A brief explanation of the law relating to clinical negligence and taking legal proceedings is set out in another briefing called Clinical Negligence.
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 a complaint will not be investigated by the relevant body if legal proceedings have been commenced.
There is now a single complaints system for all health and adult social care services. This came into effect on 1 April 2009. The new procedure is set out in the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009.
The new system covers complaints against Local Authorities, NHS hospitals, Primary Care Trusts and independent providers. GP practices are incorporated into Primary Care Trusts. These are known as “responsible bodies”.
Under the new procedure, each responsible body must make arrangements for dealing with complaints. These arrangements must ensure that:
Each responsible body must designate a person to be responsible for ensuring compliance with the complaints procedure. In the case of a Local Authority or NHS body this will be the chief executive. The responsible body must also designate a person to be a complaints manager to be responsible for managing the complaints procedure.
A complaint can be made by a person who receives or has received services from a responsible body or by a person who is affected or is likely to be affected by the action, omission or decision of the responsible body which is the subject of the complaint. A person can make a complaint on behalf of a person who has died, is a child, is unable to act because of physical or mental incapacity or if they have been asked to do so by that person.
If a complaint relates to services provided by more than one responsible body, the different organisations must co-operate with each other in handling the complaint and ensuring that the complainant receives a co-ordinated response. Each body must provide the other with relevant information and attend at any meetings which are reasonably required. Where a Local Authority considers that a complaint relates to care home standards, it must obtain the consent of the complainant before it contacts the relevant care home. If the complaint relates to social care, consent is required before details can be sent to the social care provider.
The time limit for making a complaint is 12 months from the date on which the relevant matters occurred or the date on which the matter came to the notice of the complainant. This time limit does not apply if the responsible body is satisfied that there were good reasons for not making the complaint earlier and it is still possible to investigate the complaint properly.
In many cases a problem can be dealt with quickly by speaking directly to the person involved in providing the medical treatment or care services, without the need to make a formal complaint. However, if the matter cannot be dealt with in this way then it will need to be investigated as a complaint.
A complaint can be made orally, in writing or electronically. Where the complaint is made orally, the responsible body must make a written record of the complaint and provide a copy to the complainant. The responsible body must acknowledge the complaint within 3 working days after the date of receipt. The responsible body must offer to discuss with the complainant the way in which the complaint is to be handled and the period within which the investigation is likely to be completed and a response sent. If the complainant does not wish to discuss this, the responsible body must decide itself.
The responsible body must investigate the complaint as quickly and efficiently as possible and keep the complainant informed of progress. As soon as reasonably practicable after the end of the investigation, the responsible body must send the complainant a written response which must include an explanation of how the complaint has been considered and the conclusions reached. The responsible body must also confirm that it is satisfied that action needed has been taken or will be taken. In addition, the complainant must be informed of their right to take their complaint to the Health Service Ombudsman and/or the Local Government Ombudsman if they are not satisfied with the outcome. If the responsible body fails to send the complainant the response within 6 months of the date the complaint was made, it must explain why and send a response as soon as reasonably practicable thereafter.
In England, if the above procedures fail to resolve a complaint about health care, a complainant may appeal to the Health Service Ombudsman (officially called the Parliamentary and Health Service Commissioner). If the complaint also concerns social care then the Local Government Ombudsman will jointly review the case (see below). 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 single 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:
Where the Ombudsman finds serious faults with the organisation they can also recommend that:
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 Parliament:
The Ombudsman can be contacted at:
Parliamentary and Health Service Ombudsman
Millbank Tower
Millbank
London
SW1P 4QP
Tel: 0845 015 4033
Email: phso.enquiries@ombudsman.org.uk
Website: 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
Tel: 01656 642150
Email: ask@ombudsman-wales.org.uk
Website: 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
Tel: 0800 377 7330
Email: ask@spso.org.uk
Website: www.spso.org.uk
If the above procedures fail to resolve a complaint in respect of social care services, a complainant may appeal to the relevant Local Government Ombudsman. If the complaint also concerns health care then the Health Service Ombudsman will jointly review the case (see above). There are 7 Ombudsmen for different regions in England and 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:
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.
In England, Patient Advice and Liaison Services (PALS) have been established in every Hospital Trust and Primary Care Trust. PALS can provide information and discuss options with you about how your complaint can be resolved. Some complaints can be taken up by PALS on your behalf and resolved to your satisfaction. Other complaints may require an investigation to be carried out, subject to the nature of your complaint. In either case, PALS is a good starting point. You can locate your local PALS at www.pals.nhs.uk.
An Independent Complaints Advocacy Service (ICAS) has also been set up to help patients pursue formal complaints. You can contact ICAS on 0800 317220.
The Care Quality Commission started work on 1 April 2009 and brings together the responsibilities which were formerly exercised by the Healthcare Commission, the Commission for Social Care Inspection and the Mental Health Act Commission. It is the independent regulator of health and social care in England. The Commission does not become directly involved in unresolved complaints but has a role in overseeing arrangements for handling complaints by health and social care organisations. The Commission also 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 and to visit and interview detained patients. It will also help detained patients with their complaints and 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. The Commission publishes a report every two years on its activities.
For general enquiries the Commission can be contacted on 03000 616161 (enquiries@cqc.org.uk). If the matter relates to a patient detained under the Mental Health Act the Commission can be contacted at:
Maid Marian House
56 Hounds Gate
Nottingham
NG1 6BG
Tel: 0115 943 7100
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.
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.
Information about Mind's legal unit
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
June 2009