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71
13
The National Health Service
complaints process
COMPLAINTS TO THE NHS
Written complaints about NHS services have more than doubled between
2005/2006 and 2017/2018. In 2005/2006, there were 95,047 complaints or 1,827 a
week, compared with 208,626 or 4,017 a week in 2017/2018. GP practices received
approximately 1 written complaint for every 4,200 appointments in 2018/2019,
based on data from NHS digital.
1
e factors that inuence the number of com-
plaints include the ability of local organisations to resolve issues when they rst
arise and patient awareness of the Patients Advice Service (PALs).
THE NATIONAL HEALTH SERVICE COMPLAINTS
REGULATIONS
Any doctor practising within the NHS must know how to deal with complaints
and how to negotiate the NHS complaints procedure. As clinicians, it can be dif-
cult to think like a patient. ings that seem very obvious to a doctor may not be
to a patient without any clinical background and experience. On the other hand,
arguments that seem plausible to a patient may seem outrageous to a doctor. For
example, a patient may be concerned about eye issues aer a tooth extraction
when there is no physiological or pathological link between them.
No matter how weak a complaint or how unreasonable an assertion may seem,
the patient deserves full attention from the practice or organisation to try and
address their issues. Closing complaints too quickly, reacting defensively or dis-
missing a complaint outright without any investigation can escalate the situation
unnecessarily, oen ultimately resulting in litigation. Many patients are aware of
numerous adverts for no-win no-fee services who will assist with clinical negli-
gence claims.
DOI: 10.1201/9781003179351-17
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72 The National Health Service complaints process
e cost, stress, time and eorts will be far higher and more painful to resolve
through litigation than solving a simple complaint early on. erefore, dealing
with complaints is a skill worth learning.
e regulations are slightly dierent between England and the devolved
nations, and it is important to be familiar with the regulations, wherever we
work. e general principles, however, are universal.
e National Health Service Complaints Regulations were formulated in 2009
to better understand and respond to patients’ complaints.
2
e document has
been upgraded and added to in the following years.
3
As the most suited people
to handle complaints are the organisations the complaints are led against, the
NHS regulations make sure that all health service providers and health profes-
sionals are legally, contractually and professionally obligated to provide the ideal
place to manage a patient’s complaint.
Furthermore, an obligation to fully cooperate and facilitate the process has
been enshrined.
e regulations impose strict requirements for every practice/hospital. ese
are the key elements of the regulations. An extensive list includes requirements to
make the process of ling and dealing with complaints easy for everyone.
‘e practice must have arrangements in place to handle complaints eciently,
investigating them properly and delivering a timely and appropriate response. It
must make information about these arrangements available to the public’. us,
NHS practices/hospitals have a duty to have services specically in place to handle
complaints and make the information about them clearly available for patients.
Organisations are required to ensure the proper and fair handling of com-
plaints by appointing one person as the ‘responsible person’ who takes overarch-
ing responsibility for them. Additionally, they are responsible for ensuring that
the teaching or learning points from the complaints are being practised. ere
should also be a designated complaints manager who is responsible for managing
all the complaints coming into the practice or organisation. Both of these roles
can be fullled by the same person.
According to the complaints regulations, anyone aected by decisions, actions
and omissions or any person acting as a representative can le a complaint.
However, any third party needs to be proven to be working in the best interest
of the patient.
e PHSO’s Principles of Good Complaint Handling mentions six key prin-
ciples that are central to good complaints handling.
4
e ombudsman expects
to see these applied to complaints handled by all public bodies, including NHS
bodies and organisations providing NHS services.
●
Getting it right
●
Being customer focused
●
Being open and accountable
●
Acting fairly and proportionately
●
Putting things right
●
Seeking continuous improvement
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The National Health Service complaints regulations 73
Stage one of the NHS complaints procedure involves resolving complaints at the
local level. In most instances, that is the GP practice or hospital concerned. e
NHS complaints procedure emphasises resolving complaints as quickly as pos-
sible and, ideally, locally. Speed, sympathy, willingness to listen and eective,
considerate communication are oen all that are needed.
Timing is important when dealing with complaints. If an oral complaint is
handled with the patient successfully within one working day, it does not even
fall within the scope of the regulations. If this cannot be achieved, both written
and oral complaints need to be acknowledged within 3 working days.
When acknowledging, the practice or doctor should not acknowledge any
fault or make any inference as to the validity of the complaint, but they can accept
the fact that there is a complaint. In the acknowledgement, it is good practice to
suggest a place or time for a phone call when the details of the case can be dis-
cussed and information gathered. e practice or organisation then investigates
the complaint once all the relevant information is gathered.
It is unlikely that a hospital doctor will write the response, but they need to
provide an account of what happened to help the complaints manager write a
response. ey may also be asked to discuss the complaint, which may include
meeting with the complainant.
It is vital that complainants are kept informed of the process and timescales
involved. e responsible body should keep a record of the complaints, record
any lessons learnt, consider and monitor complaints as part of its clinical gov-
ernance procedures and provide an annual report that should be available on
request. Primary care providers should also send a report to the commissioning
body.
At every level, it is important that records are kept of what actions are taken in
response to complaints, and these must be kept separate from patients’ records.
Keeping careful records will help manage complaints and also provide evidence
of eective complaint handling if a complaint is reviewed by the ombudsman.
REFERENCES
1. Tabner, A., Tilbury, N., Jones, M., Fakis, A., Evans, N., Johnson, G.
(2022). Trends in emergency department litigation within the NHS: A
retrospective database analysis. Medico-Legal Journal, 90(1), 5–12.
doi:10.1177/00258172211057000.
2. Local Authority Social Services and National Health Service Complaints
(England) Regulations. (2009). https://www.legislation.gov.uk/
uksi/2009/309/contents/made.
3. https://www.england.nhs.uk/publication/nhs-england-complaints-policy/.
4. Nason, S. (2020). European principles of good administration and UK
administrative justice. European Public Law, 26(2).
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74
14
Independent sector
complaints processes
Private health care organisations and hospitals are a large part of health care
services in the UK. While private hospitals are not required to abide by the same
laws and regulations imposed on NHS hospitals, a similar standard of care is
expected, and most hospitals have a code or framework in place that ensures
seamless complaint management.
e ISCAS Code of Practice for Complaints Management (ISCAS Code) was
established to provide similar support and guidelines as the NHS for privately
owned hospitals and organisations in dealing with complaints. e ISCAS Code
applies to all complaints by patients who are dissatised with services provided
by independent health care providers (IHPs). ese IHPs include hospitals and
clinics that provide services paid for directly by the patient or an insurance
scheme. In some instances, it may also include private patient units in NHS hos-
pitals, where they are subscribers to the ISCAS.
e ISCAS Code sets out the standards that all subscribing IHPs are expected
to follow when dealing with complaints about their services. It is designed to
ensure that patients/customers receive a fair response when things go wrong.
Subscribing IHPs agree to abide by the code. If an IHP breaks the code, the
ISCAS does not have any statutory power to enforce it; however, actions will be
taken against the organisation, including termination of the subscription.
e ISCAS functions are based on a similar framework to that of the NHS’s,
namely the PHSO’s Principles of Good Complaint Handling (2009). Like govern-
mental organisations, the independent sector handles complaints in several steps,
depending on severity and failure to resolve. e code does not cover unlaw-
ful acts, criminal acts, nancial disputes, clinical negligence, mental health act
issues, NHS patients and private medical insurance products. Complaints regard-
ing these should go to the appropriate authority (e.g. the police or the court).
Only complaints regarding service and treatment can be processed through the
ISCAS.
DOI: 10.1201/9781003179351-18
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Independent sector complaints processes 75
ISCAS-mediated steps are specic and involve the health care professional.
ey include:
●
Local resolution: When a patient or anyone on their behalf complains about
a hospital or practice, the rst step is to try and resolve it locally. e ISCAS
requires that the process of complaint submission should be clear and
concise and that all patients should have access to help if needed, such as to
overcome a language barrier or disability. Upon receiving the complaint, the
IHP is required to consider and investigate it. If an independent investigation
is needed, the IHP bears the cost for it. A written acknowledgement must be
sent to the complainant within 3 days and a full response to the complaint
within 20 working days.
●
Complaint review: If the complaint is not resolved locally or the patient is not
satised with the measures taken, they may want to take it to the next level.
At the next stage, the complaint, along with all documentation, is analysed
and reviewed. Stage two may need face-to-face meetings and discussions
with the involved sta. e timing deadline of 3 and 20 days applies to this
stage as well.
●
Independent external adjudication: is last stage is only undertaken when
the complaint cannot be managed by the IHPs. is step is mediated by
the ISCAS. An adjudicator will oversee handling the documentation and
mediation.
e Independent External Adjudication (IEA) is a public body that handles
complaints against IHPs. It is important to note that the IEA does not represent
the health care provider or the patient. eir responsibility is only to investigate
the complaint, mediate discussions between the parties and suggest whether an
expert needs to be hired to ascertain whether a health care provider has acted
within their rights and responsibilities in accordance with relevant laws.
Ultimately, the adjudication decision is nal. For health care professionals,
the prime responsibility is to comply with the ISCAS and provide any documents
and records needed.
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76
15
Duty of candour
A duty of candour is owed to every patient under a health care professional’s
care. Health care professionals have an obligation to inform their patients about
any events that may result in harm and provide all information about their treat-
ment or any mistakes that may have happened. is is a part of the larger duty
of providers to be honest with their patients. Candour is expected of doctors and
helps to build rapport between patient and provider, which can help improve
patient satisfaction and treatment adherence. e courts will look upon attempts
to deceive or withhold information very poorly. Nevertheless, some downsides to
candour can be expected.
e rst potential but unavoidable harm caused by candour is that patients will
oen assume lack of expertise or skill on the health care professional or doctor’s
part. Unavoidable developments or idiopathic conditions are also oen blamed
on the doctor, and if errors are detailed in a letter in black and white, there is an
all too human desire for recompense and compensation. e numerous no-win
no-fee negligence solicitor rms make it all too easy to launch a claim. On the one
hand, patients should be allowed to seek recompense for harm, but on the other
hand, frivolous unjustied claims can incur signicant costs and harm to doc-
tors related to the stress and distress of handling the complaint.
Without a doubt patients deserve justice and recompense if they have come
to avoidable harm and claimants’ solicitor rms undertake an invaluable role in
assisting patients in getting what they deserve.
Patients or families oen wish to le claims against the doctor or health care
facility when their loved one’s health takes a bad turn. Many clinical negligence
allegations are made based on frustration and anger.
e situation only gets worse when a denite mistake has been made,
which has been identied by an internal investigation, and harm has occurred.
Considering the rates of litigation, many providers are uncomfortable with apol-
ogising because they fear that it will be used against them as an admission of
guilt. As we have discussed before, this is not true.
e duty of candour is inviolate and must be practised. It is the right of any
patient to be fully informed regarding their care and the integrity of their health
and body. All information, whether good or bad, must be relayed to the patient.
DOI: 10.1201/9781003179351-19
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Duty of candour 77
Oen, the way this communication is undertaken will have an impact on what
transpires thereaer.
e GMC oers excellent guidance as to what our duty of candour entails.
6
It
states that:
Every healthcare professional must be open and honest with
patients when something that goes wrong with their treatment or
care causes, or has the potential to cause, harm or distress. This
means that healthcare professionals must:
• tell the patient (or, where appropriate, the patient’s advocate,
carer or family) when something has gone wrong
• apologise to the patient (or, where appropriate, the patient’s
advocate, carer or family)
• offer an appropriate remedy or support to put matters right (if
possible) explain fully to the patient (or, where appropriate, the
patient’s advocate, carer or family) the short- and long-term
effects of what has happened.
Duty of candour letters will inevitably trigger litigation, but their very nature is
sometimes misinterpreted. Trusts actively seek to nd harm and errors, learn
from them and put in place measures to prevent them happening again. ey are
designed to be critical of current practice to allow us to evolve and change prac-
tice going forwards to protect patients. Acknowledgement of harm and sugges-
tions for change are not always the same as admitting negligent treatment, and
the concern is that duty of candour letters and responses to complaints are used
as a ‘stick to beat the clinician with’.
Health care professionals must also be open and honest with their colleagues,
employers and relevant organisations and take part in reviews and investigations
when requested. ey must also be open and honest with their regulators, raising
concerns where appropriate. ey must support and encourage each other to be
open and honest and not stop someone from raising concerns.
All health care professionals have a duty of candour – a professional respon-
sibility to be honest with patients when things go wrong. is is described in e
professional duty of candour,
1
which introduces this guidance and forms part of
a joint statement from eight regulators of health care professionals in the UK.
In addition to the individual’s obligations, organisations have a duty of can-
dour to support their sta to report adverse incidents and to be open and honest
with patients if something goes wrong with their care.
Most patients simply wish for an apology, to understand what went wrong and
assurance that it will not happen to anyone again.
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78 Duty of candour
REFERENCE
1. General Medical Council. The Professional Duty of Candour. https://www
.gmc -uk .org /professional -standards /professional -standards -for -doctors
/candour-- -openness -and -honesty -when -things -go -wrong /the -profes-
sional -duty -of -candour.
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79
16
Responding to the complaint
The tone of your response needs to be professional, measured and sympathetic.
Be careful about disclosing any patient information or third-party data without
explicit permission.
ere are time constraints, and you should not introduce undue delay.
However, it is also important to take your time and think about your response
carefully before submitting it. Do not let your emotion cloud your response, and
leave it overnight before sending it. Oen the response will be sent to your man-
ager or complaints handling team rst, but bear in mind that it may be sent to
the patient at some stage. More importantly remember that it will inevitably be
disclosed to the patient’s legal team if litigation ensues.
e complaint may be about you, or it may relate to the conduct of your team
or colleagues. e main purpose of the complaints procedure is to address the
complainant’s concerns, resolve the complaint and help you identify any changes
needed to improve your practice.
A thorough and detailed rst response should help minimise the risk of the
complainant asking for clarication and the risk of any further escalation of the
complaint or even litigation. Put your case forward in a sensible and logical way.
e information in your response will be included in the correspondence with
the patient but will not be copied to the patient in its entirety at the rst stage. You
have a duty to the patient to assist them, a duty to learn from the complaint and
adapt your/your team’s future practice if appropriate and a duty to your organisa-
tion and the NHS as a whole.
Remember that the letter you/your practice/your trust send to the patient will
potentially be sent to a clinical negligence lawyer and may be available to the
court if a claim is made. If a complaint is made to a primary care organisation
rather than to a GP practice, the doctor(s)/health care professionals involved
should be fully consulted and have the opportunity to provide statements about
their involvement. e organisation might also seek independent expert advice
on the complaint’s clinical aspects. In secondary care, a written response can be
sent from the chief executive or a responsible person on their behalf.
Include a factual chronology of events, which can be from the medical record
or your recollections. It is acceptable to quote from memory, but if you cannot
DOI: 10.1201/9781003179351-20
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