Complaints and Litigation - Health Committee Contents


Written evidence from Terry Leigh PhD (CAL 16)

The following evidence applies to the Health Committee's enquiry into Complaints and Litigation. It is particularly applicable to the following areas:

—   —  The effectiveness of the constituent parts of the complaints system: local resolution (supported by the Independent Complaints Advocacy Services); and referral to the Ombudsman.

—  The Government's plans for future complaints-handling arrangements.

—  Encouraging the use of mediation before litigation is initiated.

SUMMARY

—   —  Conciliation (also known as Health Mediation) is a very effective tool in resolving NHS complaints and has been an integral part of local resolution for many years.

—  Conciliation is independent and impartial with respect to both complainants and NHS practitioners. It is a relatively quick process and effectively reduces the time, energy and costs of complaint management.

—  Conciliation plays a significant role in healthcare complaint resolution in many countries eg Australia, New Zealand, USA, Canada and parts of Europe.

—  Despite the international recognition of the effectiveness of conciliation, it has received extremely limited funding and promotion in the United Kingdom compared to the other constituent parts of the complaints system.

—  The use of active, resolution-seeking and cost-effective conciliation services should significantly reduce the budget requirement and improve both complainant and practitioner experience of local resolution within the NHS Complaints System.

1.  The Role of Conciliation in the Local Resolution of Complaints

Conciliation is a very effective tool for NHS complaint resolution and has been an integral part of local resolution for many years.

"Conciliation offers a significant opportunity. It can re-establish stalled dialogue. It can help participants to understand that there are other valid points of view, and narrow the gap between differing expectations. The potential benefits are considerable, both for those who can feel that there voice has been heeded and their understanding improved, and for those who have the opportunity to help make the services they provide safer, more effective and better matched with expectations. For conciliation to help achieve this worthwhile prize, it must be readily available, carried out well, and focussed on outcomes."

Sir Liam Donaldson, Foreword. In: Anne Ward Platt, Conciliation in Healthcare, Radcliffe Publishing, 2008.

Complaints guidance and the academic literature highlight and encourage the use and benefits of conciliation:

Mediation can be useful in complaints "which are more difficult to resolve."

Listening, Responding, Improving - A guide to better customer care, Department of Health, 26 February 2009.

Conciliation "gives space to resolve issues, preserve on-going relationships and time to defuse or calm heightened situations".

Department of Health, Handling complaints in the NHS - good practice toolkit for local resolution. Department of Health, 2005.

"Conciliation is often useful in resolving difficulties arising from a breakdown of a relationship, for example between a clinician and a patient."

Scottish Executive, Health Department. Guidance for NHS complaints: hospital and community health services. Scottish Executive, Health Department, 2005.

"[Conciliation] can be particularly useful where there are multiple issues involved or where the doctor-patient relationship has already broken down significantly."

Royal College of General Practitioners, Complaining and commenting in general practice. (Information sheet). RCGP, 2006.

Conciliation has a significant role in the healthcare complaints procedures of Australia, New Zealand, parts of the USA, Canada and parts of mainland Europe.

Anne Ward Platt, Conciliation in Healthcare, Radcliffe Publishing, 2008, p4.

"An indication of how beneficial conciliation is in resolving complaints at local resolution, is that of the 26 cases referred to conciliation, only two cases have not been resolved following conciliation."

Camden Primary Care Trust. Annual complaints report, 2004-05.

2.  How Conciliation Works

Conciliation is a confidential process in which a conciliator helps those involved to resolve the difficulties that have arisen between a patient and practitioner.

Conciliators are independent and impartial. They have been specially trained to help the parties involved to try and find a way to resolve matters that suits them both.

They have no legal power, do not offer advice or impose solutions and make no attempt to judge the situation.

Conciliation is a voluntary process, with the conciliator or either party having the right to end the process at any time.

The conciliation process - stage 1

The conciliator has an initial private meeting or discussion with each separate party, in order to explain how conciliation works and answer any questions. Those involved are asked to discuss how they see and feel about the situation. The main issues involved are clarified and ways of resolving them explored.

At the end of the meeting, the conciliator confirms with the party their agreement to continue with conciliation and discusses how they wish to proceed.

The conciliation process - stage 2

A face-to-face meeting between the parties can be arranged. This meeting can only take place if the conciliator and parties involved choose to participate and confirm their agreement to the meeting arrangements and procedures.

When facilitating face-to-face meetings, the conciliator ensures that they are safe and controlled, allowing those involved the opportunity to speak and respond to the issues raised.

A face-to-face meeting is structured. At the start the conciliator confirms how the meeting will be conducted, what the role of the conciliator is and what is expected from the parties.

Each of the parties is then given an opportunity to speak about the situation, without being interrupted. The issues to be discussed at the meeting are clarified and confirmed. The conciliator works through these issues with the parties, helping them to communicate and work towards their own agreement or understanding. Any agreement reached is the responsibility of the parties themselves and is not legally binding.

3.  Benefits of Conciliation

Conciliators are independent and impartial with respect to both complainants and NHS practitioners.

Complaints or Patient Advice and Liaison (PALS) teams are directly employed by the NHS. Independent Complaints Advocacy Service (ICAS) workers help people who want to make a complaint about the NHS through the NHS Complaints Procedure.

The independence and impartiality of the conciliator is crucial to the process, because both complainant and practitioner will know that the process will be conducted fairly.

"Mediation [Conciliation] can also save time and money and lead to quicker solutions".

Listening, Responding, Improving - A guide to better customer care, Department of Health, 26 February 2009.

Normally, the conciliator will first meet the complainant and practitioner separately to discuss how they see and feel about the situation.

It is important to acknowledge that both complainants and practitioners can experience a variety of negative feelings associated with a complaint.

Complainants may feel upset or angry with regard to perceived poor performance in clinical treatment, staff attitude and communication/ information provided to them.

"Negative experiences of a complaint [by General Practitioners] were shock, being out of control, depression, suicide, doubts about clinical competence, conflicts with family and colleagues, defensive practice, and a decision to leave general practice."

Key messages from: Jain A, Ogden J. General practitioners' experiences of patients' complaints: qualitative study. BMJ. 1999; 318: 1596-9.

The conciliator is therefore able to explore the perspectives and feelings of each party separately, before facilitating a mutually acceptable resolution via a subsequent face-to-face meeting.

Initial separate meetings are also helpful because there may be "underlying issues", which are not apparent in the complaints correspondence. The conciliator can explore these issues and gain understanding into how they may be resolved.

Conciliation is a confidential process, which encourages parties to establish a more open dialogue, thereby improving the chance of a mutually acceptable resolution.

Conciliation may reduce the chance of litigation being initiated, because it enhances positive and open communication between parties, most often through a facilitated face-to-face meeting.

"Many patients and/or their carers will often only make a litigation claim when they have not received any information or apology from the healthcare teams or organisations following the incident."

National Patient Safety Agency. Being open: communicating patient safety incidents with patients and their carers. (Safer Practice Notice 10). NPSA, 2005.

4.  Funding and Promotion of the Constituent Parts of the Complaints System

Despite the international recognition of the effectiveness of conciliation, it has received extremely limited funding and promotion in the United Kingdom compared to the other constituent parts of the complaints system eg PALS and ICAS.

"In England, there is a significant requirement contained in the NHS complaints procedure (which came into force on 30 July 2004) that all NHS bodies (excluding Foundation Trusts) now have a legal obligation to ensure that conciliation and mediation services are available."

Anne Ward Platt, Conciliation in Healthcare, Radcliffe Publishing, 2008, p24

Despite all the evidence and guidance, conciliation is not provided systematically or extensively in the United Kingdom.

From my experience this lack of provision stems from a limited awareness of the benefits of conciliation within the NHS.

Serious consideration needs to be given to the way in which we fund the constituent parts of the complaints system.

Is it appropriate to have unbalanced funding arrangements, resulting in conciliation, a key tool for health complaint resolution in many other countries, being under-utilized in the NHS?

This approach to funding and promotion in the United Kingdom appears to contrast markedly with health services outside the United Kingdom.

In the state of Western Australia, conciliation is considered to be the main process of resolution. Of the 289 formal complaints received in 2009-10, 145 (50%) underwent the conciliation process.

Government of Western Australia, Office of Health Review, Annual Report 2009-10, p18.

In New South Wales, Australia there is a Health Conciliation Registry.

"There is currently a panel of 37 conciliators with extensive training in dispute resolution, conciliation and conflict resolution."

Parliament of New South Wales, Committee on the Health Care Complaints Commission. Discussion paper on the health conciliation registry. Report No. 4. Committee on the Health Care Complaints Commission, 2004.

"A range of options will be available to the authority for dealing with the complaint (eg, review competence, counselling, conciliation, or taking no further action)."

Minister of Health. Improving quality (IQ): a systems approach for the New Zealand health and disability sector. Wellington: Ministry of Health, 2003.

5.  Proposal for the Provision of Local Resolution in the NHS

Personal Experience of Conciliation Service Provision

I am a mediation consultant who has provided conciliation services to many

Primary Care Trusts and a limited number of Hospital Trusts in London over the last 10 years. I work from an office at home, so there are no overheads in this regard.

The complaints leads for these organisations offer me work on a case by case basis within an agreed costing framework. The average cost per case (including travel) in 2009-10 was £402. The fact that a high proportion of conciliation cases involve three meetings demonstrates that conciliation offered in this way is extremely cost effective.

The administrative requirement on the complaints team/ PALS who refer me the case is extremely small. The lead worker obtains agreement from the parties that they wish to participate in conciliation. Once agreement has been obtained, this worker will send me their contact details and a brief outline of the case. I will then facilitate and administer the case from start to completion.

Proposed Model for the Provision of Local Resolution in the NHS Complaints System

How can we improve the effectiveness of local resolution in the NHS Complaints System?

In the light of the previous evidence, we need to re-evaluate how local resolution should best be provided.

Despite conciliation being extremely effective in local resolution, as evidenced by international guidance, literature and adoption in many health service complaints processes, it remains remarkably under-utilized in the United Kingdom.

My proposal is that the emphasis and funding of the local constituent parts of local resolution should be rebalanced.

Complaints/ PALS teams should be responsible for administering complaints generally and attempting to resolve less difficult concerns or complaints.

Conciliation services should be generally promoted within the NHS and actively encouraged for complainants with written or more formal complaints.

A register of experienced and accredited conciliators could be generated, from which complaints leads could source conciliators for new cases when required. It is recommended that those recruited to this register will have had mediation training and experience.

ICAS should support those complainants who have a need for advocacy services. ICAS workers could develop more of an awareness of conciliation services and encourage clients with more formal complaints to consider the use of these services.

This model should provide a more effective and less expensive way to deliver local resolution. The use of active, resolution-seeking and cost effective conciliation services should significantly reduce the budget requirement and improve both complainant and practitioner experience of local resolution within the NHS Complaints System.

December 2010



 
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Prepared 6 July 2011