Chapter 2 - Our concerns
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Current proposals and regulations
Fragmentation in complaints handling
Complaints not centred on patients' needs
Leadership, culture and governance
Current proposals and regulations
23. There are five key weaknesses in the current system and approach, which the interim changes introduced in 2004 have not resolved:
- complaints systems are fragmented within the NHS, between the NHS and private health care systems, and between health and social care;
- the complaints system is not centred on the patient's needs;
- there is a lack of capacity and competence among staff to deliver a quality service;
- the right leadership, culture and governance are not in place;
- just remedies are not being secured for justified complaints.
- There are, in addition, a number of problems which arise from the way the interim changes were implemented.
Fragmentation in complaints handling
24. Despite the fact that NHS care is being delivered in an increasingly wide range of settings, it is our experience that most people see the NHS as essentially one organisation delivering one- off or ongoing packages of health care. The Secretary of State for Health is clear that an NHS patient is an NHS patient regardless of where they are treated. However, when someone wishes to complain about health services, the image of one NHS can quickly shatter if the complaint is about more than one NHS body or it involves the social services.
Complaints across the NHS
25. A significant number of complaints cut across services provided by more than one NHS organisation, for example, GP care followed by a hospital admission. The latest regulations, as originally drafted, imposed a duty on NHS bodies to co-operate in such situations so as to give complainants a full, co-ordinated and comprehensive response. A specific patient-focused requirement of this sort would have been very helpful for patients making such complaints who may have to make two or more complaints, often with different timescales and stages. There is also the issue of complaints about failures of communication or service delivery between NHS providers. It is our experience that these are very difficult to pursue and secure a satisfactory outcome. However, following the decision to phase implementation (see paragraph 9) Ministers decided to leave local resolution unchanged. This meant that all new requirements, including the duty to cooperate, were removed from the interim regulations. The Department of Health has, however, said that it intends to reintroduce the requirement when it issues amended regulations later this year.
E2470/04
The Ombudsman upheld Mr Q's complaint of unreasonable delay in diagnosis and treatment of his late wife's ovarian cancer owing to failures in communication between the GP and two hospital consultants who worked in both the NHS and a private hospital.
In January 2002 Mrs Q was referred by her GP to a consultant surgeon at a private hospital. After the consultation, the consultant arranged for an ultra sound scan and barium enema to be carried out. He wrote to the GP in early February but the letter was not entered on to the GP practice's electronic records system until late April. A few days before the tests were due to take place, a second GP, who was unaware of the surgical consultation and planned tests, referred Mrs Q, who was by then suffering from breathing problems, to a consultant physician in respiratory disorders at the private hospital and she was admitted. Later Mrs Q was transferred to a NHS hospital but remained under the care of the same consultant physician, who also worked there for the NHS. It was not established whether or not a photocopy of the consultant physician's notes travelled with her but the consultant surgeon's notes did not.
Mr Q informed the consultant surgeon's secretary that his wife was in hospital and could not, therefore, undergo the planned tests. However, the consultant physician and the consultant surgeon did not make contact and, a month later, it was Mr Q who contacted the consultant surgeon to rearrange the tests. They were re-scheduled for 10 days later. The connection between what were, apparently, two different sets of symptoms was not made; neither was a diagnosis of Mrs Q's illness. Eight days after that Mr and Mrs Q were shocked to be informed that Mrs Q had ovarian cancer. She died two months later.
NHS Foundation Trusts
26. Provision was made in the Health and Social Care (Community Health and Standards) Act 2003
for the establishment of NHS Foundation Trusts and by July 2004 the first 20 had been authorised. They were established to move management of local health services away from the Secretary of State for Health to local control. NHS Foundation Trusts have to achieve national targets and standards, but have freedom to decide how to deliver this. The Government's aim is to enable all NHS Trusts to apply for foundation status by 2008. But NHS Foundation Trusts - an increasing element of NHS care - are treated differently under the NHS complaints procedure.
27. Although subject to national targets and standards, the local resolution aspects of the 2004 regulations do not apply to NHS Foundation Trusts: indeed the regulations make specific provision for the situation where an NHS Foundation Trust does not have a complaints procedure.
28. An independent provider of NHS services must ensure arrangements are in place for the handling and consideration of complaints about any matter connected with its provision of services as if the NHS complaints regulations applied. That is only right: it would be quite wrong for NHS patients referred to independent providers to have less opportunity to have any concerns considered than those having services provided directly by the NHS.
29. The intention is that similar provision applies to NHS Foundation Trusts. We understand that at present they continue to operate local resolution procedures which they were required to have prior to their change of status. The Model Contract used when they provide NHS services requires them to maintain an NHS complaints procedure 'compliant with all applicable Law (including any NHS complaints Regulations in force)'. However the 2004 Regulations do not apply to them as regards local resolution, so further clarification would be helpful.
30. We acknowledge that NHS Foundation Trusts are expected to provide high quality patient services and so should be in the vanguard of providing patient-centred complaint handling arrangements which enable them to improve their services. There should be no possibility of a NHS Foundation Trust's patient receiving a poorer complaints service than any other NHS patient. But it is the potential for confusion and inconsistency which is of concern to patients who, for example, have complaints about both a NHS Foundation Trust and other NHS bodies. It is possible for NHS Foundation Trusts to run separate systems which may, for example, reduce the opportunity for a joint approach to a complaint about the co-ordination of specialist care shared between a regional centre and a local hospital, when one is an NHS Foundation Trust and the other is not.
31. The Healthcare Commission can consider complaints about NHS Foundation Trusts in a similar way to those about any other NHS bodies where a complainant is not satisfied with the outcome of an investigation by an NHS Foundation Trust or it has no complaints procedure.
Complaints about both health and social services
32. At present the social services complaints procedure is entirely separate from the NHS complaints procedure. This can cause problems for users of both sets of services when things go wrong.
33. Many of those who receive both services are elderly, frail or suffer from long term, disabling conditions. Complaints can arise about both health and social services or about how they have worked (or not worked) together and it is not always clear to service users which organisation is responsible for the services they receive.
34. From complaints we have seen in the past, it is evident that cross-boundary complaints have often been handled very poorly. In some cases complainants were not told promptly of the respective roles and responsibilities of health and social services organisations. Sometimes they were not advised that they would need to pursue the health and social services aspects of their complaint through two separate procedures. We have seen cases where only at the conclusion of one complaints procedure was it clear that the fault lay with the other organisation.
E.629/02
Mrs H and her family were invited to a care- planning meeting to discuss arrangements for her mother's discharge from hospital. Staff from the acute Trust, the Community Trust and Social Services were present. When Mrs H later complained about the refusal to carry out a full continuing care assessment of her mother's needs, and the lack of information about the financial implications of placing her mother in a nursing home, she faced difficulties in addressing her complaints to the right body.
The acute Trust turned her complaints away and directed her to the Community Trust. When Mrs H brought in the acute Trust's patients' representative and asked him who was responsible for the care-planning meeting, he directed her to Social Services. In the end the Ombudsman investigated the actions of the acute Trust and the PCT, which now employs a key member of staff of the former Community Trust. The Local Government Ombudsman investigated the actions of the Local Authority Social Services Department.
Both Ombudsmen upheld the complaints. The acute Trust liaised with the Local Authority and a satisfactory financial remedy for Mrs H was obtained.
E.1324/02
Mrs X, who was in her late eighties and whose behaviour was becoming increasingly confused and aggressive, underwent a mental health assessment at a day centre. Present were: the consultant and his senior house officer (SHO); the approved social worker; the day centre manager; and the GP. After assessment, Mrs X was taken to hospital on a voluntary basis. Later she was detained under the Mental Health Act. Mrs X's family had expected to be present when their mother's future was decided. That did not happen and they later complained about the way in which she was assessed and detained, and about aspects of her care by the Trust.
Mrs X's family complained to Social Services about the actions of the social worker and their complaint culminated in the final stage of social services departments' local complaints procedure. However, some issues remained unresolved.
The family also complained to the Health Service Ombudsman after the Trust had failed to resolve several issues arising from Mrs X's care and treatment. Over time, their initial grievances became compounded by their dissatisfaction with the Trust's handling of their complaint.
It took 123 weeks for the Trust to deal with the family's complaints. It is evident that delays were compounded by the Trust having to investigate the complaint in conjunction with Social Services.
The Ombudsman upheld part of the complaint about the Trust. However, our investigation revealed that the social worker's actions were a major factor in the complaint, which the social services' investigation had not uncovered. The actions of staff employed by social services departments were not within the Health Service Ombudsman's jurisdiction and, therefore, she could not make findings on the part played by the social worker in relation to the detention of Mrs X.
E.748/05
The Ombudsman received a complaint from Miss B (who was expecting a baby) that the Trust had provided her with an inadequate explanation of the reasons for her referral to Social Services by a midwife and had not discovered the source of incorrect and misleading information forwarded on by the midwife.
The Ombudsman's investigation revealed information about social services' involvement which had not been uncovered by the Trust.
The midwife had been trying to arrange a multi-agency support package for Miss B - as recommended in Guidance entitled 'Working together to safeguard children', which was published jointly by the Department of Health, the Home Office and the Department for Education and Employment, in 1991. The guidance describes how all agencies and professionals should work together to promote children's welfare and protect them. However, when Miss B thought she had cause for complaint which seemed to span both health and social services, there was no clear way forward.
Indeed, the Ombudsman found that social services, not the midwife, were the source of the incorrect information. However, the Health Service Ombudsman has no jurisdiction over the actions of social services' staff, and could not, therefore, comment on their actions.
2003 Provision for improvements
35. We welcomed the Health and Social Care (Community Health and Standards) Act 2003 provisions for similar new health and social care complaints procedures, which allowed for a complaint to be made either to the NHS or to social services. It was envisaged that the two systems would 'operate as far as possible in parallel so that for the complainant it appears as one system'.
36. However, to date, despite some work on developing regulations and guidance on social care which are similar to those on health care, no regulation has been made about the joint consideration of complaints. The situation was further complicated by the need separately to consider the adults' and children's parts of the social services procedures.
37. In October 2004 two separate consultations, by the Department of Health and the Department for Education and Skills, on the adults' and children's parts of the complaints regulations respectively, began. A month earlier the Commission for Social Care Inspection (CSCI) had begun to consult on the independent review stage.
38. There was a widespread commitment to joining up health and social services complaints approach. Originally it had been hoped to launch the two new health and social service complaints procedures simultaneously in 2004 but this did not happen. Implementation of the new social services procedure was planned for April 2005 but is now likely to be later, to allow time for preparation.
Joint working - first and second stage
39. The draft Social Services Complaints Regulations do contain provision for complaints made under the adult social services procedure but which also involve health matters, to be made to the local authority. The complaints manager must then consult with the complaints managers of the other bodies involved and decide who should take the lead. Where practicable a report should be prepared dealing with all aspects of the complaint. But there is no such provision relating to complaints made under the children's procedure in the draft Representations (Children) Regulations.
40. If provision were made for complaints made under the social services children's procedure to be dealt with in the same collaborative way, it would be a good step forward. Similarly, to complete the joint approach, the NHS complaints regulations need to include analogous provision for collaboration with social services.
41. There are also various differences in procedures and timescales for the local resolution stage of health and social services complaints which seem likely to cause unnecessary difficulty for complainants. Perhaps, most significantly, the health service time limit for making a complaint is six months but draft social services procedures allow 12 months.
42. At the independent review stage, however, the draft regulations allow for joint handling of complaints by the Healthcare Commission and CSCI, whether those complaints are made initially under the social services' adults' or children's procedures.
43. The Health and Social Care (Community Health and Standards) Act 2003 also amended the existing statutory social services complaints procedure, and placed a duty upon CSCI to work closely with the Healthcare Commission in matters of complaints concerning joint health and social care provision. Both the Healthcare Commission and CSCI have made general statements about working together but neither has yet given any real indication of how this will work in practice.
Procedural differences between the Healthcare Commission and CSCI
44. We recognise that there are differences in the way complaints have been dealt with in the past under the separate health and social services systems. There are also differences in the procedures which both the Healthcare Commission and CSCI have said they will use. For example:
the Healthcare Commission describe panels using the results of the Commission's own (stage two) preceding investigation; CSCI envisage panels using information gathered at local resolution; both would allow representations from both sides;
the Healthcare Commission will give the panel chair the final say in any disagreement about the conduct of a panel; CSCI say the conduct of the panel will be determined by the majority;
the Healthcare Commission have a detailed target system for timescales for handling complaints; CSCI a much broader framework with shorter overall targets. For example, the former have a target of four months from request to completion of a panel; CSCI propose 45 working days (about two months). The Healthcare Commission say they are now looking at a broader framework of timescales similar to CSCI to facilitate the handling of combined complaints.
45. We have experience of working jointly with other Ombudsmen to investigate complaints which straddle the boundaries of health and social care. By adopting a creative and positive approach to joint working, we manage to overcome many of the difficulties which our separate legislations impose on our work. It is much more difficult to provide a seamless service under significantly different procedural frameworks. The new parallel legislation on health and social services complaints provides the opportunity to co-ordinate the two systems; it should not be missed. Clearly it would not be helpful to straitjacket the procedures into exactly the same format where differences in approach would be helpful. However, unless joint working has been properly considered from the start, the needs of service users will not be well served.
Joined-up and patient-focused?
46. We have grave concerns that if cross-cutting health and social care complaints remain unresolved at the end of the second stage of the different complaints procedures, and a third and final tier is needed, the difficulties for the complainant will multiply.
47. To illustrate this let us take a hypothetical, but not untypical, case study involving a 14 year old girl, Jane. Jane suffers from a mental illness and receives care from her local mental health trust and social services. She also regularly injures herself and on those occasions requires admission to the local acute trust, which now has Foundation status. Something goes wrong and Jane tries to complain about an event in her continuing care and treatment which crosses the boundaries of the various systems. Local resolution fails to answer her complaint so Jane wants to ask for an independent review. At each stage she might need to approach three different bodies:
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(The situation is no simpler if Jane wants to involve an Ombudsman at any stage. Not only might she have to approach both Health and Local Government Ombudsmen to cover the full range of her original complaint, but if she had concerns about how it was handled by Monitor or CSCI she would also need to approach the Parliamentary Ombudsman.)
48. In our view, it is quite wrong that there is no over-arching joined-up complaints framework which attempts to address these issues. As we have already noted, those who receive services both from the NHS and social services are among the most vulnerable members of society. Such a convoluted system seems to work against the aim expressed in the NHS Improvement Plan 2004 to 'put people at the heart of public services'.
Complaints system not centred on patients' needs
Inflexible processes
49. Much emphasis is currently being placed on moves to make the NHS work in a way which better meets the needs of patients: and rightly so. Too often in the past the focus was on a clinical or managerial perspective. That is not appropriate for a publicly funded service in the 21st century. A real commitment to a patient-centred service means accepting that it is only right for patients to be able to express any dissatisfaction they may have with the NHS and that the system which considers their concerns should be customer-focused.
50. The survey of complainants to our Office carried out on our behalf by MORI in 2004 found that:
- by the time complainants get to us, at the end of a protracted complaints procedure, they feel isolated and exhausted;
- complainants want to talk to someone about their complaint and to know who will be dealing with it and how it will be dealt with. They want to know how their complaint is progressing and be updated on our work and thinking;
- complainants want an appropriate outcome to their complaint, usually an apology, where appropriate, a change in working practices so that it does not happen to someone else, and for someone to be held accountable for what went wrong;
- few complainants started out to seek financial recompense. But the process itself makes them more likely to ask for financial redress because of the time and effort they have expended in trying to get their complaint resolved. Worse - when compensation is offered, a small amount can antagonise them even further.
51. We have tested these findings with complaint handlers in the NHS who have told us that they reflect what complainants say to them. Every complaint and complainant is different: one size and shape of procedure will not fit all circumstances. To be patient-focused a complaints system needs to have sufficient flexibility to meet these varying needs. Our surveys of complainants who approach us demonstrate that complainants recognise that some complaints will take longer than others to resolve because of differences in complexity, seriousness and the scale of investigation work required. They want a fit for purpose response to them and their complaint, with a focus on appropriate resolution, not a one size fits all process. Complainants are prepared to wait for a comprehensive investigation and response, so long as the reasons for this are explained and they are kept informed of progress. The CPPIH expressed similar views on behalf of service users in their comments on the draft regulations: they would rather have a longer timescale which was adhered to than an ambitiously short one which proved difficult to meet.
52. There can be some tension between a desire to provide that flexibility and a wish to improve performance by setting explicit and measurable standards which all services must meet. Plainly, a clear basic framework needs to be given and some standards set. However, care is needed to avoid focusing on rigid time targets or developing complex procedures which will result in the needs of significant numbers of complainants not being met.
Speed of response/targets and timescales
53. Complainants are interested in outcomes, not time targets, but that is not how complainants or, indeed, complaint handlers experience the current system. The focus on process in the current Regulations and the significance of achieving the time targets for the star rating system has led to a perverse incentive for Trusts to make and communicate a decision, signed by the Chief Executive, within 20 working days. Unfortunately, we have seen many instances where the pressure to communicate a timely decision has outweighed the need to consider the complaint properly.
54. To make matters worse, there is no further target which is monitored centrally. We have seen many cases where a complainant expressing legitimate dissatisfaction with that first decision has waited months for a response. While, therefore, one size fits all targets are unhelpful, complainants do need to know, at the outset, how long a decision on their complaint is likely to take and to be told of any changes to that timescale.
55. In November 2004 the Healthcare Commission undertook a consultation exercise on the approach they should take in assessing whether organisations meet the Department of Health's Standards for Better Health. The consultation is proposing that the assessment for the core standard on complaint handling is based on more than the timeliness of response and we welcome this.
56. Introducing unnecessary complexity to the procedures for complaint handling will exacerbate difficulties in responding in a timely way. This is perhaps most apparent in the detailed procedures adopted by the Healthcare Commission. The regulations rightly give them considerable discretion on how to handle complaints including the option to go direct to a panel hearing. However the Commission's procedures have suggested that they intend to use panels mainly as an additional stage: if a complainant remains dissatisfied following an initial review and investigation. The Commission say that they are motivated by the desire to give the patient 'the strongest sense of independent resolution', Given the ability of the complainant to appeal to the Ombudsman as a final recourse, used in this way the panel would appear only to lengthen and complicate matters for the complainant rather than speeding up and simplifying them.
Deterring primary care complaints
57. Another important aspect of complaints handling in the NHS which is not meeting patients' needs concerns complaints about primary care contractors (GPs, dentists, pharmacists and opticians). Currently patients can find themselves having to complain directly to the very person about whom they have a complaint. That person may also be the one who responds to them, without any input from a third party. For the patient, dealing directly with a practitioner with whom they have a continuing relationship can be very difficult.
E.1152/03
Mrs R asked Dr G to make a home visit to her mother and subsequently made a complaint about his behaviour. Dr G asked Mrs R's mother to find another doctor.
The Ombudsman investigated his action and upheld the complaint. She found that Dr G had acted unreasonably by ending his professional relationship with Mrs R's mother as a result of Mrs R's complaint. It was inappropriate for a GP to try to remove a patient from his list because of difficulties with another member of the family.
Dr G agreed to familiarise himself with GMC, RCGP and BMA guidelines relating to removals from lists. He also agreed to familiarise himself with the statutory position from April 2004 whereby a GP normally needs to warn a patient before they can be removed. He also agreed to discuss his approach to complaint handling with the PCT.
58. For some time it was intended to resolve this problem through the new complaints procedure. Making things right proposed that patients, if they wished, should be able to complain direct to the PCT about a primary care contractor rather than to the practitioner. The original draft of the 2004 regulations made such provision and we supported that change. However no such provision was retained in the final version, though the Department of Health say that will be included in revised regulations in 2005. A patient-centred complaints system would recognise the difficulty for some patients in this situation and make provision for complaints to be made to the PCT. The 5th Shipman report recommended a much enhanced role for PCTs in handling complaints about GPs - including such direct access for complainants.
Need for support and advice
59. We recognise that access to special support can often help a complainant present their complaint effectively. Complainants may need help in writing their complaint, translation and the intervention of interpreters, or to talk to someone who can explain and help them through the present, complicated process. PALS and ICAS do provide such help and we have received complaints which are comprehensive, clear, thorough and well argued because of their involvement. Our knowledge of complaints supports the recommendations made by recent Inquiry reports about the need for competent and sensitive advocates.
Quality service
Inadequate investigation
60. Rigorous and evidence-based investigations by competent staff are essential. But, in our experience, both the quality of the complaint investigation and the competence of staff handling complaints vary significantly and are often inadequate for the task. We have received many complaints where the local resolution:
- had had no clinical input although the complaint was about diagnosis and treatment;
- was based on inadequate or uncorroborated evidence;
- was flawed because of the partiality or perceived partiality of the reviewer;
- accepted the views of Trust staff without question;
- did not cover all aspects of the complaint;
- was based on poor analysis and judgment;
- was poorly documented and failed to give reasons for the decision.
Such concerns have been highlighted in a number of recent Inquiry reports. Different perceptions of the quality of local investigation in health and social services, (ie that in the past it has been less robust in the NHS), have also contributed to the differences in approach between CSCI and the Healthcare Commission, though the Healthcare Commission are anxious to use their powers to help ensure that local investigation and resolution in the NHS is more effective. However, we do see examples of good complaint handling, too:
E.2146/03
Mr S complained about his diagnosis and the care provided to him within a Trust's general mental health and psychotherapy services. Mr S sent numerous letters to Trust personnel which all sought to expand his original complaint.
The Trust investigated his complaints speedily and a response from the Chief executive was sent to Mr S a month after he submitted a formal complaint. A subsequent letter offered a further attempt at local resolution but once that had again failed, the complaint was referred to the convener for possible independent review. The convener took appropriate clinical advice and rejected the request for a review. Mr S complained to the Ombudsman.
The Ombudsman decided not to investigate Mr S's complaint. She had no concerns about the standard of care given to Mr S and commended the Trust for making significant and strenuous efforts to address all Mr S's complaints with considerable patience, understanding and sensitivity, and in a timely way.
Lack of capacity and competence
61. Often the shortcomings in the investigation relate directly to the lack of competence of the staff handling the complaint. Local complaint handlers are often junior staff, selected for their interpersonal skills, but not necessarily their analytical skills. For example, it is still not uncommon for the former secretary to the Chief Executive to lead on complaints. Certainly it is rare to find that all front line staff have received training in handling complaints.
62. One of the recommendations of the evaluation of the old complaints procedure [1] was that Boards of NHS bodies should ensure that:
all staff are adequately trained to deal with complaints and are supported in the event of a complaint being made against them. Training in handling complaints should be a compulsory part of induction and continuing education;
staff managing complaints are appropriately trained, have adequate administrative resource and access to senior managerial supervision and support.
63. An early draft of the current regulations contained a requirement[2] that NHS bodies must ensure staff were appropriately trained in the operation of the complaints arrangements. There is no mention of training in the final version or in the guidance. The Department says that this requirement will be reintroduced in revised regulations to be issued this year.
64. We welcome the fact that training initiatives in complaint handling are underway. The NHS and Middlesex Universities are developing an accredited qualification in complaint management, which will be relevant to those with specific responsibilities for complaints. The present good practice toolkit for local resolution (developed under the old complaints system) includes a list of competencies for complaints managers. However this has not been revised and strengthened to match the new system and there is no evidence of which we are aware that these competencies have been widely embraced at the local level. A crucial point in complaint management is the time that concerns are first raised and this means that all staff need to have a basic understanding of how to deal with complaints and concerns and the communication skills to do so effectively.
65. Whilst developments in training and guidance are to be encouraged, the general pace of progress in this area and the emphasis placed upon it is disappointingly limited in an NHS which aims to be more patient-centred. As the Department's evaluation and subsequent inquiries have recognised, there has not been sufficient emphasis on developing a group of appropriately influential and competent staff to undertake thorough and open complaint investigations.
Leadership, culture and governance
Strong leadership and a learning culture
66. In our experience, clear, positive leadership is essential for the development of an open, learning culture in which complaints are welcomed and resolved and lessons learned. Certainly we have direct experience of clusters of complaints against specific trusts or other bodies which reflect a defensive approach to complainants, and indeed us, by the Chief Executive. Those organisations, despite ostensibly accepting our recommendations, have failed to address systemic issues and created a context for repeated mistakes and complaints. Chief Executives who welcome complaints and support a learning rather than a blame culture by their own example, rarely have complaints upheld by this office.
Governance and accountability
67. The Department's 2001 evaluation report recommended that the Board of every NHS organisation should be held accountable for the performance of the organisation in handling complaints. We wholeheartedly endorse that. It is the Board and Chief Executive who can create a culture of openness and learning, monitor performance on complaints handling, and make effective connections with clinical governance.
68. The 2004 regulations require a Board member to take responsibility for ensuring compliance with the arrangements and that action is taken in the light of the outcome of any investigation. While that goes some way towards building a framework of accountability, it is not sufficient. There is nothing to prevent the Board level sponsor from being an executive director who is already managerially accountable for complaint handling, and who may have a vested interest in convincing the Board that all is well.
69. The evaluation also recommended that Boards had to ensure that agreed actions were implemented. But the 2004 regulations are weaker, requiring only that the designated Board member must ensure that action is taken in the light of the outcome of an investigation. That leaves scope for the wider Board not to accept accountability and for partial implementation of agreed actions. Our own experience has shown us that some NHS bodies lose interest in the outcome of complaints once a response promising action has been sent and implementation may be poorly monitored. It is important in a patient-centred service that actions are delivered and that implementation is monitored from outside the department concerned.
70. The 2001 evaluation report also recommended that complaints handling should be an explicit part of the performance management of Chairs and Chief Executives of NHS bodies. No such provision has been made.
Integration of complaints procedure with other NHS systems
71. Clearly the NHS complaints system should not operate in isolation. The original evaluation recognised this and recommended that Boards should ensure that 'the complaints procedure is integrated into the clinical governance/quality framework of the organisation.' That is not fully reflected in the regulations or guidance. The guidance says only that the designated Board member for complaints 'may' wish to link the complaints procedure with clinical governance processes and risk management strategies.
72. It is essential that connections are made which facilitate learning from complaints. At national level the integration of the second stage of the procedure into the Healthcare Commission's work should provide that connection. But matters should not have to reach the Healthcare Commission before such a connection can be made and lessons can be learned.
73. Since the evaluation there have been many relevant developments at national and local level, particularly in patient and public involvement, and links between these and complaints systems will also be important, especially in improving patient focus. However it is less clear how and whether links will be made with other work, especially at local level. In particular, there is no reference in the present complaints regulations and guidance to establishing links with Patients Forums despite there being real potential in involving them (and ICAS and PALS) in reviewing plans for, performance and outcomes of complaints procedures. Indeed, in commenting on the role of Patient Forums, we have supported the suggestion that such forums could usefully check whether recommendations have been followed up.
Just remedies
Long standing concerns
74. The existing NHS complaints system says nothing about financial redress, and it is rarely, if ever, recommended or paid. Financial regulations governing the NHS have sometimes been quoted as preventing this. But NHS bodies may make special payments where there has been a financial loss as a result of the actions or omissions of the NHS body. Other payments may be made in exceptional circumstances. We have increasingly been recommending, and securing, financial redress for complainants from NHS bodies in appropriate circumstances. But, in effect, other than by submitting a complaint to the Ombudsman, financial redress has generally only been available through legal action for medical negligence. Complainants who have given any indication that they intended to take legal action have been excluded from the complaints procedure.
75. We have been raising our concerns about this situation for several years. In our annual report for 1998-1999, we pointed out that:
'It is relatively easy to decide the appropriate way of dealing with the extremes: for example, clinical negligence causing serious damage is appropriate for the courts; relatively minor shortcomings without serious consequences can be dealt with by an effective and responsive complaints procedure. It is the middle group of cases, lying between the extremes, which is more difficult to deal with. Those are cases in which the complainant has suffered significant loss or damage through what he or she perceives - sometimes rightly - as shortcomings in the standard of care which do not amount to negligence as that term is understood by the courts. As things now stand, complainants in such circumstances have no means of pursing their case except through the courts. Their case will probably fail; so that they will be left with an unremedied grievance, which on some occasions may be justified, and legal costs to pay as well. In this respect the NHS treats complainants worse than either central or local government. Both central and local government are willing, if they consider a complaint justified, even if there is no legal liability, not only to give financial compensation for any ascertainable loss due to their failings, but also to make payment for distress-including any distress occasioned by difficulty in having the complaint accepted.'
76. The issue was again raised in our Annual Report for 2003-04:
'It is . important that injustice is fully and appropriately remedied. Most complainants want to understand what went wrong and to receive an apology for the distress caused. The concept of financial redress has gained ground in central and local government, but there is a marked reluctance to accept it in the NHS. It is gratifying to note, therefore, that there are several examples of trusts agreeing to offer a financial remedy to complainants as recompense for the severe difficulties they had experienced in trying to make their complaints. For example, a trust which had consistently failed to deal with a request for an independent review agreed to our recommendation that the complainant should receive an ex gratia payment in recognition of the inconvenience he had suffered. We aim to see the NHS aligning itself with other parts of the public sector in this regard and we will continue to promote discussion within the NHS about this significant issue for complainants.'
Limited scope of the proposed NHS redress scheme
77. None of the recent documents about the reform of the complaints procedure says how, if at all, it is planned to relate to the NHS redress scheme proposed in Making amends.
78. The NHS redress scheme, as described in Making amends, would be limited to cases where there were serious shortcomings in the standards of care and where the adverse outcome is not the result of natural progress of a disease. But there are situations where significant, but perhaps not in themselves serious, lapses in standards of care can have detrimental consequences which are highly significant for the patient.
79. The proposed redress scheme rightly emphasises the responsibility of the NHS to deliver a package of care and remedial treatment by way of redress. But such NHS care and treatment, if required, should be provided in any event. There are also a number of situations where the NHS is at fault but no such remedial care and treatment is needed or possible and where, nevertheless, natural justice suggests that financial redress would be appropriate. That includes the most serious cases where the patient dies, and situations where the patient incurs significant unnecessary costs because of a non-clinical failing. The current proposals are too narrow to accommodate these situations.
Lack of clarity in current system
80. It is unclear what is intended to be done about financial redress under the new NHS complaints procedure. The 2003 Act says[3] regulations may include provision for recommendations about a complaint and the action to be taken as a result. However, the regulations refer only to a 'response' to the complaint and say nothing about any recommendations or action at local resolution[4]. Nor is the guidance significantly more helpful, saying only that 'An outcome, or explanation of planned action, should be included where the investigation finds that something could/should have been done differently, or if there is anything to be done as a result of the complaint'[5] and that 'it is good practice for replies to be as conciliatory as possible, including appropriate apologies'[6].
81. The Healthcare Commission's procedures allow an investigation report to explore 'any options for resolution'. It will include any recommendations for Publications or actions to rectify the situation. The procedures also state that panels will make two sets of recommendations when called for: one relating to redress for the individual and the other relating to improvements to services. However, their leaflet for complainants says that they cannot award compensation: and the Commission say that they have had legal advice to that effect.
82. It cannot be acceptable that those who have had their complaints upheld locally or by the Healthcare Commission can receive redress only by complaining to the Ombudsman's Office. There needs to be provision for a full range of remedies at all levels of the complaints system, including explanations, apologies, specific actions or treatment, and, where appropriate, financial compensation.
Problems with implementation
Delay
83. It has taken more than three years from the evaluation of the previous procedure, which indicated major problems, to the first changes being made. The changes are still far from complete.
84. The pattern in moving towards a new procedure seems to have been one of 'slippage and scramble'. The slippage is exemplified both by the time between the end of the listening exercise in October 2001 and the issue of Making things right over 18 months later in April 2003, and by the delay from intended full implementation in April 2004 to partial implementation at the end of July 2004. More changes are promised in 2005. The scramble is exemplified by the six week listening exercise in 2001 (rather than the usual three month consultation period) and the rushed finalisation of regulations for the Healthcare Commission's new role in July 2004. Such a pattern of long periods of comparative inactivity, interspersed with much shorter periods of frantic activity to unrealistic deadlines, is not conducive to well-planned and thought-through change.
Lack of preparedness and confusion
85. The result of the scramble for change was often confusion. The implementation of the 2004 regulations and the transfer of responsibility for the second stage of the procedure to the Healthcare Commission exemplify this. The Healthcare Commission formally came into existence in April 2004, although it had operated in shadow form for some time before that. Its complaints handling role was entirely new. At one point it had been hoped it could take on complaints from April 2004. However consultation on new draft regulations did not begin until December 2003 and this delayed their planned implementation until 1 June 2004. The original draft regulations included detailed changes relating to local resolution as well as defining the Healthcare Commission's new role. In March 2004 we raised concerns that it would be difficult, if not impossible, for the Healthcare Commission to deliver an effective complaints handling process from 1 June 2004 and that this risked bringing the new arrangements into disrepute from the outset.
86. The Department of Health gave little extra time to the Healthcare Commission to prepare for their new role, even though major changes to local resolution were postponed to 2005. By May 2004 it had been decided to introduce the changes affecting the Healthcare Commission on 1 July. In fact the relevant regulations were not laid until 9 July and came into force on 30 July.
87. The rushed introduction, and consequent lack of preparedness, impacted on both complainants and those trying to operate the procedure at all levels. Although the delay in the implementation of the original plans further weakened the effectiveness of the old system, this difficulty needed to be balanced with the confusion surrounding a rushed implementation. Implementing regulations three weeks after they were laid in Parliament gave inadequate time for the public, NHS staff, advisers and voluntary agencies to understand them and use them effectively. Guidance on the application of the regulations for NHS bodies other than the Healthcare Commission was not issued until 19 August, nearly three weeks after the regulations came into force.
88. Given that public confidence in the system was already low, as shown by the evaluation report published in 2001, we expressed our concern at the time that a bad start to the new system was likely to create a further loss in public confidence which would be difficult to overcome.
89. The Healthcare Commission had to build up their capacity to handle the second stage from scratch: an enormous task. By May 2004 they had developed their communications strategy, had filled 41 of the 70 posts they forecast they needed to handle complaints, and were recruiting lay people to sit on independent panels. They had been testing an IT system. Despite those achievements there was much to do. For example:
they were not able to issue information on how they would operate the second stage until July, and there was subsequent further review after that;
by May 2004 they had not developed a policy on access to expert advice (an important area, which had been a difficulty with the previous arrangements).
90. The Healthcare Commission say the IT system was fully operational by the launch of their complaints role and that they have been able to obtain expert advice for the cases they have considered. However they have received significantly more complaints than originally forecast. The overall effect for complainants has been a severe delay in having their complaints addressed. We have been in active dialogue with the Healthcare Commission and we are assured that they now have action in hand to address the backlog of complaints
Transitional arrangements
91. Transitional arrangements (for complaints part way through the old procedure) have also suffered in the scramble to introduce the new procedure. The 2004 regulations say that, where local resolution has already been completed and the complainant has requested an independent review under the old procedures, 'the independent review panel must be established in accordance with the former complaints provisions, conduct its investigation and make a report in accordance with those provisions.' This takes no account of the fact that under the old procedure conveners rejected a significant proportion of requests for independent review. Taken literally the regulations appear to suggest that a panel should be held in every case where the complainant requests it.
92. There is evidence that in practice there was considerable uncertainty about what could or should happen when complainants expressed dissatisfaction with the outcome of local resolution in June/July 2004, when there was confusion across the health service about when the new arrangements were to be introduced. The Department of Health clarified that, strictly, anyone who had made a panel request locally before 30 July 2004 should be allowed to proceed by that route if they wished. However, there also seems have been an understanding by the Healthcare Commission that the second stage for such complaints could be handled by them, from earlier in the summer. Some NHS bodies were referring requests for panels to the Healthcare Commission during July. This may have been a pragmatic approach, as local systems for arranging independent reviews were winding down, but given the confusion about what approach should be taken and the lack of publicity around the transition and new arrangements, complainants were unable to make an informed choice. We have seen a number of cases where complainants were given inaccurate information about the options for progressing their complaints - no doubt in good faith, by conveners or Trust staff who were unaware of the most recent changes to the proposed arrangements or timetable. It is essential that lessons are learned from this before new regulations are introduced in 2005.
Our commitment to collaboration and comment
93. Throughout the development of policy and regulations on complaint handling in the NHS we have been in dialogue with the Department of Health, either directly with officials or in formal responses to consultations. There have been many things to welcome, including the stated aims of making the system more accessible, responsive, independent and better linked to Publications. However, we have clearly expressed our concerns to the Department and indeed to the Public Administration Select Committee throughout this period. The Department's intention to issue further regulations in 2005, taking account of the Shipman and other Inquiries, presents a fresh opportunity to reflect on the shortcomings that still exist and what must be done to address them.
Footnotes
[1] 6.12
[2] 29
[3] Section 115(2)(h) and (i)
[4] (13)
[5] (3.55)
[6] (3.54)
