Memorandum re Inquiry into Procedures
Related to Adverse Clinical Incidents and Outcomes in Medical
Introduction and background
Flaws pin-pointed in the NHS complaints procedure
Independent complaints investigating mechanisms
Performance of existing professional disciplinary
mechanisms in Britain
State disciplinary mechanisms in continental
The legal process and compensation mechanisms
concerning health care
It is difficult to imagine that the undoubtedly
intelligent minds responsible for establishing and developing
the NHS complaints procedure in its original form(s) seriously
believed their creation was a credible mechanism for resolving
greviances, fairly and effectively, for the parties concerned
in a complaint. Did it not occur to them that, as an internally-managed
investigating mechanism, and whatever its construction, there
would be less than an even chance of receiving the approbation
of those it was designed to help? Apparently not.
If that was not enough, the same fundamental
misconception was repeated in the Wilson report on NHS complaints
procedures published in May 1994. After meeting nine times "to
consider various aspects of NHS complaints procedures" and
having the "benefit of some 250 pieces of written evidence"
from individuals and organisations, Professor Wilson and his review
committee drew the following conclusions.
"Complainants want impartial consideration
of their complaint. Impartiality is achieved by care and accuracy
on the part of the investigator. This applies whether the investigator
belongs to the organisation concerned or is outside it. Investigation
by someone external to the organisation may appear more impartial,
but we believe this is not essential. However, public confidence
will be promoted if responses to complaints include further information
about who complainants should approach if they wish to take their
In reality, this verdict flew in the face of
suggestions received by the review committee that "complaints
against the medical profession face such a "closing of the
ranks" unless an independent element is incorporated."
The extent of this independent element is reflected in the detail
of the current NHS complaints process, and follows later in this
There are those who may consider that such conclusions
are inevitable where a predominance of written evidence received,
and used, has emanated from sources with an apparent axe to grind.
Indeed, the organisations who presented evidence to the committee
do appear to be dominated, as a group, by professional bodies,
health authorities, NHS trusts and providers. Well-represented
also, but to a lesser extent, were national organisations of various
types but largely associated with health matters; health councils;
local medical and dental committees; and a handful of others.
About ninety individiuals, including twenty-one doctors, made
up the balance of the respondents.
The end-result was that the central dubious
component of in-house complaints inquiries moved basically intact
from the previous system to the new NHS complaints prodecure which
took effect from 1 April 1996, and remains in place today.
Powerful a constituent though it clearly is,
an autonamous complaints investigation system, and the impartiality
that it conveys, is not in itself the sole prerequisite for a
credible health complaints policy. The quality and credentials
of those investigating grievances are equally essential considerations,
as are their powers and remit, towards achiefing this end. This
factor has not been given nearly enough thought in the current
model, with key investigators being appointed by the NHS Executive
and vaguely indentified with no clear pattern in terms of calibre,
credentials or experience. [Incidentally, this information (such
as it is) is not readily available for public consumption.]
NHS COMPLAINTS PROCEDURE
The mechanism is managed and investigated from
start to finish by a combination of NHS personnel, non-executive
directors of health trusts and health authorities and NHS appointees
recruited externally comprising lay conciliators, chairpersons
and clinical assessors. In this guise, the complaints procedure
may be considered by many as being heavily short on independence
and unlikely to arrive at just resolution of complaint.
Lay conciliators can be brought in by health
authority to intervene in the "local resolution" first
phase as an alternative to direct contact with a GP practice by
a complainant. In theory a good thing within the context of the
complaints procedure, but in reality this intermediary is generally
not regarded with much confidence by those lodging a grievance.
The credentials of these individuals can not only be suspect but
their origins may also be obscureeven unknown. (My own
experience of such a person is not good: here was a man of barely
moderate intelligence and intellect, his background was unidentified,
except that he had taken early retirement; he had received some
minimal training; and had been in the job for two or three months.
His line of "conciliation" was unquestioningly partisan
in a case involving a sudden fatality occurring in at least doubtful
circumstances; and he even asked me if I felt a sense of guilt
about this death. If this kind of approach is anything to do with
the form of prior training these people receive, serious questions
need to be asked as to its quality and purpose. The interview
with this "concilliator" clearly indicated an attempt
by him to dissuade me from proceeding further with my complaint
in the face of some pretty watertight facts suggesting that the
reverse course of action would have been more to the point. The
pathetic and rather silly report that followed rubber-stamped
this impression in all respects. It also showed that he was unable
to string words together in reasonable readable form, and subsequently
it became apparent to me that the health authority were somewhat
embarassed with his efforts. As a result, the convener appointed
later had no hesitation in accepting the complaint for "independent
Much more significant is the position and one-sided
power of the convener of an "independent review panel."
This officer is normally a non-executive member of the very trust
or health authority board which may be concerned in a complaint,
and on whose behalf will decide whether or not a review panel
will be set up to deal with that complaint. She/he will also be
significantly involved in the process of investigation that may
Once a convener decides to accept a complaint
for "independent review" a lay chairman is appointed
from lists developed by the NHS Executive regional office (or
its equivalent) and, in conjunction with the convener, spearheads
the complaints investigation that is to take place. The NHSE lists
from which chairs are selected are the result of advertising and
recruitment from a "broad brush" of lay people. Candidates,
we are told, may be retired individuals or employed in industry,
business, the professions or local government with experience
or report writing, assimilation of information and communication
skills. It seems there is no requirement for appropriately qualified
and experienced professionals in any recruitment driveunlike
Scandinavia as an example. (In the cases of the two "independent
review" sessions with which I was involved, one of the chairmen
was a bank manager and the other retired from local government.
For reasons of confidentiality I am not permitted to go into any
detail about the panel's verdict in either case. Suffice it to
say that these were blatantly disgraceful and the complaints have
been referred to the Health Service Commissioner.)
Even the third member of a review panel is either
a non-executive of a health authority or some other nominated
person, where a NHS trust is concerned in a complaint.
The Health Service Commissioner (Ombudsman),
the final arbiter in a complaint against a NHS practitioner, will
not consider a grievance until the complaints procedure itself
has been exhaustedwhich can be a long and debilitating
process for many complainants. Even after this there is no certainty
that a complaint will be further investigated by the HSC, with
some cases accepted while others are rejected through a screening
process. Alternatively, complaints may be referred back to the
NHS for re-appraisal and it is a return to square one.
The office of the Health Service Commissioner
in a much more developed, one-stop form with greater powers and
remit, and many more regional offices, could be a worthy successor
to the current NHS model. It will almost certainly engender greater
public confidence in complaints handling, probably take a shorter
time to evaluate and arrive at a resolution and, who knows, such
a mechanism may also cost less to run. (It would not go amiss
to look at the system in place in Norway as an example. Here the
Board of Health is represented by nineteen regional offices located
on a countrywide basis, each of which is headed by a County Municipal
There are other serious in-built obstacles confronting
complainants in the NHS complaints procedure. The research for
my book Who cares about the health victim? reflects some severe
criticism of the protracted and defensive form of complaints investigation
that is the NHS model, a process regarded by many on the outside,
including some on its fringes, to be too weighted in favour of
health and medical practitionersand of the NHS itself.
A complaint enquiry proceeding through the full
course will normally run into anywhere between a year and three
years before a resolution of one kind or another can be expected.
The problem is compounded by the fact that, by design, the process
calls for the sustained involvment of patients/complainants at
what could be one of the lowest points in their lives. [I can
confirm this from personal experience and, but for the fact that
I was able to give my case more than two years of fairly undivided
attention (not being gainfully employed for the duration), it
is more than likely that complaint would not have gone past "independent
review".] Community health councils (and their equivalent)
have a good record of being helpful to complainants. Nonetheless,
their assistance can alleviate only some of the emotional and
other pressures resulting from this long, drawn-out and often
extremely distressing process.
Negative attitudes, perceived or otherwise,
adopted by some health practitioners, and the fear of being "struck
off" can also be real if a complaint happens to involve a
GP. Further, there is some evidence pointing to an abiding suspicion
of the medical profession when a complaint is involved, and a
belief that its members will "cover" for one another,
and that you can't "buck the system". (In my experience
of two "independent review" sessions the GP assessors
were indeed defensive, evasive and closed ranks with the practitioner
being complained againstin the face of some pretty open-and-shut
facts which were ultimately confirmed in the findings of the review
Austria, Denmark, Finland, Norway, Sweden and
the States and Territories of Australia operate independent complaints
investigating mechanisms. With the exception of Austria, the complaints
bodies of all these countries are open, in most cases, to complainants
regarding health care in both the public and private sectors.
In continental Scandinavia complaints investigations
have a strong legal component with all panels or committees spearheaded
by experienced legal professionals. Indeed, in the cases of Sweden
and Denmark, the chairman of a panel must be (or have been) a
high court judge, or possess the qualifications and experience
to be onea facet our legislators need to seriously consider
in any future replacement to the present complaints system.
The effectively one-stop complaints procedures
established in Scandinavia and Austria predictably give rise to
speedier resolution of grievances than is the case in the UK's
NHS model; and the mechanisms as a whole appear to receive general
approval in those countries.
On this equally consequential issue, the unimpressive
records of regulatory bodies like the GMC and UKCCand their
close association with doctors and nurses respectivelyseem
to be powerful enough reasons for the introduction by the country's
legislators of a statutory, independent disciplinary mechanism
to oversee and investigate allegations of professional negligence
and misconduct. Scandinavia and The Netherlands have long seen
fit to follow this course, and there may well be one or two others
who have recently entered the frame.
Recent warning sounds by the government suggesting
that the GMC could be replaced by a sate disciplinary authority
if strong sanctions for poor performance are not put in place
may well be regarded as a positive step in the context of self-regulation.
But it could be seen as a convenient way of evading the prospect
of independent jurisdiciton. A remodelled GMC is unlikely to materially
succeed in dispelling its poor public perception and its capacity
to investigate complaints against doctors. The same will equally
apply to the UKCC and, perhaps, to other parallel medical institutions.
Another problem about the existing system is
the remit of disciplinary powers exercised by these bodies, which
seem to be framed to exclude all but the most serious allegations
of professional negligence or misconduct. For instance, the Professional
Conduct Committee of the UKCC (whose members' registration fees
fund their work) have statutory powers to deal only with cases
which are serious enough to warrant removal from the register,
and are also supported by evidence to prove any allegations beyond
a reasonable doubt. Otherwise, complaints will not get past the
Preliminary Proceedings Committee first stage. The role of the
GMC seems to be similarly restricted, and the same may also apply
to other such professional regulatory organizations.
In any event, medical disciplinary bodies in
Britain have had all the time in the world to get their act together
and have singularly failed to do so. This failure is evidence
in some particularly serious cases which have recently surfaced
and, as a result, have been the cause of much public outcry. The
GMC's proposed re-validation scheme, under which there could be
periodical checks on the fitness of doctors to practise, is clearly
a positive move in the present situation. Unfortunately, it addresses
only a small, albeit significant, part of a much bigger problem.
There is nothing special about British medical
practitioners, as distinct from those in some other advanced countries,
which can justify self-regulation. Indeed, as already stated,
the records of their regulatory bodies are not considered to be
exemplary, with accusations abounding of clinical investigators
closing ranks with those against whom complaints have been made.
So, why should we have to accept second best from our health providers?
Denmark, Finland, Norway, Sweden and, it seems,
The Netherlands have all established state professional disciplinary
mechanisms with powers leading up to and including revocation
of a licence to practise, that is being struck off the medical
register. (The subject is described in greater detail in my recently
published book, a copy of which was sent to the Chairman of the
Health Committee earlier this year.) It is likely that one or
two other countries have lately set up similar regulatory bodies.
With civil litigation the only route for seeking
compensation in the UK, there are many who are excluded from the
process simply because they cannot afford the expense. Even those
who may feel that they are eligible for civil legal aid will discover
that the rules are very tight and can involve major financial
contribution towards legal costs. As a result, none but the very
poorest in society is allowed access to this facility. Quite apart
form the financial considerations, civil action can often extend
over years bringing further pressures to bear upon the parties
concerned in a case.
Once again, Denmark, Finland, Norway and Sweden
and, it seems to some extent Austria and Spain, have grasped the
nettle by introducing cost-free replacement/alternative compensation
mechanisms which, in some cases, are open to both public and private
The internal nature of the NHS complaints procedure,
and the absence of meaningful redress when a complaint is found
to be justified, probably encourage unacceptable professional
attitudes and practicejust like any other inappropriately
regulated major area of activity. And the lack of independence
in medical disciplinary investigations merely adds to the problem.
As a consequence, there are practitioners who seem to think they
can get away with almost anythingand sometimes do.
A change to autonamous mechanisms will not only
engender public confidence, reflecting a probable reduction in
the incidence of complaints going to litigation, often as a first
resort, but it may also result in higher professional standards.
On another associated issue, complaints can
arise as a result of medical mishaps in comparatively poorly-equipped
hospitals, with medical pesonnel of not the same calibre as those
in district general hospitals. These refer to community hospital
and, pershaps, GP hospital which are often located some distance
away from the district general hospital.
In these circumstances, the lives of patients
requiring emergency expert care can be put at risk before and
during the transfer to the more appropriately equipped unit. There
are patients with serious medical conditions who are routinely
admitted by GPs to these secondary hospital in the first place.
Whatever the reasons, this cannot be right. (These observations
are drawn from personal experience.)
The subject of patients' rights, some of which
is to form part of the Health Committee enquiry, has not been
covered as such in this report because doing so would be a lengthy
More than ninety per cent of the content of
this report appears in my book where it is much more comprehensively
portrayed. The book was published in December 1998.