Complaint procedures. Tom McFarlane.
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This is an important subject, both for the exam and for professional practice.
The NHS is often accused of "closing ranks" and being obstructive in the face of complaints.
Be sure to be honest and open.
This is particularly difficult if the complaint is against you, but being defensive, evasive and seeking to exculpate yourself will just heighten suspicion.
Don't give opinions even if you think you know all the facts.
It is for a complaints manager to collate all the data and the chief executive to give a response.
Abbreviations.
| CA | Citizens Advice. |
| CCG | Clinical Commissioning Group. |
|
|
|
|
|
Care Quality Commission. |
| DOH: | Department of Health. |
|
|
General Medical Council. |
| HW | Healthwatch. |
|
|
Independent Complaints
Advocacy Service. |
| IPR: | Independent Professional
Review. |
|
|
|
| NHSAC: | NHSR's 'Advice for Claimants'. |
| NHSCA: | NHS Complaints Advocacy. |
| NHSCP | NHS Complaints Policy. |
| NHSLA: | NHS Litigation Authority. |
| NHSR: | NHS Resolution - the NHSLA became the NHSR in 2017. |
|
|
|
|
|
Patient Advice and Liaison Service. |
|
|
Primary Care Trust. |
| POhWER: |
It began as a local advocacy service in that area; now it has gone national. Another information gem for the cocktail circuit! |
| seAp: | Support Empower Advocate Promote. |
| VA | VoiceAbility |
e
Healthwatch
advice for the complainant
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Introduction.
This has featured in the MRCOG OSCEs, particularly as part of a role-play.
But it would make a very intereting 'structured discussion'.
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Taking a positive view of
complaints:
We don't like complaints.
It is like people saying that they don't like you and none of us likes rejection.
But the NHS is trying to educate us to value them as a useful contribution to improving services.
Although this requires saint-like properties when the
complaint is unjustified and against you!
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Patients or someone on their behalf, e.g.
if the complaint relates to a child,
for someone who lacks capacity,
or someone who has died.
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Is there a
time-limit for making a complaint?
Usually 12 months.
There are different timescales for suing for personal injury or damage from negligence.
These are 3 years and 6 years.
The timescale for obstetric injury is 21 years.
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To whom should the
complaint be made?
Any member of Trust staff or to the commissioning CCG.
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The NHS complaints procedure in a
nutshell.
NHS complaint procedures changed significantly in 2009.
The new system has two tiers:
including clinical matters
·
There is a similar system for General Practice.
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This means getting complaints sorted out via the mechanisms within the Trust.
The hope is that the vast majority of complaints will be dealt with in this way.
The Chief Executive has ultimate responsibility for complaints.
A complaints manager must be in post to run the system & investigate complaints.
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"PALS", the Patient Advice and Liaison Service is the in-house, support scheme.
Its main weakness is that it is run by staff belonging to the Trust.
Some patients may not trust it because of perceived lack of
independence.
It used to be called "ICAS", the "Independent Complaints Advocacy Service" and you may find this in some of the older books.
Then it changed from ICAS to NHSCA which seemed to me to be symptomatic of bureaucrats finding things to do to justify their existence and coming up with daft ideas.
The whole idea of ICAS is that it is independent of the NHS and its name should reflect this.
So some idiot changes it to "NHS Complaints Agency" and the key feature of independence has been eliminated from the name!!
I wonder how many people sat in committees deciding on this new name, how many hours were devoted to the dicussion and how many trees were felled for the necessary papers!
NHSCA has now been dumped.
Independent advocacy has now become the responsibility of local government.
It is paid for by local government but run by independent charities and organisations such as POhWER, seAp and VA.
There are organisations whose names suggest that they can help:
Citizens Advice,
Healthwatch,
Patients Association.
They provide advice about services, including complaints.
They discuss improvements to services with local and national NHS organisations
But they don't come along with a patient to meetings or act for them in making a complaint.
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The second level if local
resolution fails.
Health Service Ombudsman.
A complainant can complain to the Parliamentary and Health Service Ombudsman.
This is the second level of the complaints procedure.
And only applicable when local resolution has failed.
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You could apply to the courts for a judicial-review.
I have not heard of this being done.
It would be prohibitively expensive for most people.
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A complainant may request that their MP look into the case.
This can cause the Trust a lot of hassle.
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You might think that this would support the complainant.
But it is purely advisory.
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You might think that this would support the complainant.
But it is purely advisory.
Its job is to try to make government departments aware of the views of the people.
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You might think that this would support the complainant.
However, its role is to make representations about issues, not assist individual complainants with their complaints.
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Complainant may complain to the GMC about a doctor.
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Complainant may take legal action.
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Newspapers and television and radio programmes love a medical
story.
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Expanded explanation for the MRCOG and
to help facts stick.
The "Key Facts for the DRCOG" section is the essence of what you need to know.
The following "fleshes out" the detail.
Things changed a lot in 2009.
I have given a bit of the history so that you will understand what has changed.
And be able to spot out-of-date stuff in other articles or books that
you are using.
One's natural instinct is not to help anyone making a complaint.
Especially if we are the focus of the complaint!
Why give them sticks with which to beat you?
However, we must put your human frailties behind
us and act professionally.
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Do you need more
information than is in this document?
As you go through this document, especially the web page version, you will find links to external sites.
Some of them are just one page and give useful summaries.
E.g. the links to PALS and NHSCA.
Some of the links may be useful to pad out the information on this web page.
This will particularly apply to doctors who have not worked in the NHS.
However, this document is designed to give you all the information you need.
Don't spend days
wading through the external sites.
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Additional
sources of information:
If you must, have a look at
these, but it should not be necessary if you absorb the rest of this document.
CAB advice on complaints.
NHS advice on how to complain.
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Complaint-handling as part of clinical governance.
When I was Medical Director of our Trust a regular feature on the Trust Board agendas for their meetings was a summary of complaints and legal cases.
It may seem negative, but real problems will often show up in complaints.
And most patients only complain to ensure that what happened to them does not happen to anyone else.
They are not looking for compensation.
There are similarities with patient satisfaction surveys.
We read them to hear how wonderful we are: heroic doctors and angelic midwives and nurses.
But it does not achieve much.
Far better to look at the criticisms.
Therein lie the problems you can learn from and do something about.
I well remember a satisfaction survey in our maternity department.
Most of it was plaudits.
But one woman complained about being separated from her husband as soon as she was admitted in labour.
This intrigued me and I asked the midwives what she was talking about.
It emerged that the policy was that the woman was taken into an admission room near the front door of the hospital as soon as she arrived.
The husband came too.
When it was established that she was in labour, she was transferred to the labour ward on the floor above by lift.
But the husband had to travel in a different lift.
And when he got to the labour ward it took some time to be re-united with his wife.
I asked what on earth the reason was for this bizarre behaviour and was told that it was policy.
And had been since time immemorial.
I struggled to work out what this was all about.
And then I remembered that when I first started in the hospital as a consultant, the labour ward was divided in two parts by a corridor.
The corridor separated the 'sterile' area from the 'non-sterile' area.
The delivery rooms were in the sterile area.
The whole concept echoed the terror that gripped maternity hospitals in ancient times in relation to puerperal fever.
It is fascinating that the massive seriousness of puerperal fever and consequent dread live on as a kind of organisational memory.
See Semmelweis, MCQ 10, question 16.
But it is also salutary to remember that sepsis returned as the major cause of maternal mortality in the 2006-8 Maternal Mortality Report.
Back to my example.
Each section of the labour ward had its own lift.
This made it possible for the woman to be sent in one lift to the sterile area while her husband went to the non-sterile.
The woman was put in a hospital gown on arrival.
This was enough to make it OK for her to be admitted to the sterile part.
The poor husband was not allowed in until he donned gown, hat, mask and overshoes.
Why he could not get these in the admission room and stay with his wife was not clear!
Anyway, the whole of this supposed sterile policy had been junked.
Shortly after I arrived I spoke to Tom Brogan, the Bacteriologist, as I thought it was nonsense.
Tom was old and wise and with a wry sense of humour - a delightful colleague who talked good sense.
He agreed that the whole policy was ridiculous and to get rid of the forced separation, gowns, hats etc.
Good basic hygiene was what was needed, not daft policies.
The labour ward was updated immediately, years before the satisfaction survey, but the admissions policy had been overlooked.
Mystery solved and a good example that hospital rituals can
outlive their usefulness.
We will never come to love complaints.
But we should value them as having the potential to identify
problems that need remedies.
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The need for truthfulness,
impartiality, honesty and other saintly qualities .
The patient is entitled to complete, true and impartial advice.
If you appear to be 'economical with the truth', a political euphemism for telling lies, or just evasive, the patient will see you as dishonest.
This means that when you try to explain difficult facts, like what happened, they will not believe a word.
Indeed, finding you dishonest may reinforce their
belief that the complaint is valid and persuade them that you are a dodgy
doctor and should be punished.
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Trusts and staff taking
defensive stances.
Many people suspect that hospital staff close ranks and will do anything to make a complaint go away.
To close ranks is another phrase from the military and it means a group of soldiers coming closer together to create a defensive formation.
My friend Stuart, an expert on the battle of Waterloo, when Napoloon came a cropper, and the Scottish regiments who took part, tells me that it was a particular strength of the British army and greatly helped them in resisting the French hordes.
Exactly what the complainant fears may happen to them!
So you must avoid anything that could heighten this suspicion.
If you are completely open and give them all the information they need, they will see that you are an honest person.
The will make dealing with the complaint much easier and more
likely to be satisfactory to all parties.
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Major changes were made to the complaints procedures in the early 2000s and again in 2006 and 2009.
Before these changes complaint procedures were seen to give too much power to Trusts.
A Trust had a local mechanism to deal with complaints.
If this did not resolve matters, the Trust could arrange an Independent Professional Review.
This brought in outside experts to assess the complaint and the Trust was bound by its findings..
But it was for the Trust to decide whether or not to have an IPR and the complainant had no rights in the matter.
This was obviously unfair as Trusts might be inclined to refuse IPRs they thought they would lose. .
The need for change was outlined in the DOH document: NHS Complaints Reform. Making Things Right in 2001.
You don't need to read it!
Hospitals were instructed to establish a PALS to provide patients with support and assistance by 2002.
This was strengthened by the creation of ICAS, now NHSCA.
The second tier of the complaints procedure ahanged again with IPRs being aboloshed.
If local resolution failed, patients could request review by the Healthcare Commissionhe
This was an independent body which took over the process of IPR to make it fairer by being genuinely independent.
But the Healthcare Commission and its successor, the Care Quality Commission were removed from the process.
The second stage of the complaints procedure was changed to referral to the Ombudsman.
I think this was a retrograde step as I feel that the Ombudsman has less power to make Trusts provide remedies, but there does not seem to be much push for change.
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Summary of the new system and how things
have changed.
Complaint procedures changed to the latest version in 2009
and there have been minor changes since.
The old system
had three tiers:
·
The new system
has two tiers:
·
You will notice that the Healthcare Commission no longer features.
It was abolished in 2009.
The Care Quality Commission which replaced it does not deal with complaints.
Instead, the Ombudsman has taken on the
role of providing a second tier to the complaints procedures.
The Ombudsman can try to shame Trusts into behaving correctly, but it can't order them to do so.
The other main changes were those mentioned above about
time-scales and when a complaint can be treated as informal.
In a role-play, you would only mention the new system.
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Who is responsible for
overseeing arrangements within Trusts?
The Chief Executive is responsible for the management of complaints - a sign that the matter is treated seriously.
The handling and investigation will be done by a complaints
officer.
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Patients or someone on their behalf, e.g.
if the complaint relates to a child,
someone who lacks capacity,
or someone who has died.
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To whom should the
complaint be made?
Any member of the Trust staff or the CCG.
For those not familiar with CCGs, commissioning and providing etc., read on.
In the old days each area had a health authority.
Each year it got a dollop of money related to the population size, mix of ages etc.
It then decided how to spend it and ran the services.
Mrs Thatcher decided that competition was needed to drive greater efficiency.
Each area got a body to which the money was given and responsibility for how it should be spent.
But it did not provide any services.
It was a purchaser or commissioner of services.
Services were provided by providers, such as hospitals.
The idea was that purchasers were free to buy services from any provider, not just the local hospital.
The purchasers were called PCTs.
They became CCGs in 2013 and are responsible
for about 60% of the total NHS budget.
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Are all complaints to be
treated in a formal way?
A complaint made to a member of front-line staff, e.g. a nurse may be resolved there and then.
If the complainant is satisfied, the complaint can be treated as informal.
And there is no need for further action such as formal documentation, though I think there is always sense in making a note of what happened.
Staff need to use their judgement about what is serious enough to need formal treatment
An obvious example being an issue that might impact on patient or staff safety.
A verbal complaint that is resolved within 24 hours will usually be treated as informal.
Complaints received by letter or e-mail must be treated as formal.
In the DOH document: Clarification of the Complaints Regulations 2009, common sense rules.
It states:
We expect PALS (and others) to apply common sense
and to use their judgment in deciding whether they are dealing with a complaint or not.
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All formal complaints must be documented.
As noted below, Trusts must compile annual reports.
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Is there a time limit on
complaints?
The complaint must be made within:
12 months of the occurrence of the thing being complained about
or when the complainant first became aware of it.
If there are reasonable grounds for the complaint not being
made within this time limit, Trusts are encouraged to investigate the complaint
as it would others.
There are different timescales for suing for personal injury or damage from negligence.
These are 3 years and 6 years.
The timescale for obstetric injury is 21 years.
A child cannot make a claim until they are 18 years old and no longer a child.
Any claim must come in the next three years.
You don't need the details apart from complaint and legal timescales being different and obstetric ones being longer.
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Time-scale for
responding to complaints.
The complainant must be:
contacted within 3 working days
and offered an opportunity to discuss how the complaint will be handled.
A timescale for a response to the complaint should be agreed
The complainant must be told of the reasons if the response cannot be completed in this time.
If a response is not possible within 40 working days, an update on progress should be given every 10 working days..
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Once the complaint has been investigated, the complainant must get a sign-off letter.
This tells how the complaint has been dealt with.
And must include a copy of any report that has been written.
The Trust must explain what actions it intends to take.
The letter will usually be from the Chief Executive.
But can be from someone to whom the Chief Executive has
delegated responsibility.
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How does the Trust
ensure that lessons are learned?
Someone has to be given responsibility to ensure that lessons are learned.
This has to be someone senior for them to have the necessary clout.
Trusts must produce annual reports:
giving details of all complaints,
how rapidly they were resolved,
how many went to the Ombudsman etc.
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Assistance for the
complainant: PALS,ICAS & NHSCA.
The NHS Plan was introduced in 2000 and PALS in 2002, with every Trust having to provide one..
PALS staff provide patients with:
information about services
where best to get treatment for specific conditions etc.
and they can play a part in resolving complaints
by talking things over with patients,
explaining things,
arranging
meetings with consultants etc.
Formal complaints are dealt with by the complaints manager, who is a Trust employee.
A patient wishing to complain will be put in touch with the complaints manager.
And should be offered support from PALS & ICAS / NHSCA.
ICAS is now NHSCA.
Some patients may be suspicious of PALS, as it is provided by the Trust and provide more clearly independent support.
Local Authorities have had a legal duty to provide independent advocacy services since 2013.
They provide support for people making, or just thinking about making, a complaint about their NHS care.
But the service is provided by three organisations that are not part of the NHS or the Local Authority:
the Carers Federation,
and SEAP.
Healthwatch, the Local Authority and Citizens Advice provide information about which organisation provides ICAS in the local area.
NHSCA functions independently of the NHS, the service being bought from non-NHS organisations..
The staff of these bodies are not NHS employees.
They will provide support such as discussing a problem and its possible solutions.
They could accompany a patient to a
meeting with a complaints manager.
Keeping these people separate from the NHS is intended to prevent clashes of interest
Would an NHS employee acting on behalf of a complainant ever
be compromised in their dealings with the NHS?
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It is hoped that most problems will be solved at local level.
This may be PALS staff or the complaints manager clearing up some confusion or misunderstanding.
It could be the result of the complainant meeting with the
consultant / head of midwifery etc.
If local resolution fails,
the complainant must be informed of the second level of the complaints procedure:
i.e. referral to the Ombudsman.
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The next section is what used to apply to the Ombudsman to
give you a flavour of their traditional role and how things changed radically in
April 2009.
I think it may help you to understand the current situation
if you know a bit about the history.
Note that the Ombudsman originally just dealt with the processes involved:
her job was to ensure that the administration of the complaint had been correct.
she made no judgement about clinical matters
whether the complaint was justified
whether errors had been made etc.
but, from the 1st. April 2009, she has made judgements
about clinical matters too.
The following is what I originally wrote.
There is a lot of misunderstanding about the role of the Ombudsman.
The usual misconception is that she is some kind of super-judge who will make a final decision about whether the complaint is valid or not.
In fact, the ombudsman makes judgements about whether an organisation handled a case properly.
It is about the administrative processes.
So, she might say that
the Trust did not follow standard procedures for dealing with the complaint,
there were unacceptable time delays,
the staff were rude and intimidating and so on.
She will not say that the baby came to harm because the CTG was abnormal at 14.00 hours.
Or the Caesarean section was unwisely delayed until 18.00.
This might make the Ombudsman seem fairly toothless and useless.
But she can put a lot of pressure on the Trust to make it do what she wants.
And she publishes an annual report.
To be named in it is a huge embarrassment for a Trust and a humiliation for its senior managers.
They definitely do not want that on their curricula vitae!
The Ombudsman since
1st. April 2009.
The Ombudsman now takes on clinical issues as well.
She will say that the CTG was abnormal at 14.00 hours.
And that staff were slow to act upon the findings to the possible detriment of the baby.
This is a radical change, but she has not been given additional teeth.
She cannot make a Trust pay compensation, fire the doctor involved etc.
She can recommend that the Trust look again at the problem, pay compensation etc.
But the Trust can ignore her, though this is unlikely and some sort of compromise will be agreed.
She would be likely also to provide some recommendations about the problem could be avoided in the future.
An obvious example being improved staff training.
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You could apply to the courts for a judicial review.
I have not heard of this being done, but I am no legal expert.
Public bodies, including Trusts, are subject to this review process:
if they fail to act when they are supposed to do so,
take actions that exceed their powers,
act irrationally
or in a way that contradicts Human Rights Legislation or the law etc.
So, a judicial review would be possible,
but very expensive.
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It would be perfectly human to be tempted to avoid giving information about how to sue you!
But it is essential that you give the patient all the information they need and to which they are entitled.
And it does no harm in demonstrating that you are honest and fair.
In real life or an OSCE station telling a patient about complaint procedures, you would give the following information:
the claimant may seek legal redress
if they do, it may cause the NHS complaints procedure to be put on hold
see below for more details
taking legal action will not adversely affect any future treatment by the NHS
a specialist in house conveyancing would be little use to them!
litigation is very expensive
if their income is low, they may qualify for Legal Aid
Legal Aid means the government paying the legal costs, but Legal Aid is now very restricted
many solicitors will provide an initial free assessment consultationthis takes away the fear of paying out tens of thousands of pounds and getting nothing back
however, if the case is settled in favour of the claimant, a slice of the compensation will go to the solicitor.
they can be referred to PALS and
NHSCA for support and further advice.
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Impact of legal
action on NHS complaint procedures.
This is dealt with in: Reform of Health and Social Care Complaints: Proposed changes to the Legislative Framework from 2008.
Do not even think about reading it!
Up until this document, NHS complaint procedures went on hold:
once the complainant had notified the Trust
that legal action was under way
or if there was a police investigation.
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A doctor can be reported to the GMC.
The consequences can be severe.
Like being struck off the register.
But a sick or drug-addicted doctor could get the help they need.
There are similar bodies for other professional groups.
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Complainants may go down this route.
It rarely helps.
The media are only interested in the story for a day or two.
And they may take an interest in the complainant after that, not the complaint.
Particularly if it is discovered that they have something newsworthy.
Like being a drug abuser.
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A complainant may request that their MP look into the case.
This can work.
The MP can ask questions about the matter in the House of Commons.
And annoy the Secretary of State for Health or other Government ministers.
They will respond by causing the Trust a lot of hassle.
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You might think that this would support the complainant.
However, this is not its role.
It does not deal with individual complainants.
It manages campaigns for improvements to health.
But not individual cases.
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In real life you would have given the patient too much
information for them to remember easily. The hospital should have an information
leaflet with all of this information in it. If you cannot find it, ask PALS! In
the exam, OSCE stations often have a mark for mentioning information leaflets.
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How to handle a viva.
Prepare for a viva by making out a card or other revision aid with the main points well before the exam.
Put it on your list of last-minute revision topics.
Write down the main headings while at the preparatory station.
Watch your time management.
Remember that the examiner is not allowed to prompt you or give any other encouragement.
That would make the station quite stressful, unless you knew the subject well.
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You might be asked to deal with a complaint in a role-play.
To make a tasty OSCE, the complaint would be against you! This could mean
breaking bad news, the angry patient and complaint procedures all in the
same station. You need to have worked up skills for the first two and know the
facts for the third.
You need to clarify if the patient is making a formal
complaint. Or is she just unhappy about some aspect of her treatment and wanting
to have more information and some kind of explanation?
Your fundamental need is absolute honesty. Make no attempts to justify yourself. Do not be tempted to blame someone else. Do not make up fairy stories: it was an exceptionally difficult operation and you bled much more than normal
First you apologise for them being caused distress. Note,
do not pre-empt assessment of the complaint by apologising for what you have
done. Clinical incidents happen without you doing anything wrong.
Say that matters of this kind are always treated very
seriously by the Trust. Words like the following: when an operation does not go entirely to plan, a
clinical incident form is filled out. This records details of what happened. The
form is sent to the risk management team. It is their job to investigate the
incident. They will talk to everyone who was involved to find out what happened.
(Give examples: the surgeon, the theatre staff, the anaesthetist, the midwives
etc.) Then they ensure that everything is done to make things as safe as
possible for patients in the future.
You tell them that the incident will also be fully investigated by the consultant. You offer to arrange for them to meet the consultant. Tell them that if there are disciplinary or training consequences for you, the consultant will let them know.
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Dealing with a formal
complaint.
You must explain that they are entitled to make a formal complaint, if they wish to do this.
You will explain how they go about it:
basically they complain to the complaints manager
who will be responsible for dealing with the complaint on behalf of the Chief Executive.
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Advice
about how to prepare the complaint.
Advise them to sit down and decide the detail of the
complaint. Most will find it useful to have someone help them with this, e.g. a
relative or a friend. They may want assistance from PALS or NHSCA.
They should concentrate on the main issues and not include
irrelevant stuff, like disapproving of the colour of the uniforms or the
quality of the food. Some mistakenly feel that complaining about a host of
issues demonstrates how universally useless the Trust is. The effect in real
life is to dilute the complaint, submerge the main issues in trivia and make the
complainant appear a professional malcontent.
They also need to be clear about what they hope to achieve by making the complaint. Many will just want recognition of the hurt inflicted on them and an apology, with an assurance that everything possible will be done to ensure it does not happen to someone else. Others may want punishment of the guilty and others financial recompense.
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Give advice on all the
ways to complain.
Depending on the scenario and the time available, you would
explain about the other aspects of the complaints procedure: the Ombudsman, the
GMC, legal action, the media etc.
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