Independent Review by the Healthcare Commission

Key stages of the Healthcare Commission complaints process

Referral to a panel hearing

If a complaint is referred to a panel the Healthcare Commission will set up a panel of three people – a chair and two panel members.

Who can request a panel?

The complainant. Those who are the subject of a complaint also have the right to request a panel.

How the panel works

Panel members are appointed from a list held by the Healthcare Commission. The panel is established as a panel of the Healthcare Commission, independent of the organisation complained about. The composition of each panel is expected to take account of any equal opportunity and diversity issues that may be raised in the complaint.

The purpose of the panel is to

• consider the findings of the investigation according to the terms of reference
• set out its findings of matters of fact on a balance of probabilities and conclusions, with appropriate comments and recommendations in a written report.

Terms of reference will be agreed with all parties

These will normally be the same as the matters identified for investigation, unless some issues have been clarified by the investigation to the satisfaction of the complainant.

Once agreed, the draft terms of reference will be sent to the complainant and complained against for their comments.

Dates and venues

The panel will meet at a location that is convenient for the complainant.
The schedule of dates and venues for panels is set in advance for each geographical area. The complainant and complained about will be informed of the first available date and venue for the panel in their area offered a choice of date and venue.

If the complainant is too ill or unable to travel for other reasons, the panel may agree that they can be interviewed separately by one of the panel members at their home.

Venues must be unconnected with the events complained about . All venues must have

• access for disabled people and a hearing loop
• a room for the panel hearing
• two smaller rooms where the complainant and complained about can wait separately.

Panels will normally conduct their proceedings with the complainant and the complained about together in the same room to hear the evidence given by others. This ensures that both parties know what is being said and have the opportunity to comment at the time. Interviews may be conducted separately if there are reasons to believe that separate interviews will be more useful and the complainant wants this.

Papers will be circulated in advance

The panel members, experts, complainant and complained about will all receive the same papers which should include the following

• index to all the papers being sent to the panel
• chronology of the dates of the events, highlighting areas of dispute
• terms of reference
• complainant's statement
• results of the investigation or the complained about's response at the end of local resolution
• extracts of health records
• names of the chair and panel members
• names and relevant qualifications of experts
• guide to panel and next steps.

Those complained about, who are involved in only one aspect of a complaint , will only receive papers relevant to their part in the events leading up to the complaint.

Support

The complainant and the organisation complained about can bring a person of their choice with them to attend the panel.

The role of this person is to support the complainant or complained about in

• presenting their own case effectively
• answering and asking questions.

They may not

• act as advocates – unless they are the nominated advocate of the complainant (ICAS or specialist advocate)
• present a case or question any panel member, party, adviser or witness
• act as a legal representative of any party, even if they are legally qualified.

Where participants bring an ICAS advocate or a supporter from a defence body, trade union or professional organisation, they may also bring a second person, such as a friend or relative, for emotional support.

Professional organisations, defence bodies and trade unions all receive written guidance in advance from the Healthcare Commission explaining the supporter's role and the power of the chair to regulate the conduct of the panel.
Link to written guidance.

The panel chair has the authority to regulate the attendance and conduct of all supporters during the hearing. This includes deciding whether a supporter may

• address the panel
• ask questions of an adviser or the panel in order to clarify any points
• provide additional relevant information.

Travel expenses will be offered to the complainant and the person who accompanies them to the panel, as well as child or dependent care where necessary. Supporters present in a personal, unpaid capacity supporting any party will also be able to claim travel expenses.

Witnesses

The case manager and panel chair will decide who should be called to attend the hearing or be interviewed as witnesses, in addition to the organisation or practitioner against which the complaint has been made.

In general, witnesses will only be called where they are likely to give evidence that may shed light on areas where there is still dispute about the events that gave rise to the complaint.

Expert witnesses

Expert witnesses may be brought in to advise the panel on

• aspects of the complaint involving professional judgment
• areas that need to be clarified or explored during the investigation
• relevant technical, managerial and clinical skills
• expected standards of professional behaviour.

Experts will not act independently to resolve a complaint: they are there to advise the chair and panel. How they do that will depend on each individual case. They could be asked to

• provide advice to the chair and panel before the investigation on issues to address in the investigation in writing
• examine the patient, inspect health records and write it up
• attend all the panel hearing, including the discussion of conclusions and recommendations
• attend part of the panel hearing, in order to give evidence
• explain clinical or technical issues to the complainant during the panel
• where issues concerned are complex, produce a separate written report that can be shown to all parties. This may be helpful to the complainant in understanding the findings of the panel.

Their advice will be included in the report to support the findings of fact, the conclusions and recommendations.

Panel code of practice

• proceedings should be held at a time and place which is convenient for all parties
• both parties to the complaint should have access to the same information on which the panel will base it considerations, subject to the Data Protection Act 1998
• both the complainant and those complained about must be given a reasonable opportunity to express their views during the proceedings
• the standard of proof is the civil standard of a 'balance of probabilities‘ not the criminal standard of 'beyond reasonable doubt
• if any of the panel members disagree about how a panel should go about its business, the chair's decision will be final
• accurate records approved by the panel members must be kept of
  • conclusions
  • recommendations
  • the reasons for reaching these conclusions.

Next: How the panel will be conducted