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Legal briefing: How to complain about Health and Social Care
This briefing describes how an individual or their representative can make a complaint about their health and social care treatment in England. The procedure in Wales is different. This briefing covers the following:
- Overview
- Complaints against Hospital Trusts and Primary Care Trusts and the role of the Health Service Ombudsman
- Patient Advice and Liaison Services
- The functions of the Mental Health Act Commission
- Complaints to the General Medical Council and other professional bodies
- Complaints against Local Authorities and the role of the Local Government Ombudsman
- Further information
A brief explanation of the law relating to clinical negligence and taking legal proceedings is set out in another briefing called Clinical Negligence.
1. Overview
Legal proceedings can be very costly and time consuming. The complaints procedures explained in this briefing note can be a more appropriate remedy and can be used for complaints which do not necessarily amount to actual negligence. Also, in some cases people affected do not require financial compensation but would prefer an apology or an explanation as to why something went wrong.
Complaints procedures can also be used before commencing legal proceedings. However, it should be noted that neither the NHS nor the Ombudsman service will investigate a complaint if legal proceedings have been commenced.
Where a complaint relates to both a Local Authority and an NHS Trust, the two organisations must co-operate to co-ordinate a response if they have the permission of the complainant.
2. Complaints against Hospital Trusts and Primary Care Trusts and the role of the Health Service Ombudsman
There is a single procedure for complaints against NHS hospitals and GP practices. GP practices are incorporated into Primary Care Trusts.
All NHS Trusts must make arrangements for handling and considering complaints and must ensure that these are accessible by patients. A copy of the arrangements must be given to any person who requests one.
All Primary Care Trusts should also make arrangements to provide conciliation services in primary care complaints. NHS Conciliation is a method of facilitating a dialogue to resolve an issue, using a third party as an intermediary, and is part of the Local Resolution procedure described below. In practice, many other NHS bodies use conciliation as a useful way of dealing with problems quickly.
A number of Hospital Trusts have established their own mediation and conciliation services, which can be helpful in resolving disputes. These are not, however, available everywhere.
Local Resolution
The first stage of the NHS complaints procedure is called "Local Resolution". Your complaint should be made in the first instance to the hospital or primary care practitioner providing the service. It is important to make the complaint as soon as possible after the event. The NHS is only required to investigate complaints which are either made within 6 months of the event or within 6 months of the patient becoming aware that there is a matter to complain about. There is a discretion to investigate a complaint made after this period if there are good reasons why the complaint was not made in time. However, Trusts will not normally consider complaints made more than a year after the incident.
Complaints can be made in writing or orally (though it is advisable to keep a written record of when the complaint was made).
The complaint can be made to any member of staff of the NHS Trust, which is the subject of complaint. In practice it is always advisable to make a complaint to the Complaints Manager or the Manager of the Service about which you are complaining. Where the complaint is made orally, the Complaints Manager must make a written record of the complaint, including the name of the complainant, the subject matter of the complaint and the date on which it was made. Where the complaint is in writing, the Complaints Manager must make a written record of the date it was received.
Every person has the right to receive a full and prompt written reply and the Complaints Manager must acknowledge the complaint.
In many cases the problem can be solved straight away. However, if the problem cannot be resolved immediately, then in the case of a Hospital Trust, you should receive a full response from the chief executive within 25 working days. In the case of a Primary Care Trust, you should receive a full response from the practitioner concerned within 10 working days. You should be kept informed of progress if this is not going to happen.
NHS Foundation Trusts have their own systems for the internal handling of complaints, which may differ from the Local Resolution procedure described above. If you have a complaint about an NHS Foundation Trust, you should contact the Trust for advice on how to make your complaint. Other local family health service practitioners such as dentists, pharmacists and opticians also have their own complaint procedures.
The NHS body concerned should address the problem using the most appropriate means. It may be possible to resolve the matter informally, particularly where the complaint was made verbally. In other cases, a letter (usually from the chief executive) may be sufficient. Complaints can also be resolved at face-to-face meetings (it is important not to prejudice your case by refusing a meeting). Conciliation may also be offered as a way to resolve a problem using an independent third party as a facilitator. In any event, the complainant is entitled to a written report of the result of the investigation.
You can find more information about the NHS complaints procedure at www.nhs.uk/england.
If you are unhappy with the outcome of your complaint, including a complaint about an NHS Foundation Trust, you can ask the Healthcare Commission for an "Independent Review" of your case.
Healthcare Commission
The Healthcare Commission is an independent body established to promote improvements in healthcare. Anyone who is not happy with the way their complaint has been handled by the NHS can apply to the Healthcare Commission to have their complaint considered. Complaints should be made within two months of the date the complaint was considered by the relevant NHS body.
You should submit a request for a review in writing. The request should contain your name and address, details of the complaint, and all relevant correspondence between you and the NHS Trust.
When the Commission receives a complaint it will appoint a Case Manager who will send a letter of acknowledgement to the complainant. The Case Manager will then ensure that they have all the information they need to carry out an initial review. The initial review will take ten days from when the Case Manager has received all the necessary documentation about the complaint.
The Case Manager can decide that the complaint is not eligible for consideration, take no further action, refer the complaint back to the healthcare provider or another body (such as the General Medical Council or Health Service Ombudsman) for further action or carry out a full investigation. If you are unhappy about the outcome of the initial review, you can complain about the decision to the Health Service Ombudsman.
If the Case Manager decides to investigate the complaint, they will finalise the matters for investigation. They will then ask for independent expert evidence and interview people connected with the dispute. When the investigation is completed, a draft report will be prepared and circulated for comment. The final report will then be distributed. This will include the recommendations of the Case Manager. These recommendations are similar to those which can be made following an initial review. The investigation will normally be completed within six months.
If the Healthcare Commission finds fault with the organisation it can ask for the following:
- an explanation and acknowledgement of any failings identified;
- action to resolve a complaint which may include an apology; or
- changes in the way a healthcare provider carries out its work so similar things don’t happen again.
Please note that the Healthcare Commission does not provide compensation.
You can contact the Commission at:
Healthcare Commission
FREEPOST NAT 18958
Complaints Investigation Team
Manchester M1 9XZ
T: 0845 601 3012
e: complaints@healthcarecommission.org.uk
w: www.healthcarecommission.org.uk
If you are unhappy with the decision made by the Commission, you can refer your case to the Health Service Ombudsman.
Health Service Ombudsman
In England, if the above procedures fail to resolve the problem a complainant may appeal to the Health Service Ombudsman (officially called the Parliamentary and Health Service Ombudsman). The Ombudsman is entirely independent of the NHS and of the Government. The Ombudsman is not obliged to investigate every complaint referred to him or her and will not generally take on a case which has not been through the NHS complaints procedure. He or she will not investigate a complaint which is the subject of legal proceedings. Strict time limits apply. In particular a complaint must be made within 12 months of the date of the relevant events unless there are special reasons for the delay.
The Ombudsman can investigate complaints about poor treatment or service provided through the NHS.
If the Ombudsman does find a fault has occurred with your case then they can get the organisation to:
- provide an explanation and acknowledgement of what went wrong; and
- take action to put the matter right, including giving you an apology.
Where the Ombudsman finds serious faults with the organisation they can also recommend that:
- changes are made in the way the organisation works so that similar things don't happen again;
- lessons are learnt from things that have gone wrong; and
- compensation should be made for a financial loss or for the inconvenience or worry you have been caused.
Please note that the Ombudsman does not have any formal power to enforce their recommendations but they are almost always followed.
The Ombudsman can be contacted at:
Parliamentary and Health Service Ombudsman
Millbank Tower
Millbank
London
SW1P 4QP
T: 0845 015 4033
e: phso.enquiries@ombudsman.org.uk
w: www.ombudsman.org.uk
In Wales, if the initial procedures fail to resolve the problem a complainant may appeal to the Public Service Ombudsman for Wales. The Ombudsman can be contacted at:
Public Services Ombudsman for Wales
1 Ffordd yr Hen Gae
Pencoed
CF35 5LJ
T: 01656 642150
e: ask@ombudsman-wales.org.uk
w: www.ombudsman-wales.org.uk
In Scotland, the Scottish Public Services Ombudsman deals with health service complaints. The Ombudsman can be contacted at:
Scottish Public Services Ombudsman
4 Melville Street
Edinburgh EH3 7NS
T: 0800 377 7330
e: ask@spso.org.uk
w: www.spso.org.uk
3. Patient Advice and Liaison Services
In England, Patient Advice and Liaison Services (PALS) have been established in every Hospital Trust and Primary Care Trust. PALS are not part of the NHS complaints procedure itself but they can help resolve concerns informally and provide information about the complaints procedure. They can also provide details of advocacy services. An Independent Complaints Advocacy Service (ICAS) has also been set up to help patients pursue formal complaints. You can contact ICAS on 0800 317220.
4. The Mental Health Act Commission
The Mental Health Act Commission has a number of functions relevant to people who are liable to be detained under the Mental Health Act 1983. The main functions of the Commission are to keep under review the exercise of the powers and duties contained in the Act, to visit and interview detained patients and to investigate complaints. Commissioners regularly visit each hospital which has detained patients. The Commission also appoints medical practitioners for the purposes of providing second opinions, submits proposals on certain forms of treatment and makes comments and recommendations on the Code of Practice. It publishes a report every two years on its activities.
There is some overlap between the complaints jurisdiction of the Commission and that of the Health Service Ombudsman. Therefore, if the complaint relates primarily to the circumstances or consequences of detention, the Mental Health Act Commission will intervene first; if the complaint is about other matters, then the Health Service Ombudsman is responsible for conducting an investigation.
The Mental Health Act Commission is based in Nottingham and can be contacted on 0115 943 7100.
The Government has decided to create one body to regulate all health and social care. It is intended that the new Care Quality Commission will bring together the roles of the Healthcare Commission, the Commission for Social Care Inspection and the Mental Health Act Commission with effect from March 2009.
5. Professional bodies: the General Medical Council, the Nursing and Midwifery Council and the General Social Care Council
Allegations of professional misconduct made against individuals (including negligence) can be addressed to the relevant professional body responsible for that individual. In the case of doctors the responsible body is the General Medical Council. The function of the GMC is to ensure that its members, the doctors and consultants, are abiding by its rules and codes of conduct. Its function is to discipline members if necessary; it does not award damages. Other professions have their own governing bodies, for example the Nursing and Midwifery Council for the nursing profession and the General Social Care Council for social workers. Their primary purpose is also to regulate their professions and ensure that members abide by their codes of conduct. As such their powers are essentially disciplinary.
6. Complaints against local authorities
A new complaints procedure for Local Authorities in England was introduced on 1 September 2006. The procedure is similar to the NHS complaints procedure.
A person can complain about any failures by their Local Authority towards them. This includes any disputed decision, concern about the quality or appropriateness of a service or attitude or behaviour of staff.
There are three stages for the handling and consideration of complaints: Stage 1 - Local Resolution, Stage 2 - Investigation and Stage 3 - Review Panel.
Stage 1: Local Resolution
If you have a complaint the Local Authority should try to resolve it through the line manager of the team that has been dealing with you.
You can make a complaint orally or in writing (though it is advisable to keep a written record of when the complaint was made). It should be made as soon as possible after the problem or dispute.
Once the Local Authority receives the complaint it should send you a copy of the complaints procedure. However, Local Authorities do not need to consider complaints made more than one year after the date of the event that gave rise to the complaint, although they do have a discretion to waive the time limit.
The Local Authority should try to resolve the matter within a 10-day period. The Local Authority can extend this period by 10 days, but must inform you of the extension. If the maximum 20 day time period has expired and you have not received a response you can move on to Stage 2. In addition, if you are not satisfied with the Local Authority’s response you have 20 working days from the date of the response to request a consideration by an Investigations Officer.
Stage 2: Investigation
Every Local Authority should have a Complaints Manager. The Complaints Manager should ensure the details of the complaint are recorded, arrange a full investigation, appoint an Investigation Officer and prepare a written report.
The investigation should be completed and a response given to you within 25 working days from receipt of the request for the investigation. There are some circumstances when this period can be extended. The investigation stage can be extended for a maximum of 65 working days.
At the end of the investigation a report should be written with the findings, conclusions and recommendations. The report will be passed to the Local Authority, who will in turn prepare a response or arrange a meeting with you and all the other parties involved.
If you are dissatisfied with the outcome of your complaint you can ask for it to be considered further by a Review Panel.
Stage 3: The Review Panel
Review Panels are designed to consider whether a Local Authority has dealt with a problem adequately. The Review Panel must be held within 30 days of the request for a hearing. You are entitled to attend the hearing together with all other interested parties and you can make representations to the Panel. The hearing will be conducted as informally as possible.
The Panel will make its recommendations and forward it to all interested parties within 5 working days. The Local Authority must respond to the Panel’s findings within 15 working days of receiving the Panel’s report.
Local Government Ombudsman
If the above procedures fail to resolve the problem you may appeal to the relevant Local Government Ombudsman. There are 7 Ombudsmen for different regions in England and 1 for Wales. Their official titles are "Commissioners for Local Administration". The Ombudsman is entirely independent of the Local Authority and of the Government.
The Ombudsman is not obliged to investigate every complaint referred to him or her and will not generally take on a case which has not been through the Local Authority complaints procedure nor will he or she investigate a complaint which is the subject of legal proceedings. Strict time limits apply. In particular, a complaint must be made within 12 months of the date of the relevant events unless there are special reasons for the delay.
The Ombudsman can investigate complaints that a Local Authority has not provided a service which it has a duty to provide, that there has been a failure in providing a service or that there has been maladministration connected with action taken by or on its behalf.
If the Ombudsman does find that something has gone wrong with your case then they can request that the organisation:
- take action to put the matter right, including giving you an apology;
- make a decision that should have been made before;
- improve its procedures so that similar problems do not happen again; and
- make payment for financial loss or for the inconvenience or worry you have been caused.
Although the Ombudsman does not have any formal power to enforce recommendations they are almost always followed.
If you wish to make a complaint to your Local Government Ombudsman you can contact the advice line on 0845 602 1983 and request a copy of the complaints procedure. Alternatively, you can locate your Local Government Ombudsman on the website at www.lgo.org.uk.
In Wales, if the initial procedures fail to resolve the problem a complainant may appeal to the Public Service Ombudsman for Wales.
7. Further information
This legal briefing relates only to the law and procedure of England in force at the time of writing. It is a brief outline of the law and is not a substitute for detailed advice.
For further information about the work of Mind's legal unit, please refer to our information sheet, Introduction to the Legal Unit. This is also available in hard copy (T: 020 8519 2122).
For more detailed advice on any of the issues discussed in this briefing you should take advice from a solicitor specialising in this area of the law. Details of where to seek specialist advice can be obtained from the Law Society (www.lawsociety.org.uk, telephone 0870 606 2555) or from Community Legal Advice (www.communitylegaladvice.org.uk, telephone 0845 345 4345). Alternatively, you could contact your local Law Centre or Citizens Advice Bureau, who may be able to help.
Michael Konstam
Legal Unit
Mind
Granta House
15-19 Broadway
London E15 4BQ
May 2008
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