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
| 
