Complaints and Litigation - Health Committee Contents

2  The NHS complaints system

Overview of the NHS complaints system

5. It is not the Committee's intention to give a comprehensive history of the NHS complaints system, as this can be found elsewhere.[3] The Committee notes however that the first comprehensive complaints system for the NHS was introduced in 1996, replacing a highly fragmented system where NHS organisations had their own approaches to complaints handling. Since then, the complaints system has largely maintained and built upon the core principles that complaints should, where possible, be resolved by the organisation concerned to enable speedy investigation, organisational learning and resolution to the satisfaction of the complainant.[4]

6. Where complaints are not resolved locally, independent review of a complaint has also been available for some time, albeit in a number of different guises. In 2003 the independent review stage was handed to the predecessor body of the Healthcare Commission.[5] Throughout these changes, the role of the Health Services Commissioner (or the Health Service Ombudsman as it has become known) has continued to provide the final stage of the complaints system. Where complainants failed to achieve resolution either locally or through independent review, the Ombudsman has, within certain parameters, offered another opportunity to investigate and resolve complaints.

7. In addition to the complaints system, further reforms were proposed following a number of inquiries into failings in the NHS. Most notable of these were the Neale Inquiry[6] (set up following the poor standards of care delivered by former gynaecologist Richard Neale) and the Ayling Inquiry[7] (following the conviction in 2000 of former GP Clifford Ayling on 12 counts of indecent assault). These inquiries directly led to the establishment by the Department of Health of Patient Advice and Liaison Services (PALS) and Independent Complaints Advocacy Services (ICAS), both of which will be considered in more detail later in this report.

8. The complaints process is underpinned by statutory instruments and by the NHS Constitution. The Constitution guarantees that patients have the right to a proper investigation of their complaint, to know the outcome of this, to take their complaint to the Health Service Ombudsman should they not be satisfied, to make a claim for a judicial review if they have been unlawfully dealt with and to be compensated for any harm done.[8]

9. In her 2005 review of the NHS complaints system, the Ombudsman found that a number of actions were required in order to improve complaints handling in the NHS. These included the establishment of a clear set of national standards to be adhered to by all providers of NHS care and treatment, the requirement for regulators to ensure that providers are meeting these core standards, the integration of the health and social care complaints systems and the development of alternatives to in-practice resolution of complaints about GPs.[9]

10. The current NHS complaints system was created in 2009 and is, to a degree, based on the Ombudsman's recommendations. Patient Advice and Liaison Services were retained in order to offer immediate advice to complainants and to support early resolution of complaints, and Independent Complaints Advocacy Services were also retained to offer information, advocacy and support. A simplified two-stage process was created, and the intermediate stage of the process (independent review by the Healthcare Commission) was abolished in order to speed up resolution of complaints. Additionally, the NHS and social care complaints systems were integrated for the first time.

11. The Committee has heard evidence that the new approach to complaints in the NHS is an improvement on the previous system, which had been seen as taking too long to achieve resolution for patients. The Ombudsman told the Committee:

I believe very strongly that the new system is well designed and has the potential to produce quicker, simpler, better outcomes and better feedback than anything in place before now.[10]

12. In their written evidence to the Committee, the providers of complaints advocacy services have stated that:

Satisfaction with the outcome of local resolution has increased over the last four years, with over 70% of clients happy with the outcome in 2009/2010 compared to 45 -56% in 2006/2007.[11]

13. The Committee welcomes the improving level of satisfaction with the local resolution process for complaints, but finds that the Government can still do more to improve patient experience of the complaints system.

14. Despite improving satisfaction with local resolution, the Committee has heard evidence that full implementation of the new complaints system has not yet been achieved. Mrs. Hazeldine told us:

[…] it is soul-destroying to follow the current complaints system that we have, I feel. It may be a very good system, but it is only as good as the hospital that is implementing it. If they are not following their own systems, it is incredibly difficult for a lay person to then challenge them.[12]

15. Mrs. Hazeldine's experience is unfortunately not unique. Complaints advocacy services are independent of the NHS and support people throughout England who wish to make complaints about NHS organisations. Their view of the implementation of the new complaints system is clear:

The experience of our advocates is that early adopter Trusts, all of whom received considerable additional support to introduce the new system, have made significant improvements. Many other Trusts still lag behind and continue to frustrate people who want only to be heard and for Trusts to learn from their experiences. The lesson is that the new system has much to commend it - but too many organisations cannot or will not implement it properly without support and oversight.[13]

16. The Committee is clear that the current two-stage model of the complaints system has the potential to give speedy resolution of, and earlier learning from, complaints. However, there is still a considerable amount of work to do in order to fully implement the system throughout England.

17. The Committee takes the view that the two year period since implementation of the new system should give the Government sufficient data to undertake a review and to make improvements. The Committee endeavours to support this process with this report.

Local resolution

18. The first step in the NHS complaints system is termed the "local resolution" stage. This entails the individual complainant raising their complaint directly with the individual practitioner, with the NHS organisation concerned, the commissioner of the service or with the organisation's complaints manager. Most complaints in the NHS are resolved in this manner and financial compensation is not ordinarily available in locally-resolved cases. Complaints are normally made in writing, and if made orally, are to be logged in writing by the person taking the complaint.[14] Complainants should expect an efficient and effective investigation and a timely response.[15] Responses usually come in the form of a report which details how the complaint was considered, conclusions and remedial actions (or "action plan"). The complaints regulations were clarified in 2010 to ensure that complaints made orally and not resolved within one working day are logged formally as complaints.[16]

19. Those complaints that are not resolved at this stage can be referred by the complainant to the Health Service Ombudsman. The Ombudsman can investigate all aspects of NHS care including failures in service by the NHS or maladministration by or on behalf of an NHS body. Complaints about the performance or fitness to practice of individual practitioners can also be referred to their relevant professional body e.g. the General Medical Council or the Nursing and Midwifery Council.

20. Prior to the introduction of the new complaints system, the number of complaints received about the NHS was growing at a somewhat steady rate of 1.1% per year. The total volume of complaints was standing at 89,139 in 2008-09 and there had been a significant (11%) increase seen in complaints about general practice and dental health services.[17] 2009-10 was the first full year of operation of the new NHS complaints system; in that year complaints rose by 13.4%, to 101,077, the biggest annual rise since 1997-98,[18] with an increase in general practice and dental health services complaints of 4.4%.

21. In written evidence the Ombudsman told the Committee:

The increase in written complaints […] does not come as a surprise. The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009, which came into effect on 1 April 2009, imposed stricter requirements for recording NHS complaints.[19]

22. The Committee is mindful that the rising numbers of complaints is not just an NHS phenomenon. We have heard evidence that complaints to the Financial Ombudsman have risen by 119% in the last year, that the Housing Ombudsman has seen a 43% increase in complaints and that the Press Complaints Commission reported a 7-fold increase in annual complaints.[20]

23. In written evidence to the Committee, the recent rise in complaints about the NHS has been variously attributed to the 28% rise in demand for healthcare over the last ten years,[21] greater consumer awareness of the complaints process[22] and also a deterioration in the standard of care delivered by the NHS.[23] The Committee has also heard that:

It is difficult to say whether there has been a deterioration in care as a whole.[24]

24. Additionally, organisations that are proactive on their complaints policy and see complaints as useful intelligence on patient satisfaction will often encourage more complaints and consequently have higher complaints figures. The NHS complaints statistics show an increase of 13.4% in complaints between 2008-09 and 2009-10. This is comparison of data between two distinct complaints systems is unreliable. Furthermore, the growing number of people treated by the NHS, the stricter reporting arrangements, more information about how to complain and a general improvement in consumer rights awareness may have added to the volume of complaints that the NHS receives.

25. In the course of this inquiry, the Committee has heard numerous stories in oral and written evidence of significant failures in NHS care and treatment. The Committee does not seek to pass judgement on the standard of care in the NHS in this report. Rather, we are struck by the volume, variety and complexity of complaints that are received in the NHS on a daily basis. In particular we are concerned about the number of individual cases where complainants did not feel the NHS was sufficiently responsive to their concerns. It is in this variable individual experience, rather than in movements in the headline totals, that the Committee feels that there is a real issue which the NHS needs to address.

26. Complaints undergo a process of grading, generally though not universally at the beginning of the process. "Traffic-lighting" or grading complaints is used to support the effective assessment of the risks associated with the complaint i.e. the likelihood of it recurring and its consequences for the patient, and the consequences for the organisation such as likelihood of litigation, likely costs incurred and potential for adverse media interest.[25] Grading can also support prioritisation of complaints and can indicate the type of investigation that is required in order to resolve it, though the evidence from individual patients to the Committee suggests that this is not always the case.

27. Broadly speaking, complaints fall into two distinct categories; customer service-type complaints, relating to the non-clinical aspects of care including how clinicians interact with patients, and those complaints relating to clinical care which are by nature more serious in terms of their potential outcome for the patient. Clearly, these complaints need to be handled in a very different manner.

28. Customer service complaints often can and should be resolved immediately by the person receiving the complaint apologising and rectifying the issue, be they a clinician, a PALS officer or any other employee of the NHS. Due to the nature of these types of complaints, admitting that there was a problem, dealing with it and apologising will save time and resources that can be diverted to prompt and effective investigation and resolution of more serious and complex cases.

29. The Minister of State for Health, Simon Burns, acknowledged that complaints need to be resolved more quickly:

Also, again from being a constituency MP rather than a Minister, there can sometimes be frustration at the length of time it might take to investigate and come to a conclusion on a complaint that has been made at a local level.[26]

30. It was suggested to the Committee that in order to resolve complaints more speedily there may well be a case for two separate "channels" within the complaints system. The Minister stated that:

[…] one could say yes, in principle, but I fully take on board the rather practical point you are making: whether it would be more effective, efficient and sensible to have a two­channel system or where serious clinical and medical decision complaints are treated in one tier and the example you give of food and things that are important to people—but, in the run of things, may not be considered as critical as where there has been a significant failure in care—in the same tier so that it clogs up the whole system rather than prioritising them in different channels.[27]

31. It will always be difficult for a single complaints system to manage complaints about the great diversity of issues that occur on a daily basis. In its review of the complaints system in England, the Government should consider carefully the development of separate systems for investigation and resolution of customer care complaints and more serious complaints about clinical issues. A stratified set of standards relating to each part of the system should also be considered.

Reviews of serious untoward incidents

32. Incident reporting is the mechanism through which staff raise issues or concerns with senior managers, and is a routine aspect of all clinical care in the NHS. Staff are required to report any incident across a broad range of categories, from threats of, or actual violence from patients though to unsafe working conditions.[28] Staff will generally complete a paper-based form and bring this to the attention of their manager immediately.

33. Organisations use different terminology to describe very serious incidents, such as critical incidents or serious crucial incidents, but the common terminology is serious untoward incidents. A serious untoward incident (SUI) is an unexpected event that has the potential to:

[…]cause serious harm, and/or likely to attract public and media interest that occurs on NHS premises or in the provision of an NHS or a commissioned service. This may be because it involves a large number of patients, there is a question of poor clinical or management judgement, a service has failed, a patient has died under unusual circumstances, or there is the perception that any of these has occurred. SUIs are not exclusively clinical issues, an electrical failure for example may have consequences that make it an SUI.[29]

34. Such incidents are reported and investigated, commonly using the Root Cause Analysis framework, so that lessons can be learned and recurrence can be minimised or prevented, and patient complaints can also be registered as an SUI. In written evidence to the Committee, Sands (the stillbirth and neonatal death charity) brought the case of Baby L, who died in 2009, to our attention. Baby L's parents stated that:

We felt that if we went through the complaints procedure we just weren't going to get anywhere. The hospital has been so obstructive and unhelpful. We have no faith in them at all.[30]

35. Sands went on to state that:

On L's anniversary a year later parents requested a third meeting with the hospital . At this meeting they were informed that a Serious Untoward Incident report had been conducted eight days after L had died which answered some of the questions they had been asking the Trust for months, but also conflicted with their version of events. They were not asked for their input or informed that an SUI was being conducted at the time.[31]

36. The Committee recommends that in all cases where serious untoward incidents are being investigated, whether or not a complaint has been made, those directly affected should always be included as full participants in the process.

Investigation by the Ombudsman

37. The second and final stage of the NHS complaints system (complaining to the Health Service Ombudsman) is normally instigated only when the local resolution stage has been completed. The Ombudsman undertakes independent investigations into complaints about NHS funded care and treatment brought to that office by complainants or their relatives. According to the Health Service Commissioners Act 1993 complaints may be made to the Ombudsman on the grounds of maladministration and/or poor service.[32] This being the case, a further two tests are applied before the Ombudsman accepts a complaint for formal investigation or intervention. Firstly, a person must have suffered injustice or hardship as a result of the poor service or maladministration, and secondly there must be the prospect of "a worthwhile outcome".[33]

38. The Ombudsman has noted a significant increase in complaints proceeding to stage two of the complaints system. In 2009-10 complaints to the Ombudsman more than doubled on the previous year—a total 15,579 complaints were closed in that particular year.[34] Just over a half of these complaints (9,011) were closed as they had not completed the local resolution stage.[35] The Ombudsman told us that:

Closing these complaints often involves engaging with the NHS body in question and can result in that body carrying out additional work or simply expediting the complaint.[36]

39. A further 1,373 complaints were withdrawn by the complainant at this stage. The remaining complaints were looked at in detail in order to decide if a full investigation was warranted. This involved the Ombudsman calling for more information from the body being complained about, reviewing papers or taking professional advice, and some complaints were resolved without the need for formal investigation.[37] In 4,210 cases complaints were examined and it was found that there was no evidence of maladministration or unremedied injustice, or that the outcome sought by the complainant e.g. disciplinary action against a clinician, was not achievable.

40. The Ombudsman told the Committee that many people are satisfied with the service provided by that office:

[…] 90% of people whose complaints we investigated were satisfied with our service overall. 70% of people whose complaints we didn't investigate were happy with our service. The figures and the numbers are there for the Committee if you want to look at them.[38]

41. Despite these positive statistics, the Committee has heard significant concerns from patients and patient representatives about the numbers of cases accepted for investigation:

Our biggest concern about the Ombudsman is that […] they take very, very small numbers of complainants, either as official investigations or what they describe as intervention where they don't investigate a complaint but they will contact the trust. Combined, it is something like 2% to 3% of those people that take their complaint to the Ombudsman. So we are talking about thousands of people who have, for whatever reason, felt that the response they received locally was not adequate, who do not receive any kind of independent scrutiny of that response.[39]

In 98% of cases the Ombudsman doesn't investigate—98%. Less than 1.5% are ever investigated and this service costs us £34 million per annum. It's wrong.[40]

Action against Medical Accidents also expressed some concerns about the numbers of complaints being independently investigated:

Bearing in mind that the Healthcare Commission had dealt with 7,827 independent reviews in 2007-2008 these figures would suggest that many people are being 'bounced' back to attempt further local resolution with the NHS body they are complaining about. Whilst we accept that in some circumstances this might be appropriate, we are worried that in others it is not.[41]

42. In her evidence the Ombudsman reported that her department does a significant amount of informal work on improving complaints handling in the NHS, including informal measures to support resolution and in supporting people to make their complaints to the right organisation at the right time. Although only 3% of the complaints received by the Ombudsman were accepted for formal investigation or intervention,[42] the evidence shows that a considerable minority of well-made complaints were unofficially examined by the Ombudsman.

43. A majority of the complaints brought to the Ombudsman each year are incorrectly made or have not been though local resolution. The small number of cases accepted for formal investigation and intervention each year disguises the fact that a considerable amount of informal investigation takes place.

44. As previously mentioned, the final test applied to whether a complaint is accepted for investigation by the Ombudsman is that a "worthwhile outcome" could be achieved.

45. The Ombudsman told us that:

[…] the final one [test] is about whether we could get what we would describe as a worthwhile outcome. Hopefully, we would use more sensitive language than that when writing to the complainant.[43]

46. It is the point about a "worthwhile outcome" that has arisen time and again during the inquiry. Several complainants and organisations have told us that this terminology is often used in letters to them, telling them that their case has been closed by the Ombudsman:

In fact, they tactfully ignored any recommendation that would benefit me, […] this was reinforced through the ineffective intervention by the Parliamentary, Health Care Ombudsman, wasting years of my time to achieve nothing but a 'not worthwhile outcome'[44]

In February 2010 the Ombudsman declined to investigate because missing medical records meant the family were unlikely to get a 'worthwhile' response.[45]

[…] Case has been refused by PHSO for an investigation as "no Worthwhile Outcome" can be identified….despite '6 months reconsideration'[46]

47. Although the Committee has heard that the Ombudsman will generally only accept complaints that have progressed through the "local resolution" stage of the process, some flexibility does exist within this. The Ombudsman told us that:

[…] we have to say, "Unless something extraordinary is going on here, we think the NHS body should have the opportunity to look at this first."[47]

48. We recommend that the Ombudsman urgently reviews the manner in which data on complaint handling by her office is communicated to the public as she appears to be significantly more actively engaged in reviewing NHS complaints than is obvious from the published data.

49. The terminology "no worthwhile outcome" which arises from the Health Service Commissioners Act is being used in communication with complainants. Several have told us that their complaints were rejected because "no worthwhile outcome" could be achieved. The Committee recommends that the Ombudsman urgently reviews the use of this terminology in correspondence as it appears significantly to undermine public confidence in the complaints handling process.

50. Many people see the role of the Ombudsman as a general appeals process for the complaints system, but the remit under the Health Service Commissioners Act is much narrower than that. The Committee is of the view that a complainant whose complaint is rejected by the service provider should be able to seek independent review. The legal and operational framework of the Ombudsman's office should be reviewed to make it effective for this wider purpose.

3   The Health Service Ombudsman, Making Things Better, (London 2005) Back

4   Ibid.  Back

5   Ibid.  Back

6   Department of Health, Committee of Inquiry to investigate how the NHS handled allegations about the performance and conduct of Richard Neale, Cm 6315, August 2004 Back

7   Department of Health, Committee of Inquiry into how the NHS handled allegations about the conduct of Clifford Ayling, Cm 6298, July 2004 Back

8   The Department of Health, The NHS Constitution, March 2010 Back

9   The Health Service Ombudsman, Making Things Better, 2005 Back

10   Q 73 Back

11   Ev 107 Back

12   Q 49 Back

13   Ev 107 Back

14   Local Authority Social Services and National Health Service Complaints (England) 2009 (SI 009/302) Back

15   Ibid. Back

16   The Department of Health, Clarification of the Complaints Regulations, January 2010 Back

17   The Information Centre for Health and Social Care, Data on written complaints in the NHS 2008-2009, November 2009 Back

18   The Information Centre for Health and Social Care, Data on written complaints in the NHS 2009-10, August 2010 Back

19   Ev 146 Back

20   Ev 142 Back

21   Ibid.  Back

22   Ev 80 Back

23   Ev 153 Back

24   Q 5 Back

25   For example, NHS Healthcare Workforce website, NHS Bolton and NHS Stockport Complaints Policies Back

26   Q 361 Back

27   Q 391 Back

28   For example, see NHS Surrey, Incident Reporting Policy, March 2011 Back

29   For example, see NHS London, Serious Untoward Incident Reporting Guidance, October 2007 Back

30   CAL 38 Back

31   ibid Back

32   Health Service Commissioners Act 1993, Section 3 Back

33   Ibid.  Back

34   The Health Service Ombudsman, Listening and Learning: The Ombudsman's review of complaint handling in the NHS in England 2009-10, October 2010 Back

35   Ev 161 Back

36   Ibid. Back

37   Ibid.  Back

38   Q 90 Back

39   Q 8 Back

40   Q 55 Back

41   Ev 16 Back

42   Ev 149 Back

43   Q 96 Back

44   CAL 46 Back

45   CAL 38 Back

46   Ev 87 Back

47   Q 79 Back

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© Parliamentary copyright 2011
Prepared 28 June 2011