Developing Emotional Intelligence –a Priority for the PHSO?
By Margaret Whalley
Until my brother’s skiing incident in 2011 which led to a complaint about his follow-on care and death circumstances (2012), I admit to having been largely ignorant of the role of the Parliamentary and Health Service Ombudsman.
The Health Service Ombudsman was first established by the Health Service Reorganisation Act 1972 for the purpose of conducting investigations into complaints arising from health services concerning general practitioners, hospital trusts and the staff who are employed by them.
When a complaint is made- say about a failure to provide a service or maladministration- the Ombudsman may choose to investigate. When the Ombudsman chose to investigate my case, I held no preconceptions about the complainant’s journey ahead. I simply hoped, in 2014, that the investigation about to begin would be based on the solid written evidence I had carefully presented and that it would be carried out with integrity and efficiency. Empathy, beyond common courtesy, was not such a high priority for me.
It has taken many years for the PHSO to now accept that their lengthy Final Report, completed and pronounced as ‘robust’ in early 2016, may not be robust, due to PHSO staff service issues. This conclusion was conveyed in the Ombudsman Mr Rob Behrens’ Service review letter in September 2019.
This is sadly ironic. My MP Lisa Nandy and I appealed to the PHSO when it was clear, that documentary evidence I had submitted was being ignored by investigators and advisers alike. The juggernaut could not be stopped and the PHSO drove forward to the completion of their report, despite protest or logic.
Now Ombudsman Mr Behren’s case review letter (September 2019) informs that the PHSO have, ‘identified a significant number of failings in the handling of the original investigation’ and that now, five years after original submission, he is ’proposing to carry out a fresh investigation’.
The first time I heard the Ombudsman refer to ‘emotional intelligence’ was on Tuesday 22 January 2019 at a Public Administration and Constitutional Affairs Committee meeting. My husband and I had travelled from the North West to Parliament to join with others from the phso-thefacts support group. We were passive attendees. We had forwarded submissions ahead of the meeting regarding our experiences with the PHSO.
The then chair, Sir Bernard Jenkin’s written comments included:-
“we have heard from individuals and families who have had existing traumas compounded by an ineffective, inefficient complaints process, at both NHS and PHSO level. Whilst nobody doubts the complex nature of the Ombudsman’s role, there has been a need to rebuild public trust and ensure the service is up to scratch”
During that meeting (2019), Mr Rob Behrens communicated, ‘We have to be more emotionally intelligent to deal with…cases on a daily basis.’
Wondering just what he could mean, I looked up a definition online:-
‘..the capacity to be aware of, control, and express one’s emotions, and to handle interpersonal relationships judiciously and empathetically.’
This suggests that one of the reasons the PHSO believe that complainants may feel frustrated is that there is not enough empathy shown.
Mr Behrens admitted in his Radio Ombudsman podcast (2017) that he needed a workforce comprising of, ‘people who have the emotional intelligence to be able to understand and work with people who are stressed or bereaved in some way’ and conceded, ‘we haven’t been terribly good at that’.
However the PHSO also recognises that cranking up emotional intelligence may bring accusations of bias. A PHSO report into the handling of Mr Nic Harts’ case describes how PHSO has,
‘taken steps to support and challenge all staff members to achieve the right balance between being empathic and acting impartially during the complaint handling process’.
At the outset of my investigation into the care of my vegetative state brother, I had communicated that I wanted, ‘someone with influence to grasp the nettle and discuss futility especially if the patient in the vegetative state appears to be suffering’.
I questioned why ‘vegetative state’ was a term used only twice in the PHSO Final Report (43 pages) and why no standards were provided about relevant care for such vulnerable patients within their Report. The PHSO wrote in their review analysis:-
‘We seem to have been reluctant to use the phrase ‘vegetative state’. ..I wonder if this is because we felt awkward about how to refer to Mr Bowdler’s condition. This was silly if true because Mrs Whalley repeatedly used the phrase in her complaint. Instead we used other phrases – like brain injury- which as Mrs Whalley rightly says, don’t accurately reflect her brother’s condition. ..gives the impression that we downplayed Mr Bowdler’s unique vulnerability. ‘
Is empathy being used here as a scapegoat for poor practice? Is the real culprit lack of scrutiny – deliberate or otherwise?
I and members of the phso-thefacts support group would argue that complainants prize adherence to an investigative approach, with a respect for the evidence submitted, efficiency, fairness, transparency and impartiality above empathy.
Before the release of the Final Report in March 2016, I requested to see the material evidence from which Draft conclusions derived. I was unaware of the internal flurry my request brought. Instead of material evidence, I was provided with unflagged documents, most of which I had originally submitted. Recent review findings show that PHSO staff collectively endorsed a Final report despite the knowledge that conclusions were not based on identifiable evidence. Recently reflecting on this, the PHSO wrote in their review analysis (2019):-
‘It is incredibly difficult for us to defend our findings when we are fundamentally unable to identify and disclose the material evidence we relied on during our investigation. Should we be subject to JR (judicial review) on this case there is a significant risk we would be criticised…it is tricky to say with any certainty what we (and our advisers) did or did not consider…I think the best thing we could have done at that point was to ‘come clean’ (my emphasis)
When public servants collectively decide to do the wrong thing is this collusion? To my mind it is duping and doesn’t chime with, ‘handling interpersonal relationships judiciously and empathetically’.
Since it is for the Ombudsman to decide and explain what standard he or she is going to apply, should the complainant expect empathy when it is discovered there is a woeful lack of material evidence?
As a member of the support group phso-thefacts, I have witnessed over a number of years, the efforts of campaigners holding out in the hope for proper PHSO scrutiny of their case.
The Daily Mail came aware of their plight and commented in 2018 on the time taken to investigate cases.
‘Families are left distressed and traumatised ‘because the NHS watchdog is taking up to three-and-a-half-years to deal with complaints’.
The article also commented on how few cases are actually investigated:-
‘MPs on the public administration select committee found that PHSO was snowed under. Last year it received 31,444 complaints but he only investigated 8,119 of them.’
Honing emotional intelligence skills will not benefit those who brought carefully prepared cases which the PHSO will never investigate. Nor will this placate those left dangling for years awaiting a judgement or a review.
Ms Amanda Campbell CEO ‘recognises in the PHSO Annual Report, ‘how waiting for answers can be stressful for complainants and removing the queue is a significant milestone in improving our service’
Simply removing the queue is not impacting the underlying problem. There are concerns with the treatment people (or their relatives) have received from the health service. Complainants have felt a responsibility to prepare and submit a case for the PHSO to investigate, not for personal gain but purely in order to transmit a message that all is not well. Removing the queue should be achieved by addressing concerns, investigating thoroughly and establishing commonality to provide learning and ensure patient safety. If the PHSO is effective, if health services improve, then fewer will complain and the queue will shorten correspondingly.
In 2018 the PHSO faced accusations of discrimination arising from disability and a failure to make reasonable adjustments for PHSO staff. The tribunal (Miss H Rashid v PHSO) found this, ‘particularly difficult to comprehend’ concluding, ‘It must have been obvious to the respondent that she (the claimant) was being placed at a substantial disadvantage.’
If ‘obvious to the respondent’, this suggests the PHSO had much to learn regarding emotional intelligence.
The following year, the Ombudsman’s Annual Report 2018-2019 CEO Ms Amanda Campbell commented (p8) that management,
‘gave considerable attention to developing a positive working environment in which people can contribute in the best possible way.. ensuring that we operate with integrity, respect and empathy for colleagues,
It appears empathy didn’t translate to action. At the very time these comments were published, unrest was brewing amongst PHSO staff (article by Public and Commercial Services Union):-
‘On 16th October 2019, PCS members working as senior caseworkers, caseworkers and admin voted overwhelmingly for action following a below inflation pay offer. The bosses had made a 2% offer marking the 10th consecutive below inflation (RPI) pay imposition. This left PHSO members worse off each year. It appears management claimed that PCS costings were “unaffordable” despite acknowledging that a just pay rise would only cost £50k. Senior executives at the Ombudsman had been treated differently however, with many getting a 4% pay rise and executive directors receiving bonuses of up to £10,000.
PCS described the PHSO (online article) as employing a, ‘high-handed and dismissive approach to negotiation’. This was ‘followed by attempts to coerce our members into accepting the proposals in our pay ballot and, when this did not work, by attempting to circumvent collective bargaining. When even that did not produce the result and turnout management was expecting, they announced that they were imposing the proposals regardless.’
Was it emotional intelligence which propelled the PHSO management to ultimately improve the offer to 2.5% to PHSO staff (accepted by staff) or was it pressure brought by an outside agency?
Unfortunately for a PHSO complainant there is no agency card to play to help ensure fair play. Mr Scott Morrish (complainant) made just this point in his podcast with the Ombudsman outlining a need for:-
‘a mechanism in place whereby if you reach an impasse as a complainant or as an Ombudsman, you can basically refer that case in full to a third party who can look at it with real objectivity because they have no involvement in it, and no interest in its outcome other than making sure it’s good. And then its analysis can be fed back both to the complainants and also the Ombudsman.
Now, if the Ombudsman is as good as it’s hoping to be, it should be able to see this as belts-and-braces that enshrines its independence and its integrity. And actually it should be big enough and humble enough to accept any criticisms that come back, as long as it is then tasked with correcting any deficiencies.’
Rather than fret about emotional intelligence, it is my view that the PHSO, for the present at least, should leave their emotions at the door, roll up their sleeves and concentrate on the reason for their existence, namely the purpose of conducting investigations with integrity (see section above in bold).
Margaret Whalley – I am a retired teacher who brought a complaint to the PHSOmbudsman following my brother’s death in 2012. I am still awaiting proper scrutiny and resolution. The attached photograph is of my late brother Bob. email@example.com
(I don’t mind any readers contacting me by email)