What the NHS Complaints Procedure can and can’t do
Private Health Care
Complaints which are the subject of medical negligence/legal action
Financial compensation
Disciplinary action
Amended regulations: two new types of complaints that cannot be considered under the regulated complaints process
Nursing homes complaints
Prison services complaints
Complaints about data protection or freedom of information
Complaints about both Health and Social Care
Complaints about local Social Services
Private health care
It does not cover private health care (treatment paid for). For example, if a dentist sees a person as a private patient.
It does cover any private services bought by the NHS – for example, if the local hospital arranges an operation to be done at a private hospital to cut waiting time. In April 2004, the Healthcare Commission took over responsibility for regulating and inspecting the private and voluntary healthcare sector, which was previously the responsibility of the National Care Standards Commission (NCSC).
Where an NHS Trust or a Primary Care Trust makes arrangements for the provision of services with an independent provider, it has to ensure that the independent provider has in place arrangements for the handling and consideration of complaints about any matter connected with its provision of services as if these Regulations applied to it.
The Complaints Procedure also covers any complaint made about an NHS body’s staff or facilities relating to care in an NHS Trust’s private pay beds.
There is no independent complaints procedure for private hospitals and each hospital will have its own procedure. There is a useful guide to complaining about private treatment, privately paid for at http://www.bbc.co.uk/watchdog/guides_to/medicalmatters/index5.shtml (external link)
Complaints which are the subject of medical negligence or legal action
In the early part of the process, it may not be clear whether the complainant simply wants an explanation and apology, with assurances that any failures in service will be rectified for the future, or whether the complainant is in fact seeking information with formal litigation in mind.
Prima facie evidence of negligence should not mean that the complainant cannot have a full explanation of events and, if appropriate, an apology: an apology is not an admission of liability.
However, if the complainant has either instigated formal legal action, or notified in writing that he or she intends to do so, the complaint cannot be investigated under the NHS procedure.
This does not apply if legal advice is sought informally to discuss concerns.
Financial compensation
- the complaints procedure will not award financial compensation
- compensation is generally only possible through legal action for which the complainant should consult a solicitor specialising in medical negligence
- free specialist advice on taking legal action, is available to clients direct, not via an advocate/caseworker unless your organisation has a contract to supply this service, from Action Against Medical Accidents (AVMA). (external link)
There is a time limit of three years from the date of the incident to begin legal action (except in the case of children).
Sometimes legal aid may be available.
The Legal Aid Scheme has been replaced in the UK by the Community Legal Service Fund. The Law Society now restricts to around 100 the number of law firms that are able to offer Legal Aid for medical or clinical negligence claims. This means that a family solicitor may not be qualified to pursue a medical negligence claim.
The Legal Services Commission which has replaced the Legal Aid Board has produced a 32 page practical guide (external link) to obtaining community legal service funding including the eligibility criteria.
Disciplinary action
The complaints procedure is concerned only with resolving complaints and not with investigating disciplinary matters. The purpose of the complaints procedure is not to apportion blame amongst staff, but to investigate complaints with the aim of satisfying complainants and at the same time being fair to staff.
Complainants seeking disciplinary action against a member of staff should complain to the professional body who holds their registration - the General Medical Council for doctors, the Nursing and Midwifery Council (previously UKCC) for nurses and midwives etc. These professional bodies generally only look at complaints against their members once the NHS complaints’ procedure has been concluded.
Amended regulations: two new types of complaints that cannot be considered under the regulated complaints process:
- a complaint the subject matter of which has already been investigated under these Regulations
- a complaint which relates to any scheme established under section 10 (superannuation of persons engaged in health services, etc) or section 24 (compensation for loss of office, etc) of the Superannuation Act 1972(a), or the administration of those schemes.
Nursing Homes Complaints
Each nursing home should have its own in-house complaints procedure which is comparable to the Local Resolution process through the NHS Complaints Procedure.
If the complainant remains concerned following the initial investigation by the management of the Nursing Home, the matter should be referred to the Healthcare Commission. (external link)
The Healthcare Commission was set up under the Health and Social Care (Community Health & Standards) Act 2003 to promote improvement in the quality of health and healthcare. In April 2004, the Healthcare Commission took over responsibility for regulating and inspecting the private and voluntary healthcare sector, which was previously the responsibility of the National Care Standards Commission (NCSC).
Alternatively, complainants can ask the Healthcare Commission for an Independent Review. Independent Review would only be available to those patients whose care is NHS funded.
Prison services
From April 2003 the Department of Health took over budgetary responsibility from the Prison Service for health care in prisons. By April 2006 NHS Primary Care Trusts will commission all health services for prisoners and the first wave of 34 prisons came into NHS responsibility in April 2004, with the majority of the remaining prisons coming under NHS responsibility from April 2005.
The transfer of responsibility for healthcare includes implementing patient and public involvement (PPI) and the NHS complaints procedure across prison services. As NHS patients, prisoners are entitled to use the NHS complaints procedure.
The way ICAS services will support prisoners who want to complain about health care is under discussion at present and options are being explored. If you receive a request for support from a prisoner, please contact your line manager in the first instance who will advise you as to how to proceed with the complaint.
Complaints about data protection or freedom of information
The NHS complaints procedure does not cover complaints arising out of an NHS body’s alleged failure to comply with a data subject request under the Data Protection Act 1998 or a request for information under the Freedom of Information Act 2000.
The Freedom of Information access came in to force in January 2005. Further information is available on the Information Commissioner’s website. (external link)
Complaints about both Health and Social Care
Under the amended regulations there is now a duty on NHS bodies to cooperate with local authorities when complaints relate in part to a local authority’s functions. This will ensure that patients and service users get a more integrated response when they raise concerns which cover both health and social care.
The duty to cooperate for all parties includes the duty to:
- share relevant information, and
- attend joint meetings reasonably arranged to consider the complaint.
Additionally, the two bodies should seek to agree which organisation should take the lead in co-ordinating the handling of the complaint and dealing with the complainant. The lead body’s Complaints Manager must:
- coordinate the handling of the complaint by working closely with all those involved,
- ensure a comprehensive and appropriate response is sent, and
- ensure that they keep the complainant informed and, where possible, coordinate a single reply.
Social Services Complaints Procedure
In 2004 CSCI circulated a consultation paper entitled ‘An Independent Voice’ as part of the revision of complaints procedures. That paper proposed the transfer of responsibility for the review stage (Stage 3) of the complaints procedures from local authorities to CSCI. These proposals have been withdrawn and Stage 3 will continue to be a local authority responsibility.
Proposals for a reformed social services complaints procedure received Parliamentary approval as part of the Health and Social Care (Community Health and Standards) Act 2003. Regulations which form part of the legislative basis for the complaints procedure came into force on 1 September 2006. The regulations impose time-limits on making complaints, new timescales for handling stages of the process, and greater independence at the final review panel stage. Guidance to support the regulations has also been issued.
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Local Authority Social Services Complaints (England) Regulations 2006 Statutory Instrument 2006 No.1681
(external link)
Stage 1 - Local Resolution
This equates to stage 1 of existing procedures. The timescales are 20 working days for resolution instead of 14 calendar days as at present. There is a 12 month time limit within which complaints can be made – with discretion to the local authority to extend this period.
Cross-boundary complaints
A complaint involving social care and health services can be made in its entirety to any one of the organisations involved. Local authorities and the NHS have a duty to co-operate with each other. A ‘lead body’ should be identified with a single joint reply where possible.
Stage 2 – Investigation
If a complaint has not been resolved to the complainant’s satisfaction, the complainant ‘has the right to move things on to a formal investigation if they wish’. The Investigating Officer reports to the Complaints Manager the findings and conclusions of the investigation. A Senior Service manager (the Adjudicating Officer) must respond to the complaint (the adjudication) and should consider if it is necessary to meet with the complainant. The timescales are 65 working days to respond to the complainant with a progress report to the complainant after 25 working days (28 calendar days extendable to three months at present).
Cross-boundary complaints
Separate procedures apply at Stage 2 and beyond. Both responses should be completed simultaneously and reports delivered to the complainant.
Stage 3 – Review Panels
Within 20 working days of receipt of the report of the investigation a complainant may request a review panel for ‘further consideration of his complaint’. The Panel is to comprise three people including at least two independent people one of whom must be the chairperson. A review panel must convene within 30 working days of receipt of the request. There is a limited facility for referring to the Local Government Ombudsman instead.
Panel to be set up within 30 working days of the request (currently 28 calendar days). The local authority must respond to complainant within 15 working days of notification of the Panel’s decision if it concludes that the local authority did not adequately deal with the complaint.
Referral to Local Government Ombudsman
If the complaint is not resolved at Stage 3. The complainant can approach the Local Government Ombudsman at any stage.
A leaflet about the Local Government Ombudsman (LGO) and making a complaint is available by ringing their Adviceline on 0845 602 1983 or from their website . |
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