers to provide the public with details of their interests -and desirable for them to provide their qualifications, as they make judgements on PHSO medical cases.

The public cannot be expected to accept clinical judgements - without checking the private interests and being provided with the names of those making the judgements before their cases are investigated.

As to the court case above.... The PHSO is not re-investigating the cases in which he made decisions.

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

The PHSO's conflict of interests policy gives no exclusions to any senior staff.

Either the PHSO is misinforming the public, or the FOIA team are mistaken in its diverse response....with one employee stating on record that the register of all senior staff's interests is publically available (and the Conflict of Interests policy stating so), and yet the request reply states that not all senior staff are included.

Logically it cannot be both.

The time element specified in the response for searching fur the information is a red herring.

1. Clinical advisors would have to state any PHSO-external interests and qualifications - on applying for the job.

2. ....Or the PHSO requires no information that might affect the judgement of its future employees on its application forms.

Which would seem to be extremely reckless on the part of the PHSO, since it's cases are open to judicial review.

The required information should therefore be readily available.

Please send copies of any documents you have showing the organisation’s response to your concern.

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

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

6. Reference number

Please tell us any reference number that the organisation has given you, eg account number, policy number etc.

7. Your details

Or, if you’re filling this in on behalf of someone else, put their details here.

Jt oakley

8. Declaration

 I have included all the necessary supporting evidence.

 I understand that the ICO may need to share the information I have provided so they can look into my concern. I have indicated any documents or information that I don’t want the ICO to share.

 The information I have provided is accurate, to the best of my knowledge.

 I understand that the ICO will electronically store the information relating to my concern including the documents I have provided and keep the electronic records for two years, or for longer if it is appropriate. The ICO will destroy the original hard copies after six months.

I agree.

Yes

9. Sending your form to us

By email

1. Fill in this form and save it to your computer.

Open a new email, with ‘Concern about accessing information from a

public body’ in the subject line.

If you have all your supporting documents electronically, attach them to

your email.

Email the completed form to casework@ico.org.uk

By post

If you have only paper copies of any of your supporting documents, print this form and post it with all your supporting documents to:

Customer Contact
Information Commissioner’s Office Wycliffe House
Water Lane
Wilmslow
Cheshire SK9 5AF

page3image7684

Jt Oakley left an annotation ()

Freedom of Information Act 2000 (FOIA) Environmental Information Regulations 2004 (EIR)
Date:
Public Authority: Address:
Complainant: Address:

Decision (including any steps ordered)
1. The complainant has requested information relating to the register of staff interests.
2. The Commissioner’s decision is that the Parliamentary and Health Service Ombudsman does not hold any further information within the scope of the request.
3. The Commissioner does not require any steps to be taken as a result of this decision notice.
Request and response
4. On 15 November 2013, the complainant wrote to the Parliamentary and Health Service Ombudsman (PHSO) and requested information in the following terms:
“Could you please send new an up to date disclosure log if employees interests starting from January 2011.”

5. PHSO responded on 13 December 2013 and refused to provide the requested information. It cited section 12 of the FOIA (cost of compliance) as its basis for doing so.
6. The complainant made a further request on 25 May 2014 in the following terms:
“From your internal files, it is now my understanding that clinical advisors come into the senior officer category and therefore the information on their registered conflicts of interest should have been given, along with that of the directors.
Because, the PHSO’s employee Relations Manager states in the internal file. ‘as the clinicians are SA1’s and SA3’s, they come into the senior officer bracket.’
In the PHSO’s Conflict of Interest policy it states:
‘The Register of Interests for Senior Staff is included in the PHSO publication scheme and is, therefore, openly available’, as JM of the FOI department states.
This document should spell out exactly what conflicts of interest clinicians have...In which areas of expertise and with which health boards.
I would therefore like to read the register of interests for Senior Staff for the past five years... Since it is 'openly available' but not included with this reply”
7. PHSO responded on 25 May 2014 and provided a copy of the clinical advice form and advised that interests of senior managers are declared as part of its Resource Accounts. It also provided a link to its website for previous reports.
8. PHSO further stated that 2013/2014 Directors’ interests would be published shortly and therefore cited section 22 of the FOIA.
9. Following an internal review PHSO wrote to the complainant on 18 August 2014. It stated that it did not hold any further information within the scope of the request.

Scope of the case
10. The complainant contacted the Commissioner on 14 November 2014 to complain about the way her request for information had been handled. The Commissioner considers from the nature of her request of 25 May Freedom of Information Act 2000 (FOIA) Environmental Information Regulations 2004 (EIR)
Date:
Public Authority: Address:
Complainant: Address:

Decision (including any steps ordered)
1. The complainant has requested information relating to the register of staff interests.
2. The Commissioner’s decision is that the Parliamentary and Health Service Ombudsman does not hold any further information within the scope of the request.
3. The Commissioner does not require any steps to be taken as a result of this decision notice.
Request and response
4. On 15 November 2013, the complainant wrote to the Parliamentary and Health Service Ombudsman (PHSO) and requested information in the following terms:
“Could you please send new an up to date disclosure log if employees interests starting from January 2011.”

5. PHSO responded on 13 December 2013 and refused to provide the requested information. It cited section 12 of the FOIA (cost of compliance) as its basis for doing so.
6. The complainant made a further request on 25 May 2014 in the following terms:
“From your internal files, it is now my understanding that clinical advisors come into the senior officer category and therefore the information on their registered conflicts of interest should have been given, along with that of the directors.
Because, the PHSO’s employee Relations Manager states in the internal file. ‘as the clinicians are SA1’s and SA3’s, they come into the senior officer bracket.’
In the PHSO’s Conflict of Interest policy it states:
‘The Register of Interests for Senior Staff is included in the PHSO publication scheme and is, therefore, openly available’, as JM of the FOI department states.
This document should spell out exactly what conflicts of interest clinicians have...In which areas of expertise and with which health boards.
I would therefore like to read the register of interests for Senior Staff for the past five years... Since it is 'openly available' but not included with this reply”
7. PHSO responded on 25 May 2014 and provided a copy of the clinical advice form and advised that interests of senior managers are declared as part of its Resource Accounts. It also provided a link to its website for previous reports.
8. PHSO further stated that 2013/2014 Directors’ interests would be published shortly and therefore cited section 22 of the FOIA.
9. Following an internal review PHSO wrote to the complainant on 18 August 2014. It stated that it did not hold any further information within the scope of the request.

Scope of the case
10. The complainant contacted the Commissioner on 14 November 2014 to complain about the way her request for information had been handled. The Commissioner considers from the nature of her request of 25 May

2014 and the outline of her complaint to him that her issue is specifically about the fact that clinical/nursing advisers should be considered senior members of staff and therefore should fall within the scope of the request.
11. The Commissioner considers the scope of this case to be to determine whether this is in fact the case and also whether the PHSO holds further information falling within the scope of the request which it has not provided to the complainant. As no complaint has been specifically made about the PHSO’s application of section 22 the Commissioner has not investigated or made a decision on this.
Reasons for decision
Section 1(1) – information not held
12. Section 1(1)(a) of the FOIA requires a public authority to inform the complainant in writing whether or not recorded information is held that is relevant to the request. Section 1(1)(b) requires that if the requested information is held by the public authority it must be disclosed to the complainant unless a valid refusal notice has been issued.
13. In scenarios where there is a dispute as to whether a public authority holds any recorded information falling within the scope of a request the Commissioner, following the lead of a number of Information Tribunal decisions, applies the civil standard of the balance of probabilities.
14. In other words, in order to determine such complaints the Commissioner must decide whether on the balance of probabilities a public authority holds any recorded information falling within the scope of a request (or was held at the time of such a request). Without evidence to suggest that PHSO holds further information, this argument cannot carry weight.
15. In correspondence with the Commissioner the complainant explained that she considered there was a contradiction in PHSO statements. The complainant considered that the interests of all senior officers are publically available, or they are not.
16. The Commissioner invited PHSO to review its handling of the request. It became clear at this point the complainant’s concern had been caused in part by a fundamental misunderstanding of who the phrase “senior staff” applies to in its policy and guidance.
17. PHSO went on to explain that the complaint to the Commissioner is, in part, predicated on the fact that its clinical and nursing advisers are senior staff. The complainant has highlighted references in papers

previously provided to her that their pay grades are the same or equivalent of senior staff. It therefore appears that they are or should be included in the information PHSO publishes about the registered interests of senior members of staff.
18. PHSO stated that it uses the phrase “senior staff” to refer to senior managers i.e. staff at the top of the organisation. Although clinical advisers may well be paid at a senior grade (commensurate to their skills and experience in the NHS), they do not have a management role and are not directly responsible for leading the organisation. Clinical advisers provide advice on the clinical and nursing aspects arising in complaints which is then used by PHSO caseworkers and managers in deciding what decisions to make.
19. PHSO acknowledged that there may at times be a conflict of interest, but this is managed and recorded differently. In the first instance, all staff are asked to declare any interests/potential conflicts and this information will then be held on their HR file. However, clinical and nursing advisers all have current or former links to the NHS which means it is more practical to consider a potential conflict on a case by case basis. As such, clinical and nursing advisers also declare interests in relation to the specific case they have been asked to advise on, rather than on a central register.
20. Therefore in response to the request for a register of interests which includes clinical and nursing advisers PHSO has stated that it does not record or include that information in a central register of interests. In addition this is not published because clinical and nursing advisers are not considered to be senior managers.
21. The Commissioner is mindful of the complainant’s genuine reasons for making this request. However, it is clear that the terminology used of “senior staff” is where the problem has arisen.
22. PHSO has explained that pay scales for clinical and nursing advisers may well be the same as “senior staff”, however due to their role of providing advice rather than management responsibilities or leading the organisation, they are not considered to be “senior staff” in the PHSO structure and therefore would not be included in the registers it publishes.
23. Each adviser is asked on a case by case basis if they have any conflict of interest i.e. if they have any links with the organisation being complained about. The adviser completes a form and it remains with the case file.

24. Having considered the response provided by the PHSO the Commissioner is satisfied that the definition of senior staff does not include clinical and nursing staff. He is therefore satisfied that it has provided all the information it does hold about senior staff conflict of interest records or links to it other than that to which it has applied section 22 which the complainant has not complained about.
Other Matters
25. The Commissioner notes that PHSO does hold the ‘building blocks’ to compile a register for all other staff if this information was requested. However in order to be able to provide the information it would need to be extracted from individual HR files and/or complaints case files where it may be in part recorded and then would need to be put into a register.
26. The Commissioner is therefore also mindful that if PHSO were to attempt to compile such a register for the purposes of a response to a request for information, it would be highly likely to invoke section 12 (costs to comply) or section 40(2) (third party personal data) of the FOIA.

Jt Oakley left an annotation ()

Jt Oakley left an annotation (24 March 2015)

The ICO Decision:

The ICO decision says that although the PHSO was stating senior officers conflicts of interests are all publicly available, despite being clinicians having the senior officer pay grade - SA1 -SA3 - they are not, in fact, PHSO senior officers and it was only referring to 'senior staff' , who are also on the same pay grade. They are both internal and external employes are paid up to £106k a year.

An argument which I'm afraid escapes me.

:::.

The PHSO therefore argues the public - the complainants- have no right to know if any of it's clinicians have outside financial interests - such as those of private health companies- which may be in conflict with the assessment of their complaints. Even during a period of NHS using more private health companies.

:::

In a court of law, the public has the right to know who is giving a professional opinion a case, and what his/ her qualifications are, as fairness and openess to each party is inherent in the British system.

Why do the PHSO's clinical experts demand anonymity?

Would they be allowed to remain unnamed and hooded to protect their identities in court?

The questions which need to asked are:

1. Why do their private financial interests need be secret?

2. Are the qualifications of PHSO clinicians so suspect that they may not be divulged?

Fraud:

......A recent fraud case involving a PHSO advisor, who the PHSO presumably similarly screened ......

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

:::

Clearly the complaints system will remain unequal with say, the NHS providing a phalanx of clinical advisors to advise on complainants cases, with the PHSO denying complaints the right to know whether their 'independent?'clinical advisors have financial interests which may directly impact on their case.

Or even of there are any current court cases about them.

If anyone ever disputed the arrogance of the quasi-legal PHSO, it secretiveness in this matter and its contradiction in its 'transparency, openess and candour' statements this a fine demonstration of it.

::

Another PHSO request on clinical advisors:

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

Link to this

J Roberts left an annotation ()

"An argument which I'm afraid escapes me."

It escapes me too, if I consider the best interests of taxpayers and complainants. The PHSO looking at each case assigned to a particular clinical adviser to determine whether there is a conflict of interest does not fill me with confidence. The public cannot know if the PHSO gets it wrong and allows clinical advisers to deal with cases where a conflict of interest arises.

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