Complaints and Litigation - Health Committee Contents

4  The role of commissioners

76. The Committee notes that the NHS complaints system has only been in place for a little over two years. Whilst we are not proposing a lengthy and disruptive reorganisation at this point, the Committee believes that commissioning authorities (as outlined in our earlier report Commissioning: further issues[77])should be the engines that drive improvement in complaints handling, in the analysis of data and in leading change within the NHS.

A duty of candour

77. The Committee has heard in evidence that the NHS does not always admit when things go wrong, nor does it always offer an explanation. In our first evidence session the Committee heard from three patients. Their stories described how things had clearly gone wrong in their care or that of a relative, but the NHS had not been candid in responding to the concerns they had raised.[78]

78. In his 2003 report, the then Chief Medical Officer called for a formal duty of candour.[79] This cause has subsequently been taken up by Action against Medical Accidents (AvMA), National Voices and other organisations.[80] In its White Paper on the NHS, the Government has made a commitment to:

[…] require hospitals to be open about mistakes and always tell patients if something has gone wrong.[81]

Further action on this by the Government is pending.

79. The Committee notes that candour is already enshrined in a number of commitments and regulatory frameworks. The NHS Constitution contains a pledge that:

[…] when mistakes happen, to acknowledge them, apologise, explain what went wrong and put things right quickly and effectively.[82]

The Committee has heard in evidence that medical professionals are already subject to a similar duty from their regulator:

They are subject to a duty of candour pursuant to the GMC requirements in any event. I suppose your question is: would a statutory duty of candour make any difference?[83]

Others have suggested that what is required is a culture change as opposed to a new statutory framework for candour:

[…] without the culture change, even making it a statutory duty may not make much difference.[84]

In its response to the report of the NHS Future Forum report on the proposed reforms to the NHS the Government has stated that it will introduce a duty of candour: a new contractual requirement on providers to be open and transparent in admitting mistakes.[85]

80. The Committee welcomes the Governments announcement that it will introduce a contractual duty of candour. The Committee does not think that placing further statutory duties on the NHS will produce the shift in culture that is required to ensure that patients get full disclosure of information when things go wrong. The emphasis on the importance of culture change described later in this report may have more impact than further statutory change.

81. However, the Committee believes that service agreements between NHS commissioners and their providers should include a contractual duty of candour to the commissioner. A duty of candour to patients from providers should also be part of the terms of authorisation from Monitor, and of licence by the Care Quality Commission.

82. When commissioning authorities are being authorised by the NHS Commissioning Board they should also be placed under a contractual duty of candour to their populations and to their local Healthwatch organisations.

Setting standards, monitoring improvement

83. How standards for the NHS complaints system are set, measured, monitored and evaluated is a complex matter. In 2009 the Government laid regulations before Parliament that set out in broad terms how the complaints process should work, including the overall framework of what patients should expect e.g. efficient and effective investigation, timely response.[86] The Regulations also provide that written records be kept of oral complaints, that information on how to make a complaint be publically available and that organisations make their complaints handling reports available on request.[87]

84. Within this framework there is considerable scope for some NHS organisations to develop their own standards for complaints handling. The Committee heard from an ICAS provider organisation that:

All I can say is that every organisation is different. They all have their own variation of standards and reporting. With the best ones, it is reported regularly and to the highest level.[88]

Echoing this comment, an NHS Foundation Trust told us that:

The Trust board sets the standards in association with the clinical teams as policy and procedure is developed. In our Trust, they are monitored again by the Trust board through the quality assurance board.[89]

85. Arguably this complexity allows NHS organisations to tailor their complaints handling standards to their own local circumstances. However, during the course of this inquiry the Committee tried to establish a view of how different NHS organisations were performing on complaints handling. In order to get a rounded view of this, the Committee had to analyse data from a number of different sources, including the Ombudsman, the Care Quality Commission, Monitor and the NHS Trusts themselves. This complexity was mirrored in evidence to the Committee from the Patients Association:

The barrier to accountability in that respect at the moment is the lack of proper performance measurement of complaints handling. We can't isolate particular Trusts in an effective way and say which ones do their complaints handling well and which ones don't. We have all talked about examples we have seen as good and bad, but we are not able to get any handle on trusts that do well generally and trusts that don't do a good job generally.[90]

86. The Committee finds that in the absence of clear national standards for complaints handling, and with no one organisation taking the lead on assessment of performance, it is extremely difficult to ascertain which organisations are performing well on complaints. There is significant potential for duplication by different regulators and for failing organisations to be overlooked.

87. The Committee strongly advocates that one organisation should be responsible for maintaining an overview of complaints handling in the NHS, setting and monitoring standards, supporting change, and analysis of complaints handling data "in the round" from all sources. The Committee recommends that this responsibility should rest with Healthwatch England in conjunction with local Healthwatch organisations and that it should be resourced at a level which reflects the importance placed in this issue by patients and taxpayers.

88. The Committee has outlined how complaints can be a source of information and intelligence for patients and for healthcare providers - providing them with essential information to address weaknesses in their processes. Complaints are possibly of even greater value and importance to organisations that commission healthcare. However, data quality and the ability of commissioners to obtain the required information are significant issues. The Patients Association told us that:

You can't compare one organisation to another effectively. From a commissioner's point of view, it must be incredibly challenging to know whether you have a real issue with your provider.[91]

89. Notwithstanding changes to the Health and Social Care Bill, the NHS Commissioning Board will be mandated to develop model commissioning contracts and can require commissioning authorities to use or have due regard to them.[92] The Committee concludes that a contractual duty on providers to share complaints data with commissioners would be more effective than further legislation.

90. The Committee thinks that commissioners need to have a much greater focus on complaints handling and on complaints data. We would like to establish the principle that providers must account to their commissioner on complaints handling, and that the commissioner in turn must account to the public and local Healthwatch for the performance of their providers.

91. The Committee recommends that the model commissioning contracts that will be developed by the NHS Commissioning Board must mandate access to comparable complaints data from their provider organisations by commissioners.

Complaints data

92. The commissioning process requires robust and comparable data, sophisticated analysis, and the conversion of these into commissioning plans. Action against Medical Accidents suggested to the Committee that commissioners could and should play a greater role in oversight of complaints from their providers:

why aren't the commissioning organisations being more vigilant about trends in the hospitals or the trusts where they are commissioning their treatment? They should be, I am sure, and that is definitely our view. If there is the idea that HealthWatch will continue to have this advisory role to consortia, then they should be able to say, "The trends here are such and such and therefore what are you going to do about that when you are commissioning that treatment?"[93]

93. In a later evidence session a Foundation Trust Director of Nursing seemed to echo this point when she told the Committee that complaints data could help to support effective commissioning and to drive up service quality.

[…] but if the information published to commissioners also says, "The services you are commissioning from this organisation are not as good and the complaints response is not as good as that over there, so what is happening about that?", that would be quite an incentive to most providers.[94]

94. The view that commissioners have a role to play and that information needs to be shared more widely has been endorsed by the Department of Health in their evidence to the Committee:

One of the things we will be considering is the role of commissioners potentially in commissioning for information. You are absolutely right that, in terms of trusts being accountable, it is important that information is available and in the public domain and that there is a commitment to transparency. We need to work through how that will play into the commissioning system with the Commissioning Board and GP consortia.[95]

95. The Committee asked Executive Board members from two Foundation Trusts whether commissioners ever ask about the complaints process as opposed to individual cases. The responses were illuminating:

Helen Thomson: No.

Dr Newbold: No. They would want to know we had a process and policies in place.[96]

Dr Newbold agreed that it was a box-ticking exercise.[97] Although NHS provider organisations compile complaints data and complete complaints reports, the Committee heard that these data are not always comparable and there is currently no duty on these providers to automatically publish their complaints reports. Rather, these are provided on request.[98]

96. The Committee recommends that providers of NHS care and treatment should be under a contractual duty to report comparable complaints data to their commissioners at a frequency specified by them. Commissioners should in turn share this data with other commissioners, the relevant Healthwatches, and the NHS Information Centre who can in turn share their concerns with Healthwatch England.

Complaints action plans

97. Once a complaint has been investigated and found to be well made and with cause, NHS organisations will frequently develop an action plan. Action plans aim to prevent the original incident from recurring by making some change to the systems and procedures either within the clinical area or throughout the organisation concerned. Some witnesses to our inquiry have questioned the usefulness of action plans. Some have told us that they were told an action plan was in place, only to be copied into a blank form.[99] Julie Bailey from Cure the NHS told the Committee that:

What we have found with the public inquiry at Mid Staffordshire is that we have a sack full of action plans, several that have been sent to the Ombudsman, but they were never put into practice. Nobody was there to check on them. We have got action plan after action plan going back 10 years, but they were never implemented. I am sure that is the same throughout the country.[100]

98. The Ombudsman will routinely ask to see action plans and for updates on progress that has been made against them. However, action plans have no statutory force or footing. In oral evidence to the Committee the Department of Health seemed to agree with the need to look again at action plans:

[…] that does leave a gap in the sense that it is easy to write a letter which is then subsequently forgotten. Subject to further consideration, we need to look at whether or not this aspect of the regulations might be strengthened so that if a promise has been given to undertake a certain action then a follow­up letter goes out or, at minimum, it is accepted that the complainant may subsequently write, three to six months later, and say, "I am just checking on how you followed up from this," and expect a reply. It is a fair question.[101]

99. Following on from this we asked the Minister of State for Health whether following up on implementation of complaints action plans should be the role of the commissioner.

Absolutely. That is a very valid point and we will await your report.[102]

100. Action plans that arise from complaints are a vital part of organisational learning, but they are only of value if they are followed through to implementation.

101. The Committee recommends that providers of NHS care and treatment be put under a contractual duty to report their complaints action plans, and progress against implementing them to their commissioners, and to the complainant. Commissioners, as the focal point for local analysis of complaints, should then share action plans and progress updates with their local Healthwatch.

102. Local Healthwatch should also share complaints action plans and any concerns they have about implementation with Healthwatch England.

77   Health Committee, Fifth Report of the Session 2010-2012, Commissioning: further issues, HC 796-I Back

78   For example Q 44, 48 and 51 Back

79   The Department of Health, Making amends. A consultation paper setting out proposals for reforming the approach to clinical negligence in the NHS, July 2003 Back

80   For example see Action against Medical Accidents, "A legal duty of candour", Back

81   Department of Health, Equity and Excellence: Liberating the NHS, Cm 7881, July 2010, p3 Back

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

83   Q 350 Back

84   Q 357 Back

85   Department of Health, Government response to the NHS Future Forum report, Cm 8113, June 2011, p. 39 Back

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

87   Ibid.  Back

88   Q 202 Back

89   Ibid. Back

90   Q 33 Back

91   Q 15 Back

92   Health and Social Care Bill, Clause 16 [Bill 132 (2010-12)] Back

93   Q 26 Back

94   Q 285 Back

95   Q 107 Back

96   Ev 55 Back

97   Ibid.  Back

98   For example Q 112 to 114 Back

99   Q 48 Back

100   Q 11 Back

101   Q 388  Back

102   Q 389 Back

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© Parliamentary copyright 2011
Prepared 28 June 2011