Health complaints: learning from ombudsman investigations in practice

Our third guest blogger is Dr Gavin McBurnie. Gavin is an Honorary Research Fellow at Queen Margaret University and a former Director at the Parliamentary and Health Service Ombudsman. Gavin previously qualified as a GP and has also held various Director roles in the National Health Service in England and Scotland. He recently completed a PhD on this topic.

There are a number of truisms in life and sometimes they may even turn out to be true. ‘Yes, I will love you tomorrow’ and maybe they do. ‘The cheque is in the post’ and maybe it arrives. ‘The public-sector ombudsman contributes to system improvement’ and maybe it does. The claim of a dual role for the ombudsman (complaint handler and system improver) is made by academics, although it has been held to be problematic which may explain Gill’s (2012, p.181) finding that the evidence demonstrates a ‘mixed picture of the influence that the ombudsman may have in this area’. One factor that may indicate the potential success of the ombudsman in contributing to system improvement is its relationship with bodies in jurisdiction. This is particularly important where the ombudsman cannot compel compliance from bodies in jurisdiction with their recommendations.

The concept of motivational postures has been identified as a means of assessing the attitudes of people or organisations towards those who have power over them (Braithwaite, 2014) and has been validated in a wide range of diverse spheres including complaints to health ombudsman (Smith-Merry et al., 2017). Five motivational postures have been identified:

  • commitment, where a body recognises the authority of their oversight body,
  • capitulation, where bodies submit to their oversight body through fear of its powers (direct or indirect),
  • disengagement, where bodies consider their oversight body irrelevant,
  • gameplaying, where the body recognises the power of its oversight body but attempts to do their own thing while appearing to comply, and,
  • resistance, where the body demonstrates overt antagonism towards their oversight body.

In most organisations differing motivational postures will coexist and organisations and people can switch motivational postures dependent upon the actions of its oversight body. In the context of health complaint handling, research from Australia identified the existence of three sets of motivational postures exhibited by complaint managers within hospitals in Queensland and New South Wales towards their second-tier complaint organisations, those of commitment, disengagement and resistance (Smith-Merry et al., 2017). For my research I was interested in exploring whether similar findings would be found in Scotland and whether the motivational posture adopted by health boards in Scotland towards investigations by the Scottish Public Services Ombudsman (SPSO) would act as a barrier to learning.  In addition to interviewing seven staff at the SPSO I interviewed 22 staff based in three Scottish health boards. Interviewees represented staff from front line staff to board level, as well as complaints and corporate staff. The one staff group that was underrepresented in the interviews was medical staff.

Research findings – ‘commitment’ and ‘capitulation’

In my research on the motivational postures of three Scottish health boards towards the SPSO’s individual complaint investigations, I found two dominant motivational postures were prevalent: those of capitulation and commitment.

In relation to commitment, several of the health board participants noted the importance of the ombudsman institution, both as an external reviewer and in driving improvement.  While an upheld complaint could upset staff, if used properly, it could still be a source of learning.  This view was, perhaps, best described by one of the health board participants who said that the primary objective for health boards upon receipt of an SPSO report should be “to make the patient, the complainant, whoever it may be, feel better and feel that we’ve properly listened to the recommendations and are acting upon them”.

The other dominant motivational posture voiced by health board participants was that of capitulation. Here, participants used language such as seeing the SPSO as a threat.  Participants often expressed a fear of sanction if they were not seen to comply with the SPSO, the most feared of which related to risks to the health board’s reputation.  Another health board participant commented, “we have to deliver on the recommendations. And, if we don’t, they [the SPSO] don’t close the case, and they write to our Chief Executive, and that comes back to reputational issues.” This alleged fear towards the SPSO lead to some health board participants characterising the SPSO as being like ‘the grim reaper’ or ‘Big Brother’.

The likelihood that the recommendations made by an ombudsman will be implemented with commitment appears to be strongly influenced by a number of factors. Nearly all participants expressed dissatisfaction about the level of communication between them and the SPSO. The lack of communication between SPSO and health boards could leave the health board finding it difficult to respond appropriately to the SPSO. Some interviewees also argued that, on occasions, SPSO recommendations were unclear and did not take into sufficient account either the local and national context in which that health service operates.

I also found that on many occasions, health boards did not fully accept, or had concerns about, the clinical advice received by the SPSO. Disputes over the way ombudsman schemes use clinical advice is not unique to Scotland. In medicine, there can be legitimate differences in clinical judgment but health board participants in my research suggested that the SPSO did not take this sufficiently into account, sometimes over-relying on the clinical opinion of a single external adviser even when health boards provided expert clinical opinion supporting their actions. When this happens, it is likely that an upheld SPSO investigation is unlikely to be fully accepted by health board clinicians.

Going forward – lessons to be learnt

Ultimately, my research found that individuals within health boards would review individual SPSO investigation reports before making a decision on how much they accept. Should they accept the report there would be commitment to implementing the associated recommendations. However, where there was disagreement as to the findings the impetus for compliance would be a sense of capitulation – taking action principally to protect the reputation of the health board.

As stated earlier, the concept of motivational postures has been validated in a diverse range of spheres. It is important to note that the motivational postures that arise are specifically dependent upon the relationship between an oversight body and its bodies in jurisdiction, in this case the SPSO and Scottish health boards. Thus, while the approach can be used to examine the motivational postures that arise in other such power relationships, the motivational postures that are identified may well be different dependent upon the nature of the relationship between the oversight body and its bodies in jurisdiction.

Research on motivational postures suggest that the posture of capitulation can be addressed by oversight bodies. Braithwaite (2014, p917) argues that to ensure greater levels of commitment and lower levels of capitulation, ‘procedural reforms such as dealing with people more fairly, respectfully and openly’ should be implemented. In relation to my research, the SPSO needs to rethink its relationship with Scottish health boards, develop more meaningful ways to communicate with them and manage the concerns health boards may have about the SPSO’s clinical advice and understanding of its specific health context. And to be fair, at the time of the research, a new ombudsman had relatively recently taken up post at the SPSO and health board participants did acknowledge that they had seen some early hopeful signs that this was occurring.

So, back to the truism, an ombudsman may contribute to system improvement through individual complaint handling, but probably less than thought and only if the body in jurisdiction is disposed to agree.

If you are interested in reading Gavin’s PhD thesis in full then you can access it here.


Braithwaite, V. (2014) ‘Defiance and motivational postures’, in Weisburd, D. and Bruinsma, G. (eds.) Encyclopaedia of criminology and criminal justice, New York: Springer Science and Business Media pp.915-925.

Gill, C., (2012) ‘The impact of the Scottish Public Services Ombudsman on administrative decision-making in local authority housing departments’, Journal of Social Welfare and Family Law, 34(2), pp.197-217.

Smith-Merry, J., Walton, M., Healy, J. and Hobbs, C. (2017) ‘Responses by hospital complaints managers to recommendations for systemic reforms by health complaints commissions’, 41(5) Australian Health Review pp.527-532.

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