Complaints and Litigation - Health Committee Contents

5  The proposed health reforms

103. A number of the Government's proposed reforms will or could have a significant impact on the health and social care complaints system. These include, among others, proposals for the commissioning of complaints advocacy services by Local Authorities, proposals for the handling of primary care by the successor organisations of PCTs, and proposals for progressing the Information Revolution consultation.

104. The only specific provisions relating to the complaints system within the Health and Social Care Bill relate to information-sharing. It is intended that the Ombudsman will be able to share complaints reports with those she thinks appropriate, such as professional regulators.[103] The Committee welcomes the provisions in the Health and Social Care Bill that support information sharing between organisations but would like to see the proposals strengthened in a number of areas relating to the complaints system.

Complaints advocacy commissioning

105. Independent Complaints Advocacy Services or ICAS are currently commissioned nationally by the Department of Health in three block contracts. Each contract is provided by a separate provider—POhWER (London, West Midlands and East of England), The Carers Federation (North East, North West, Yorkshire and Humberside and East Midlands) and SEAP (South East and South West England).[104]

106. The Committee notes that other statutory advocacy services are also in existence. Independent Mental Health Advocates (IMHAs) support people who are detained under the Mental Health Act to understand and exercise their rights. Under Clause 35 of the Health and Social Care Bill IMHA commissioning will pass from PCTs to Local Authorities in 2013.[105] Independent Mental Capacity Advocates (IMCAs) support people who lack capacity and are facing significant decisions. IMCA services have been commissioned by Local Authorities since their inception.

107. The Government is proposing that local Healthwatch organisations will evolve from the current Local Involvement Networks (LINks) to represent the voice of patients to providers, regulators and commissioners. Healthwatch will retain the powers that LINks had to comment on service changes, to enter and view services provided by or on behalf of the NHS and input people's views into commissioning.

108. In the White Paper, the Government proposed that local Healthwatch would be funded to provide complaints advocacy services and would be able to refer concerns about services to Healthwatch England which could in turn ask the Care Quality Commission to investigate.[106]

109. Following consultation on this, the Government decided that Local Authorities should decide whether local Healthwatch would provide complaints advocacy, or to commission this from another body. In evidence to the Committee the Department of Health told us that it will double the funding going to Healthwatch specifically to enable it to support advocacy for complainants.[107]

110. The Committee has heard evidence that the provision of ICAS across England is inconsistent. Witnesses have told the Committee that ICAS works in different ways in different parts of the country[108] and others have told us that:

The recurring theme here is that the provision over the whole of the country is inconsistent.[109]

111. The Department of Health told the Committee that where problems arise "we would expect Healthwatch England perhaps to notify an individual local authority of those problems".[110] The Department went on to remind the Committee that Local Authorities "[…] are not subject to direction from the centre, either within the Department of Health or, indeed, from HealthWatch England within CQC".[111]

112. From the evidence presented to it the Committee finds that people who use complaints advocacy services see a demonstrable benefit from it. However, existing commissioning arrangements have led to coverage that is neither complete nor consistent.

113. The Committee supports the Government's proposal for Local Authority commissioning of complaints advocacy. Local Authorities should use their considerable experience in this area to improve consistency of advocacy services across England. Commissioning statutory advocacy services for complaints, mental health and mental capacity could create opportunities to make service improvements and to reduce costs that should be explored by Local Authorities and the Department of Health against the background of a shared commitment to provide an effective advocacy service.

Primary care complaints

114. GPs and other primary care practitioners provide a significant proportion of the daily contacts that the NHS has with the public. As such it is no surprise that complaints about general practice comprised nearly 50% of all complaints about the NHS in England in 2009-10.[112] Members of the public may have specific issues about complaining about their GP, and the Committee heard evidence that this is the case:

[…] there is a particular bond that you have with your GP. He or she is your first point of call when you are not well. The worry is that if you make a complaint you will be treated differently. Anecdotally maybe, it has happened to a lot of people where they are struck off after making a complaint and people are worried that that is going to happen, especially if it is a rural practice and they have nowhere else to go. Having said that, there are other reasons why people do not complain.[113]

115. The final report in the Shipman Inquiry supported the then draft regulations that would allow patients to complain either directly to their GP practice or to the relevant Primary Care Trust (PCT).[114] The Department acknowledges that it may be difficult for people to complain directly to their surgery about their GP and such complaints about general practice may now also be made to the PCT that commissions their practice.[115]

116. As the Health and Social Care Bill stands at the moment, including announcements made after the Governments "pause" and "listening exercise", PCTs are still due to be abolished in 2013. The Government has not made a formal statement on which organisation will offer an alternative to complaints directly to the GP practice once PCTs are abolished. The Department of Health told the Committee that:

[…] there are occasions, particularly with complex or sensitive cases, where someone wishing to make a complaint may feel that it is appropriate to go to an organisation slightly more distant than the organisation that provided the service. That, therefore, means that, at the moment, the choice is to go to the GP practice, the NHS trust, or, alternatively, to the commissioner of that service. As the Minister has described, in the new framework, if that principle holds, some complaints will go to the GP consortium commissioning the care, if it is in the secondary sector, or, if it is in the primary sector, the complaint will go to the NHS Commissioning Board.[116]

117. In the Committee's second report on commissioning, it expressed concern that the Governments proposals for commissioning primary care through the NHS Commissioning Board needed to be reconsidered.[117] Commissioning complaints systems through the Board nationally presents similar difficulties. The Government needs to bring forward effective proposals for local commissioning of primary care, of which complaints form a key part.

Information and data sharing

118. The Government's White Paper on the NHS stated that better information for patients can help to promote better and safer care, improve outcomes and support people to be more involved in decisions about their treatment and care.[118] The Government opened a formal consultation on the "Information Revolution" in 2010, stating that:

Health and adult social care information will be liberated from a closed, bureaucratic system in order to serve patients and the public, and to help drive better care, improving outcomes, innovation and the better use of resources.[119]

119. It is notable that complaints are only mentioned in the footnotes of the Information Revolution consultation. The consultation closed on 14 January 2011 and the Government's response is pending. When questioned about this, the Minister of State for Health told the Committee that the Information Revolution consultation was "fairly comprehensive" but did acknowledge that complaints had not been mentioned.[120] When asked whether it should have, the Minister replied:

No, I don't. The complaints procedures are dealt with through the measures introduced in April 2009 and if one feels that there are failings or there are improvements that can be made to the way in which complaints operate at present, then that is the right area in which to look to seek to improve and amend, if necessary, not through this. The focus of the Information Revolution is to provide more information across the board so that people can see what is going on within the NHS and within health care in England.[121]

120. The Committee finds it striking that the Government did not mention complaints in the Information Revolution consultation and is surprised it does not see how complaints information can help people to "see what is going on within the NHS".

121. Complaints data can and should be used to support informed decision-making by patients and commissioners, and to drive up the quality of care in the NHS. In its forthcoming report on the Information Revolution the Government should consider how complaints data can help patients to make informed choices about their care.

122. The Committee notes that there is also an issue with how complaints data is collected nationally. All NHS Trusts must return their complaints data to the NHS Information Centre for inclusion in the annual report on NHS complaints, the so-called KO41 central return. However Foundation Trusts do not have to return this information and one in seven declined to supply this information to the Information Centre in 2009-10.[122]

123. The Department of Health and others query the usefulness of the KO41 data return:

There is a true disagreement as to how effective that information is. What I am arguing is that we need to look to the future. We need to shift the situation with more meaningful data.[123]

In response to this perceived lack of usefulness, the Department of Health, the Ombudsman, the CQC, and Monitor signed a joint statement on how to achieve meaningful, comparable complaints information.[124]

124. The Committee welcomes the joint agreement on complaints information between the Department of Health, the Ombudsman and others, and would like to see clear plans in place for its implementation.

125. However, the Committee remains very concerned that participation in the agreed protocol by Foundation Trusts remains voluntary. The Committee believes this communicates an unacceptable message about the prevailing culture towards complaints, and in particular towards the duty of candour which we believe that all providers of NHS care should respect towards their commissioners and the wider public. We propose that participation in the agreed reporting protocol for complaints should be a condition of the award of any NHS service contract to either public or private sector provider.

126. Although Foundation Trusts are excluded from mandatory returns of complaints data, all NHS providers are required to produce an annual report on their complaint handling performance and to make this available on request.[125] These reports must include numerical and subject data, the numbers of complaints referred to the Ombudsman and actions taken to remedy complaints.[126] At present there is no guidance on how organisations must present their complaints reports, nor is it required that these reports be published in print or online[127] making accessibility by the public difficult to achieve. In evidence to the Committee, Cure the NHS told us:

But we have an ideal opportunity at the moment to force foundation trusts to publish all their data. Now is the time. Instead of allowing them to have closed board meetings, we should force them to have all their evidence in public so that they issue all the complaints, all the serious untoward incidents, their infection rates, and their staffing levels. This is what we should be doing. If all of that information was out in the public arena, then the public would have a choice. They will know if that hospital is safe.[128]

127. The withholding of NHS complaints reports from the public until they are specifically requested runs counter to the principles of the Information Revolution. The Government must take action on this and ensure that complaints reports and serious untoward incident reports are automatically returned to commissioners who can then publish a rounded view on NHS-funded providers. These reports must also be automatically published by local Healthwatch organisations.

103   Health and Social Care Bill Cl. 185 Back

104   "New ICAS contracts awarded to POhWER, Carers Federation and SEAP", National PALS Network, February 2006, Back

105   Health and Social Care Bill, Cl. 35  Back

106   Department of Health, Equity and Excellence: Liberating the NHS, Cm 7881, July 2010, para. 2.26 Back

107   Q 82 Back

108   Q 19 Back

109   Ibid. Back

110   Q 386 Back

111   Ibid. Back

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

113   Q 206 Back

114   The Shipman Inquiry, Fifth Report - Safeguarding Patients: Lessons from the Past, Proposals for the Future, December 2004 Back

115   "GP Complaints", NHS Choices website, July 2009, Back

116   Q 379 Back

117   Health Committee, Fifth Report of Session 2010-2012, Commissioning: further issues, HC 796-I, para. 79 Back

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

119   Department of Health, Liberating the NHS: An information revolution, October 2010 Back

120   Q 381 to 382 Back

121   Q 383 Back

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

123   Q 373 Back

124   The Health Service Ombudsman, Driving improvement and learning from NHS complaints information, March 2011 Back

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

126   Ibid. Back

127   Ibid. Back

128   Q 13 Back

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© Parliamentary copyright 2011
Prepared 28 June 2011