When the person has died or lacks capacity

When the person has died

In principle, anyone may complain on behalf of someone who has died. In practice, according to the regulations, there is a need to demonstrate that those complaining have “sufficient interest” and are a “suitable person” to do so. Usually this is a relative or executor. In these circumstances, proceeding with a complaint should be relatively straightforward.

If the complainant is not the patient’s relative, the ICAS advocate needs to ascertain whether the patient’s relatives have been consulted and their views respected. If they have refused to give consent to proceeding with a complaint, this is not necessarily a reason for the NHS Trust to refuse to investigate a legitimate complaint. But it will make the process more complex. Access to medical records, for example, as part of the investigation process, may be problematic.

Access to the health records of a deceased person is governed by the Access to Health Records Act 1990. Under this legislation where the patient has died, their personal representative or executor or administrator or anyone having a claim resulting from the death, has the right to apply for access to the deceased's health records. The Complaints Manager might consider this to be the nearest relative, for example, a spouse, partner, son, or daughter.

There could also be situations where relatives disagree about how to proceed.

In these circumstances, the ICAS advocate will need to consult their line manager on how to handle the complaint in the best interest of the complainant.

When the person lacks capacity

In order to be judged “capable” the person should be able to understand

• what is involved in bringing a complaint
• what the procedure entails
• the involvement that will be expected of him or her
• and the likely consequences of complaining.

The more ‘serious’ the complaint, the greater the level of understanding that may be required.

The definition of lacking capacity might be, for example,

• where a patient has been rendered unconscious by an accident
• where their judgement has been impaired by learning disabilities
• where the patient has serious psychiatric illness, dementia or brain injury
• where the patient has serious communication problems.

The ICAS advocate cannot make a judgement about the capacity of the person to proceed with a complaint: in this situation they will need to obtain specialist advice.

People with learning disabilities

Adults are always presumed to be capable of taking healthcare decisions, unless the opposite has been demonstrated. This applies just as much to people with learning disabilities as to any other adult. People with learning disabilities will often have support from people close to them (family members, carers or friends) or from independent “supporters” or advocates, who can help them understand the issues and come to their own decisions.

The Department of Health gives detailed advice (external link) on consent for these client groups.

Next: Complaining on behalf of children