The building blocks of independence

What do we mean by independence?

“Independence” is not a yes/no consideration; it is simplistic and inaccurate ever to describe someone or their work as either “completely” independent, or as “not at all” independent. Independence occurs along a continuum and can be both actual and perceived.

Actual independence is made up of a multitude of ‘checks and balances’ which must be applied continuously throughout the process of independent review; this is all part of good professional practice. Perceived independence, whilst important, is often used to support an individual’s assessment of the review outcome: ‘it was an independent view if it agreed with my point of view, it was not independent if it didn’t’.

Why does independence matter?

Independence promotes confidence. In matters where judgements are being made, particularly when using public money for review work, it is entirely appropriate to query – and to seek – the independence of those undertaking that work. Particularly, to want confirmation that there is probity and that independent reviewers can exercise judgement without fear or favour. That means two things:

• Independence of activity – that they are free from external control or influence
• Independence of mind – there are good controls to minimise internal bias or subjectivity

What are the limits of independence?

An independent review requires the provision of a highly skilled service, and that service should be remunerated, whether a public, charitable, or private sector body is undertaking the work. Direct payment from the ‘receiver’ to the ‘reviewer’ for an ‘independent’ opinion, is of course, never easy to fully reconcile. The stamp of independence is valuable and there are no doubt cases where a favourable veneer has been either purchased or offered as an
inducement.

And yet we know from our day-to-day lives – if we seek professional advice on our finances, health, or legal matters, we usually pay for an independent, professional opinion. Despite our paying for that opinion, we still have a right to expect the advice to be based on the professional’s best judgement, not simply on what we want to hear. This is why demonstrating and upholding independence by using strict professional and accountable practices, is of paramount importance.

When ‘lack of independence’ is suggested in order to discredit a review, this may be because of the funding flow or conflicts of interest. Looking at both of those:

1. Direct payment funding flow for an independent view

Any funding could be seen as an inducement for an opinion. but it doesn’t follow that zero funding is a more secure alternative. A charity requires revenues to function, particularly if delivering a commissioned service. A charity or company working on a pro bono basis is still engaged in a transaction. Indeed, the point of pro bono work may be to incentivise the client to buy more.

A public sector body reviewing itself might resolve the problematic issue of funding but might introduce another range of inducements such as contract awards, promotions, and, where the NHS is concerned, a considerable amount of organisational politics. Fully impartial insight is difficult if someone is commenting on their own performance or that of their colleagues.

2. Individual conflicts

Individual conflicts must also be managed. This is not only about where someone has worked in the past, but also about their close personal and professional relationships and any opinions they may have stated in the past. The Grenfell Tower Enquiry ended work with both a key expert panel member and the nominated accountancy firm having to stand down, because of conflicts arising from other business and audit relationships. In 2014 Lady Butler-Schloss was also forced to stand down from her role on the Child Abuse Enquiry because of the legacy of the actions of her brother in which a conflict was perceived. Such conflicts, if identified at a late stage, can have the power to completely undermine the integrity of a review.

However, it is still important that an independent review has access to subject matter experts who have a working knowledge of practice. It is key, therefore, to apply strict controls when making independent review panel appointments. In some cases, the expert opinion required can be so super-specialist (only 4 experts in the country, for example) that it is impossible to avoid professional networks. It is in the few cases like this that conflicts must be managed, rather than avoided.

How to improve independence – as projects are delivered

When people seek independence, what they want is a fair and balanced professional judgement, based on reliable evidence, and rational analysis. This requires full attention to all of the following:

Minimising bias and subjectivity: The following are all threats to independence:

• hindsight bias – the tendency to overestimate one’s ability to have foreseen an outcome. “I knew it all along.”
• projection – displacing one’s own feelings onto someone else
• confirmation bias – the tendency to favour information that confirms existing beliefs or values
• selection bias – engaging with people who are not representative of the overall group of interest
• self-serving bias – attributing our successes to our own efforts, and our failures to the actions of others, or external events

Recognising and challenging bias amongst reviewers is crucial and this is done through training, awareness and challenge. It is just as important for independent reviewers to be able to recognise bias in others, for example in discrimination, or in unconscious bias which has impacted patient safety.

• Relationships and conflicts: Conflicts can arise in many forms. For example, if any of the independent reviewers (or close family members) have worked in close association with the client or any close proxy organisations as a person of significant influence, the conflict is probably irreconcilable. Similarly, if a person has expressed a set of views which might compromise independence. In these cases, different
  individuals should ideally be allocated to the review.
• Conflict management: NHS England have issued helpful guidance on managing Conflicts of Interest. Central to the guidance is the principle of total transparency; not declaring conflicts (actual or perceived) can be hugely damaging. Ideally, conflicts should be avoided but if, as above, there is no choice but to use someone on an independent review panel (such as a super-specialist) who might have an actual, potential, or perceived conflict, then managing that conflict appropriately is essential, using the guidance referred to here.
• Checks and balances: Providing judgements based upon solid evidence is the biggest safeguard of independence. Evidence must be triangulated, for example, by combining interview feedback, survey data, documentation and audit information to provide a rounded view. Evidence must be reliable; if it is not, it must be stated as such, or additional work must be done to confirm or discount the reliability of evidence.
• Trust and truth: It is the job of an independent review to take swathes of information (sometimes running to millions of lines) and to evaluate, cross-reference and consolidate all of this into an accessible and reasoned view. Transparency does not mean making interview transcripts, private letters or privileged or supplementary advice freely available to anyone; if this were the case, then no one would want to talk to an independent reviewer openly, as there would be no trust.
• Validation and accountability: No reports should ever be finalised without proper factual accuracy checking having taken place. This includes offering a right of reply on all reports, and Maxwellisation2 on public reports. This is a key moment when people who are receiving a report can identify any issues they see with the basis for the findings. Any changes to the report, along with the rationale for change, should be fully recorded and made available to those who require assurances about changes made.
• The end product: Being particularly critical in a report should not be the only defining factor of independence – but, if there has clearly been a balanced view applied to the review findings, this should be a reasonable indication that independence has been applied. In short, the report should speak for itself.

How to improve independence – overall approaches

In addition to proper professional practice in delivery there are overall actions which support
independence:

• The integrity of advice: Independent reviews can broadly fall into two main categories: audit (assessment) and advice (development). If an independent reviewer (firm or individual) has provided audit or advice services within the last 3-6 years, then there should be significant hesitancy applied in allowing the firm to switch those positions. In FCA regulated firms this is why ‘Chinese Walls’ are implemented and taken seriously, as there is a real risk of failed independence. Often called ‘marking own homework’ this is when a firm provides advice which it then evaluates or judges; either one or the other is usually acceptable on a consecutive basis.
• Commissioning transparency: Frameworks are a transparent route to procurement for the public sector, and they are aimed at ensuring that existing relationships cannot influence key appointments. This means that extensive tests must be met by providers before they can bid for work, and awards should be based upon both a subjective (by the firm) and an objective (by the contract awarding body) assessment of independence. All major independent reviews, particularly developmental well-led reviews, external audits and independent investigations should be centrally commissioned by an impartial body to avoid conflicted relationships, inducements and incentives. ‘Cosy’ relationships should be both avoided and prohibited.
• Funding: Funding arrangements should be carefully considered, and it is far better when the party under investigation is not also the bill-payer. When independent reviews are funded directly by the client (for example by a Trust) there also tends to be a greater involvement of lawyers who are seeking to protect the direct interest of their clients. This is a problem which is increasingly an issue in independent reviews and can lead to months of dispute as the independent reviewer battles to allow the facts to be surfaced without impediment.

In considering how best to structure the commissioning of reviews, dismissing all management consultants as being ‘the problem’ is unhelpful. Previous alternatives such as the Audit Commission were themselves expensive3 to the public purse and were also not subject to competitive pressure (which is both a cost and a quality improvement incentive). The notion that there should be a single state provider of reviews of state activities is very hard to justify in a liberal democracy, today that might include the CQC or HSIB. Skilled management consultants, many of whom have direct experience of working within similar services to those being reviewed, provide expertise as well as choice in the market and this competitiveness, particularly when using frameworks, should drive costs down. Independent and skilled firms, who are able to work at scale, should also reduce the need for expensive, lengthy, public inquiries.

Not all firms providing advice should be FCA or Law Society regulated, but there is benefit to having a professional services ‘umbrella’. Smaller and boutique advisory firms would be helped by demonstrating that they meet certain standards (for non-framework commissions); as it stands, they tend to seek out a range of separate certifications which clients aren’t always familiar with (apart from perhaps ISO certifications of quality or information governance). Some form of accreditation of investigation and review practice would be a
good step.