Local resolution: secondary care

All services and activities carried out by Trusts, including research and training, are covered by the NHS Complaints Procedure.

Foundation trusts and complaints

NHS Foundation Trusts will have their own systems for the internal handling of complaints at the local resolution stage, which may differ from the local resolution procedure outlined in the regulations, including separate arrangements for performance management.

However, where a complainant is unhappy with the outcome of any investigation of their complaint by an NHS foundation trust, or the NHS foundation trust has no local complaints procedure in place, the complainant can ask the Healthcare Commission for an Independent Review of their complaint.

See: Independent Review Healthcare Commission

Complaints about availability of services and treatments

The potential subject of a complaint is wide and not just related to medical care. Patients and members of the public may want to complain about the availability, or lack of services, treatments and medications which a Trust provides, rather than about a specific incident. A complaint may be made through the NHS complaints procedure about a decision taken by an NHS body April 25, 2007 will still be dealt with by the Complaints Manager in the relevant Trust.

The complaint may be referred to the Primary Care Trust if the issue is commissioning of services, as this is a PCT responsibility.

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 were worried about the level of cleanliness at their local hospital

Designated complaints manager

Under the NHS Complaints Procedure, all NHS Trusts must have a designated Complaints Manager. The responsibility for the actual investigation and response to a formal complaint will fall to the relevant service managers and the Complaints Manager in the NHS Trust. There should be information on display at the NHS Trust on how to complain and who to complain to. The complaints manager does not have to be an employee of the NHS body and may act as Complaints Manager for more than one NHS body.

Patient Advice and Liaison Services (PALS)

All NHS 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 offer assistance in putting together a statement of complaint. If the complainant needs help with phoning or letter writing then the ICAS advocate should make a cross referral back to PALS.

ICAS should only provide that kind of support when the complaint moves into a formal stage. If the complainant has been referred early and there is room for early resolution, ICAS should only provide support with phoning or letter writing (at the request of the client)

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

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.

Is it possible to resolve the complaint without going through the formal procedure?

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.

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 PALS service or complaints manager at the NHS Trust. They may be able to deal with the matter quickly and informally.

When the complaint is made verbally, the complaints manager has to make a written record of the complaint which includes 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 complaints manager must send a copy of the complaint and the acknowledgement to any person identified in it as the subject of the complaint.

When to put things in writing

If this does not resolve the problem, the complainant should put the complaint in writing to the complaints manager at the NHS Trust. If the complainant does not want to write a letter, they can telephone the complaints manager and tell them about what happened.

If the complainant needs help with telephoning then the ICAS advocate should make a cross referral to PALS. ICAS should only provide that kind of support when the complaint moves into a formal stage, unless

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

The complaints manager should write down the details of the complaint and check back with you and the complainant that they are accurate.

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 NHS Trust, the complaints manager is responsible for ensuring that the complaint is fully investigated.

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’ manager
• ensuring they are kept informed of progress.

The 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.

If the investigation takes longer, the complaints manager should keep the complainant regularly informed of progress and the reasons for the delay. The Regulations stipulate that the 25 day deadline can be extended, but only by agreement with the complainant. In cases where the NHS body concerned considers it appropriate to seek an extension of the time limit, for example because of the complexity of the case, they should contact the complainant to invite their agreement, explaining the reasons for the request.

Access to patient records

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

What if there is evidence of professional misconduct?

Some complaints will identify information about serious matters. The NHS 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.

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 complaint.

This reference may 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 five working days, the complaints manager will discuss this with the complainant and agree a new date for response. No pressure must be placed on the complainant to agree the extension but the complaints manager may, in suitable cases, consider it appropriate to explain that a comprehensive response may not be possible to achieve within 25 days. The key considerations are whether an extension will genuinely enable local resolution of a complaint to be achieved, and that the complainant is involved in the discussion.

The response should provide 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.

All the points raised in the complaint should be addressed.

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 should also refer to the complainant’s right to take the complaint to the Healthcare Commission.

Spend some time making sure the letter or response has covered all the points made in the original letter of complaint, and that their summary/ explanation of events corresponds to your complainant’s. Sometimes staff can feel defensive about being complained about and overlook important aspects of what has happened.

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. The complainant’s perception of fairness may be undermined if the response only comes 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 NHS 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.

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.

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.

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 NHS Trust may suggest conciliation if this seems appropriate. Complainants themselves can also ask for a meeting and or conciliation. 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 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 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

Foundation trusts and complaints

The amended Regulation broadens the remit of the Healthcare Commission in respect of complaints relating to NHS foundation trusts to bring it into line with complaints about NHS bodies. It enables the Healthcare Commission to investigate both patient and non-patient complaints arising from NHS Foundation Trusts. This gives consistency in the type of complaints the Healthcare Commission can investigate across NHS trusts and NHS foundation trusts.
The Healthcare Commission can consider a complaint which

(a) is made by a patient or any other person who is affected by, or likely to be affected by, the action or omission of the NHS foundation trust which forms the likely subject matter of the complaint; and
(b) is reasonably connected with the provision of health care or other services to patients by or for the NHS foundation trust.

The request must be received by the Healthcare Commission within six months (or, if this is not possible, as soon as reasonably practicable) of the outcome of the response from the foundation trust.

The amended regulation also replaces the Healthcare Commission’s obligation to send copies of all complaints about foundation trusts to the Independent Regulator of NHS Foundation Trusts, Monitor, (external link) with a regular reporting requirement. It enables the Healthcare Commission to send copies of complaints to the Independent Regulator, provided it has the consent of the complainant, either of its own volition, or at the request of the Independent Regulator.

The Healthcare Commission will supply Monitor with monthly data reports about all complaints relating to foundation trusts that have been referred for independent review. From these reports, Monitor may request further information about specific complaints. The Healthcare Commission will request permission from the complainant to release this information to Monitor and, where this is forthcoming, copy the complaint and the final independent review report to Monitor.

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 complaints manager at the NHS Mental Health Trust. 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.

Next: Health and social care

to top of page