Local resolution

Primary and community care
Conciliation
Complaints and the Mental Health Act
Complaints about dental and optical services

Local resolution: primary and community care

All GP practices, dentists, opticians and pharmacists are obliged to have a complaints procedure.

Local Resolution for primary care practitioners
The arrangements for local resolution set out in the Complaints Regulations do not apply to primary care practitioners at the moment. The separate Directions and Regulations relating to complaints made about primary care services continue to apply. These are laid out in detail in the 2004 guidance. The practice based procedure booklets issued to primary care practitioners in 1996 continue to apply.

See: Primary and community care in regulations

At present PCTs are not able to intervene in the handling of complaints about Primary Care, other than to offer to act as “honest broker” between the complainant and the practice and, where appropriate, to arrange a conciliation meeting if both parties agree.  “Safeguarding Patients” indicates that this may soon change and patients will be able to complain directly to the PCT if they so choose.

If a complainant remains unhappy with the outcome of their complaint, they may ask the Healthcare Commission to undertake an independent review. The complainant may do this through the PCT or by approaching the Healthcare Commission direct.

Special circumstances
Advice should be sought immediately from your line manager if the complaint

• includes allegations of serious clinical negligence or other serious matters
• includes allegations about staff conduct which could lead to disciplinary action
• alleges an actual or potential criminal offence.

See: Patient safety

Local resolution for community-based practitioners
If the complaint is about community-based services, such as community nursing staff, community dieticians, community physiotherapist and occupational therapists, these are direct employees of the NHS trust and come within the NHS complaints procedure. The procedure is the same as for other NHS Trusts.

Practice based complaints procedures

GPs, dentists, opticians and pharmacists are independent contractors. There are nationally agreed criteria for practice complaints procedures, although the practice-based procedure is managed entirely by the practice

The procedure is required to be

• simple and responsive
• accessible and well publicised
• confidential
• understood by all practice staff so that they can advise patients on how to use it
• speedy yet thorough.

GPs are also required to take reasonable steps to ensure that patients are aware of

• the role of the Primary Care Trust and other bodies in relation to complaints about services under their contract
• the complainant’s right to assistance with any complaint from ICAS

There should also be information on display at the practice or Primary Care Trust on how to complain and who to complain to. All complaints staff have a duty to investigate the complaints that are made to them.

Complaints’ lead in the practice
Each GP, dental or optical practice must have a person who is the “complaints lead”, and each NHS Trust and Strategic Health Authority has a Complaints Department. The complaints lead in a practice is responsible for

• the operation of the complaints procedure
• the investigation of complaints.

They can explain to the complainant how to make a complaint and explain how the NHS Complaints Procedure is handled in their Practice or Trust.

The complaints’ lead may be an administrator or (particularly in single-handed GP practices) the practitioner themselves.

The practice must also nominate a partner, or other senior person associated with the contractor, to be responsible for

• the effective management of the complaints procedure
• ensuring that action is taken in the light of the outcome of any investigation.

It’s good to talk!

If they have not already done so, it is possible that the complainant could deal with the complaint immediately by speaking to the member of staff involved or the person responsible for the service they are concerned about. Many problems can be dealt with effectively in this way. If they need help with this they could be referred to PALS. (external link)

Some complainants may prefer to make their initial complaint to someone who has not been involved in their care. If the complainant is anxious about talking directly to the member of staff involved, you can advise them to speak to the complaints’ lead at the practice or Primary Care Trust. They may be able to deal with the matter quickly and informally.

The practice team member who handles the initial contact (if not the practice complaints’ lead) should give a copy of the practice complaints leaflet to the person complaining and refer them to the practice complaints’ lead. They will leave the investigation to the complaints’ lead, unless it is a simple matter that can be resolved straight away.

All verbal complaints must be recorded in writing.

If an informal meeting seems to be the next best step, a suitable time and place should be arranged with the person complaining for a meeting with the complaints’ lead in the practice. The complainant may ask the ICAS adviser to support them at the meeting.

Patient Advice and Liaison Services (PALS)

All Primary Care Trusts now have Patient Advice and Liaison Services (PALS). PALS staff can explain the way the NHS Complaints Procedure works to a complainant, but should not be involved in the investigation or formulation of a response to a formal complaint.

PALS provide

• confidential assistance in resolving problems and concerns quickly
• explanations of complaints procedures and how to get in touch with someone who can help
• confidential advice and support to patients, families and their carers
• information on the NHS and health-related matters
• information on how patients can get more involved in their own healthcare and the NHS locally.

PALS staff can also offer assistance in putting together a statement of complaint and may also speak to a NHS staff member on behalf of a complainant in the very early stages of raising a concern, if the complainant feels unable to speak to them themselves.

However, if the complainant has been referred to ICAS at a very early stage, while there is still room for early, informal resolution, ICAS would normally only provide support with phoning or letter writing (at the request of the client) where

• specialist advocacy would benefit the client.
• there may be a conflict of interest for PALS staff.

In these circumstances, PALS should facilitate the handover to the ICAS staff, if the complainant wishes, by making first contact, helping summarise the complaint and copying relevant correspondence with the permission of the complainant.

General concerns

If the complainant has a general concern, rather than an individual complaint, they can contact their local Public and Patient Involvement Forums (PPI Forum). They can help if the complainant does not wish to make a formal complaint but would like to raise awareness of a particular issue. An example could be if they are are worried about the level of cleanliness at their local hospital.

Patient and Public Involvement Forums Currently there is a Patient and Public Involvement (PPI) Forum for every Primary Care Trust (PCT) in England. The Forums play an active role in health related decision making within their communities. PPI Forums have a number of roles, which include obtaining views from local communities about health services and make recommendations and reports making reports and recommendations on the availability and delivery of health services influencing the design of and access to NHS services. The Department of Health is proposing to change the arrangements for local public involvement. Following extensive consultation, the Department of Health published its final proposals in July 2006: A Stronger Local Voice.  A framework for creating a stronger local voice in the development of health and social care services (external link) sets out the changes in detail. Local involvement networks (LINks) will be established for every local authority area with social services responsibilities. These networks will be able to provide flexible ways for communities to engage with health and social care organisations in ways that best suit the communities and the people in them. LINks will establish a specific relationship with overview and scrutiny committees (OSCs) and have the power to refer matters to the OSCs and to get an ‘appropriate response’.  The duties to involve and consult will be simplified and strengthened. The NHS commissioning framework Health reform in England: update and commissioning framework (July 2006) (external link) sets out more explicit rules on how the NHS should carry out consultations and involve local people in decision-making. Under Statutory Instrument 2003 No 2124 (external link) The Patients' Forums (Functions) Regulations 2003 ICAS services are required to send anonymised data on complaints to PPI Forums. See: NHS explained

When to put things in writing

If this does not resolve the problem, the complainant should put the complaint in writing to the complaints’ lead at the practice or Primary Care Trust.

Time Scales are vital The complaint should be made not more than six months after the events, or six months after they realise they need to complain one year after the events. These dates will not apply if there is a good reason why the complainant could not complain sooner. However, if it is out of time, it is up to the person dealing with the complaint to decide if it will be possible to investigate it. In any case where a complaints’ lead has decided not to investigate a complaint on the grounds that it was not made within the time limit, the complainant can request the Healthcare Commission to consider it. See: Independent Review Healthcare Commission

Complaining can be stressful for everyone concerned

Whatever route the complainant chooses, spend some time thinking about how the complaint is worded. Make sure you are clear about what is most important to the complainant, and how they can put their case as clearly as possible. Work out an itemised plan of what the complainant wants to say, in order of priority.

The complaint is investigated

Once the complaint has been made to the practice or Primary Care Trust, the complaints’ lead or manager is responsible for ensuring that the complaint is fully investigated.

Complaints to Primary Care Trusts about directly managed services: the initial contact
When the complaint is made verbally to a Primary Care Trust, the complaints’ manager has to make a written record of the complaint which should include the name of the complainant, the subject matter of the complaint and the date on which it was made. This written record must be sent to the complainant with an invitation to the complainant to sign and return it.

The operation of the complaints process is described in the 2004 regulations guidance as “listening, learning and improving”. This includes

• providing anyone identified as the subject of a complaint with a full account of the reasons for the investigation
• giving them a proper opportunity to talk to the complaints’ lead
• ensuring they are kept informed of progress.

The PCT complaints manager must send a copy of the complaint and the acknowledgement to any person identified in it as the subject of the complaint. Where the complaint involves clinical issues, the findings and response must be shared with the relevant clinicians to ensure factual accuracy in respect of those clinical issues.

Make sure the complainant is fully aware that the person complained about has this right.

How long will it take?

If the investigation takes longer, the complaints’ lead should keep the complainant regularly informed of progress and the reasons for the delay.

Access to patient records
The complaints’ lead may need to refer to relevant extracts of the complainant’s clinical records to clarify details of consultations and events being complained about: the complainant’s permission must be sought for this, or the patient’s consent if the complainant is acting on behalf of someone else.

Complaints records are always kept separate from health records, subject to the need to record information which is strictly relevant to their health in the patient’s health records.

See: Access to records

If the letter comes from the patient’s representative

If the complainant is writing on behalf of someone else who is a patient, they must show that they have the patient’s permission, if they are able to give consent.

See: Consent

Where a patient has died or is unable to give consent, the complaints’ lead in the practice has the power to decide whether the complainant has ‘sufficient interest’ in the deceased or incapable person’s welfare to be suitable to act as a representative. This could depend, for example, on the need to respect the confidentiality of the patient. The patient may earlier have made it known in their notes that information should not be disclosed to third parties.

If the complaints’ lead decides that a person is not suitable to act as representative, they must provide full information outlining the reasons why the decision has been taken.

What if there is evidence of professional misconduct?

Some complaints will identify information about serious matters. The Primary Care Trust may feel it appropriate to consider disciplinary investigation at any point during the complaints procedure.

Consideration as to whether or not disciplinary action is warranted falls outside the complaints procedure and is subject to a separate process of investigation. Nonetheless, information gathered during the complaints procedure may be made available for a disciplinary investigation.

For primary care providers, local disciplinary procedures cannot be considered until an independent review by the Healthcare Commission has been completed.

Only if action is necessary to protect patients, for example such as the need to involve the police or a professional registration body, would disciplinary investigation interrupt the handling of a primary care provider complaint. The need for prompt action in this respect was highlighted by the Shipman Inquiry.(external link)

This referral can be made at any point during any stage of the complaints procedure. Investigation of other aspects of the complaint will only be taken forward if they do not, or will not, compromise or prejudice the concurrent investigation.

If this happens

• a full report of the investigation so far will be made available to the complainant
• the complainant will be informed of the expected timeframe of the other investigative process and kept informed of progress
• when that process is complete a further response will be sent to the complainant, outlining the outcome and any actions to be taken.

The response to the complaint

Some complaints are complex and may require a greater length of time to conclude the investigation and provide the response. As soon as it becomes clear that it will not be possible to respond within twenty working days, the complaints manager will discuss this with the complainant and agree a new date for response.

The ICAS advocate should check that the response provides the complainant with

• a summary of the complaint
• an explanation of the events
• an apology where appropriate
• reassurances – and an action plan including timescales and the job title of the person responsible for overseeing its implementation - where the investigation finds that something could/should have been done differently, or if there is anything to be done as a result of the complaint
• what steps have been taken to prevent similar incidents
• details of further redress through the NHS Complaints Procedure.

Download Offline checklist of above (Acrobat file) 14k

The response should be

• balanced, factual and impartial
• clear and easy to understand
• it should avoid technical terms, but where technical terms are used to describe a situation, events or condition, an explanation of that term should be provided.

The response should advise what the complainant can do if they disagree with the response or would like further explanation. It will also remind the complainant that they can take the complaint to the Healthcare Commission.

Make sure that staff involved in the patient’s care have had the opportunity to comment, especially if there are details which do not agree. For example, the complainant’s perception of fairness may be undermined if the response only includes comments from the line management of the person/service being complained about.

Make sure the complainant is aware that the response will also be shared with those involved in the investigation and named in the complaint.

Learning from complaints

Each Primary Care Trust is required to prepare a report to go to the Trust Board for each quarter of the year. The report has to

• specify the numbers of complaints received
• identify the subject matter of those complaints
• summarise how they were handled, including the outcome of the investigation.

They are also required to submit an annual report to the Strategic Health Authority summarising the information contained in the quarterly reports and identifying any progress or areas in need of improvement.

As part of the new GP contract, GPs are required to inform the Primary Care Trust, at agreed intervals, of the number of complaints it has received under the procedure Section 98: provision of information about complaints.(external link)

All complaint reports are anonymous to ensure patient and complainant confidentiality: no complainant will be identified in any way.

If the Complainant is satisfied with the reply

Remember to remind the complainant that their complaint was a very important form of feedback for the NHS. You can also tell them that details of any changes to processes or procedures that were promised to them in resolving their complaint, will be included in an anonymised report to the Trusts Patient and Public Involvement Forum, in the hope that Forum Members will check that the changes have been made at an appropriate time.

If the complainant is not happy with the reply

If the complainant is not happy with their first reply, they can pursue the complaint further by writing another letter explaining what they feel has not been covered. This could result in an offer of a meeting with the staff and managers concerned. A meeting could be the best way to deal with complaints where a number of issues are involved. However, some Trusts will not enter into further communications with complainants beyond their initial response letter. This is particularly true of some PCTs, who will then expect a dissatisfied complainant to refer their complaint to the Healthcare Commission.

Some complainants may want to go on to an Independent Review by the Healthcare Commission because it is seen to be independent. The complainant's experience of the handling of their complaint may reasonably have caused them to lose confidence in getting an answer from any further attempts at local resolution.

See: Independent Review Healthcare Commission

Conciliation

All NHS Trusts now have an obligation to provide conciliation.

Feedback from ICAS advocates nationally indicates that there are widely differing practices and protocols in place in terms of conciliation: this is only a guide to what the conciliation process may look like in some areas.

The practice or Primary Care Trust may suggest conciliation if this seems appropriate. Complainants themselves can also ask for a meeting and or conciliation. There is an obligation for primary care trusts to provide conciliation for family practitioner services. Conciliators are independent and specifically trained in this kind of conflict resolution. The conciliator can arrange a meeting where the parties (either separately or together) can express their views and try to resolve their differences. A conciliator will only become involved if both parties agree. The conciliation process is confidential to the people taking part.

Conciliation can be conducted in different ways. Sometimes the parties will be brought together to discuss the complaint. At other times the conciliator will see each party on their own. Or, both approaches may be used, e.g. the complainant may meet the conciliator on their own first and then meet together with the practitioner. After conciliation has been attempted, the complainant will be notified of the results of the conciliation process in writing. This should also set out what the next steps are if the complainant remains dissatisfied.

Confidentiality has to be strictly observed during the conciliation process. Conciliators will never be required to report to NHS bodies the details of cases in which they are involved.

Meetings and conciliation: accompanying the complainant

• complaints are stressful for everyone concerned. Monitor how the complainant is reacting, how much support is needed. At times the complainant may need you to speak on their behalf/ provide supporting information
• check that everyone understands the issues: seek clarification if issues are unclear
• clarify at the outset what the meeting can achieve (and what it can’t)
• the complainant (or the ICAS advocate) will be asked to start the discussion by asking the practitioner questions about the circumstances or events which lead to the complaint. The practitioner will be given the opportunity to reply. This will continue until all the points raised by the complainant have been addressed
• take notes
• obtain an apology where appropriate, and acknowledgement of issues raised
• ask about potential for improvements

At the end of the meeting

• check with the complainant that all aims were achieved, and that explanations covered everything. Are there any residual issues?
• if there is not enough time to address all the concerns, ask for a further meeting
• clarify next steps.

What happens if local resolution does not help?

After the exchange of correspondence and/or meetings, the complainant may still feel dissatisfied and want to take matters further. The practice or NHS Trust may also get to a point where they feel they have done all they can to answer the complaint.

The NHS complaints procedure then allows the complainant to move to stage two in the NHS complaints’ process by applying for an Independent Review by the Healthcare Commission. The complainant must ask for this within 6 months of the end of local resolution. The Healthcare Commission will take this to be the final response (or meeting) given by the practice to the complainant about their concerns. Upon receiving an independent review request, the Healthcare Commission will ask the practice to confirm that local attempts at resolution are concluded.

See: Independent Review Healthcare Commission

Complaints and the Mental Health Act

ICAS advocates may be required to work with service users who are subject to compulsory care and treatment under the Mental Health Act.

Many areas have specialist advocacy services for mentally ill clients: ICAS staff should liase with these services. New legislation under the Mental Health Act is likely to increase the number of independent advocacy services specifically for people detained under the Mental Health Act.

If the complainant wants to complain about the way a person with a responsibility under the Mental Health Act has carried out their duties they should speak to the NHS Mental Health Trust or PCT complaints’ lead. If a complainant is detained under the Mental Health Act and wants to complain because they do not think they need to be detained, the local Mental Health Review Tribunal has to consider the case.

ICAS advocates should explain the procedures for making a complaint through the NHS Complaints Procedure, and, in relation to detained patients, their rights to complain to the Mental Health Act Commission. Leaflets are available in different languages to download.

If they are not satisfied with the response from local providers, the complainant can contact the Mental Health Act Commission, who protects the rights of people detained under the Mental Health Act.

The Mental Health Act Commission will normally consider complaints only when the NHS complaints procedures have been exhausted, unless there are exceptional circumstances.

Dental and Optical Services

Dental Services

Complaints about NHS dental treatment should initially be made to the practice concerned, and go through the practice complaints procedure which covers complaints about NHS Dental treatment. The purpose of this system is to separate complaints from disciplinary procedures and to allow the patient an opportunity to discuss the problem with the practitioner concerned.
There is as yet no independent body providing a formal complaints procedure for private dental patients. Both the British Dental Association and the General Dental Council (GDC) want a formal complaints system, but its introduction requires legislation.

Complaints about dentists' behaviour or conduct
The GDC has powers under the 1984 Dentists Act to discipline dentists who fall short of the high standards expected of professional people. The complaint must be made in writing.

Complaints about improper personal, ethical or professional behaviour should be sent to The General Dental Council (GDC).

The GDC will also consider complaints about a practitioner who is so ill that they are unfit to practice. The definition of serious illness can include alcohol and drug dependency and mental illness.
If the NHS Complaints Procedures' findings indicate that the dentist may have been guilty of serious professional misconduct the case must be reported officially to the GDC.

Complaints Checklist
Make sure you include

• the complainant’s full name and address
• the full name and address of the dentist
• dates of treatment
• full details of the alleged misconduct
• attach any relevant documents.

The details of your complaint will be passed to the dentist involved.

If the GCD decides to proceed with the complaint (they will inform the complainant in writing of their decision) the case will be heard by the professional conduct committee (PCC). It can give advice or a warning to the dentist about future conduct. If the PCC decides that there is evidence of serious professional misconduct, the case will be referred to an inquiry.

The PCC must decide whether the facts alleged in the charge have been proved beyond reasonable doubt. If the facts are found proved, the PCC then decides whether or not those facts amount to serious professional misconduct. The complainant will be informed about what is happening at every step in the process.

The police have a duty to report the criminal conviction of any dentist to the GDC. The council will then decide whether the conviction constitutes professional misconduct (without re-trying the case). The GDC will also prosecute in cases of illegal dental practice by unregistered persons, such as dental technicians.

Optical Services
Opticians are qualified independent professionals who contract with the Primary Care Trust to provide certain services under the NHS.

"Optician" is often used as a general term to cover a number of professionals, who provide different types of service such as

• ophthalmic opticians (or optometrists) who examine eyes for any medical problems, test eyesight and dispense glasses
• dispensing opticians who have glasses made up, adjust frames and sell glasses, but do not carry out eye tests.

There are two main complaints associated with optical care

• the quality of the service or goods
• malpractice complaints concerning the behaviour and actions of the optician.

Complaints about optical treatment should initially be made to the optician concerned. The NHS Complaints Procedure covers complaints about NHS optical treatment in relation to

• complaints about an NHS eye sight test
• having difficulty in obtaining an NHS prescription for glasses.

If the complainant has paid in full or part for their glasses, then this is no longer an NHS issue but has become a private transaction.

If possible complainants should try to resolve the complaint directly with the optician who provided the goods or services. If this fails to resolve the problem, the complainant should contact the Optical Consumer Complaints Service (OCCS).

This is an independent body that aims to settle complaints from members of the public who are not satisfied with the goods and services they receive from opticians not provided under a NHS contract.

If the complaint relates to the conduct of the optician, then this should go directly to the General Optical Council (GOC), which has a legal obligation to promote high standards of conduct among opticians.

Complaints about an opticians' behaviour or conduct

Who can complain to OCCS?

Anyone who is receiving, or has received, goods or services from an optical practice utilising the services of an Optometrist (Ophthalmic Optician) or a Dispensing Optician registered with the General Optical Council. If a patient is unable to complain for themselves, then someone else - usually a relative or close friend - can complain for them, but in these cases OCCS will require written authority from the patient or the authorised representative before the complaint can be registered. It is also important that any complaint is made as soon as possible after the event.

Complaints Checklist

Make sure you include

• the complainant’s full name and address
• the full name and address of the optician
• dates of treatment
• full details of the problem
• attach any relevant documents

How will OCCS deal with the Complaint?

The objective, once all the facts have been established, is to arrive at a solution which will satisfy both the complainant and the optician involved.
This may involve

• a request for further information
• OCCS seeking expert advice
• a request that the complainant has their eyes examined by a practitioner appointed by OCCS. They will ask the practice complained about for full information about the case.

If that fails to resolve the problem, OCCS may refer the complaint to an independent advisor. The advisor will go through the records of the case, and may ask the complainant or the practice for additional information. With all these facts, the advisor will arrive at a considered and unbiased recommendation on the complaint. The recommendation will be given to the complainant and the practice, in writing. If this still does not resolve matters, then the complainant may want to consider legal advice.

Complaints about an opticians' behaviour or conduct

Complaints about improper personal, ethical or professional behaviour should be sent to the General Optical Council (GOC).

The GOC does not represent the opticians. It is an independent body set up by Act of Parliament to regulate the optical profession and to protect the interests of the public. It has disciplinary procedures for the investigation of alleged misconduct or malpractice by an optician.

This procedure is in two parts: first, the investigation of a complaint which is referred to the Investigating Committee. That Committee then decides whether a case ought to be referred to the Disciplinary Committee for a hearing.

The Disciplinary Committee is similar to a court of law. After hearing evidence of the complaint and any defence by the optician it decides whether there is malpractice or misconduct amounting to a disciplinary offence. If so, then the Committee determines what order to make against the optician.

This can be an order to

• strike the optician off the register
• suspend their Registration for up to 12 months
• impose a fine of up to £1,600 for each offence
  or
• strike off or suspend plus a fine.

The GOC has no power to order that compensation is made to the complainant.

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