Foreword
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As Health Service Ombudsman, I conduct independent investigations of complaints about NHS providers and practitioners: the final stage in the complaints procedure. My investigations are carried out in private but I occasionally publish anonymised summaries of selected cases.
This is the first in what will be an ongoing series of published summaries about NHS complaints that I have investigated. My aim in publishing these summaries is to promote better and more consistent complaint handling in the NHS and to demonstrate how I expect the NHS to put things right when things have gone wrong.
The cases have been chosen as apt illustrations of good or poor practice in putting things right when they have gone wrong. They illustrate the variety and scope of my investigations about the NHS and the types of remedies secured as a result. Some of the cases focus specifically on complaint handling (by the provider, the practitioner, the Healthcare Commission or a combination of two or more of these). Others involve failings in service provision – ranging from poor record keeping and poor communication with patients, relatives and carers to more serious clinical failings and, in one case, an avoidable death.
The cases also illustrate my ‘Principles for Remedy’. These Principles (which follow on from my ‘Principles of Good Administration’) set out my views on the Principles that should guide how public bodies provide remedies for injustice or hardship resulting from their maladministration or poor service. As well as explaining how I think public bodies should put things right when they have gone wrong, the ‘Principles for Remedy’ also confirm my own approach to recommending remedies when I have upheld a complaint.
In terms of putting things right, the Principles are:
- If possible, returning the complainant and, where appropriate, others who have suffered similar injustice or hardship to the position they would have been in if the maladministration or poor service had not occurred.
- If that is not possible, compensating the complainant and such others appropriately.
- Considering fully and seriously all forms of remedy (such as an apology, an explanation, remedial action to prevent a recurrence, or financial compensation).
- Providing the appropriate remedy in each case.
In some cases, a complainant might receive financial compensation for direct financial loss. Mrs G feared her daughter’s life was in danger following poor care and treatment for her eating disorder in an NHS unit. Mrs G took out a loan to pay for private treatment for her daughter. In response to my recommendations, the Trust agreed to reimburse Mrs G the cost of the private treatment and the interest paid on the loan.
Financial compensation for non-financial loss may also be an appropriate remedy in some cases. For example, in the case of Dr D, the complainant received financial compensation in recognition of the fact that the Trusts’ poor complaint handling resulted in her early retirement and significantly disrupted her personal and family life. In this case the complainant was a GP, illustrating that the Ombudsman can investigate complaints about the NHS from clinicians as well as those from patients or carers.
Many of the cases in this collection highlight the value of a sincere and timely apology and a well-reasoned explanation for what went wrong. In the case of Mrs N I found that she was not given sufficient information about the potential scarring she would have following surgery, and therefore the validity of her consent was undermined. This was a case where financial compensation could have been an appropriate remedy for the injustice suffered, but Mrs N was satisfied with an apology and an assurance that lessons had been learnt and that action would be taken to prevent a recurrence.
For those complained about, there can be reputational risks of complaints to the Ombudsman. Where appropriate, I will not hesitate to draw attention to those NHS providers and practitioners involved so that poor service is identified and lessons learnt.
One case which I wish to highlight is that of Dr Mrozinski. He refused to take part appropriately in the local complaint handling process and refused to pay the financial redress I recommended for the complainant in recognition of the unnecessary distress he had caused her. Such lack of insight and defensive behaviour deserve to be highlighted. I will not hesitate to use the sanction of publicity and draw Parliament’s attention to such behaviour. It contrasts sharply with the cases I see where staff providing NHS services respond openly and promptly to concerns. I have also included in this digest examples of cases where I have engaged a regulator (example 1, example 2), whether that is the Healthcare Commission or Monitor, in taking forward my recommendations. In the case of Mrs J, I decided to involve Monitor, the body which authorises and regulates NHS Foundation Trusts, because I was highly critical of the nursing care provided by the Trust but was not satisfied that the Trust had fully learnt the lessons from the events which prompted my investigation. Through the involvement of Monitor, I was assured that there would be an appropriate review of the Trust’s progress in learning lessons from the complaint. In this way, the regulator can work effectively with the Ombudsman to achieve service improvements.
The wider backdrop to this publication is the changing landscape of complaint handling. A new system for handling health and social care complaints is due to come into place in April 2009 and a pilot of the new arrangements began in April this year, with support and advice from this Office. The changes also put my role, and that of the Local Government Ombudsman, into sharper focus and give them greater prominence. This publication is therefore part of an ongoing dialogue with the NHS about what the Ombudsman expects of service commissioners, providers and complaint handlers under the new system.
I responded jointly with the Local Government Ombudsman to the proposals for a new system. We specifically welcomed the emphasis on effective complaint handling at local level; effective local leadership; a major cultural shift by the NHS from a defensive application of process to a welcome for the learning from complaints and a will to resolve them; the need for an outcome-based approach to complaints; and effective governance arrangements across all organisations to underpin and support this approach, and ensure that learning from complaints is shared across the NHS and social care.
There is one other aspect of these proposals that has my strong support: that is, the direct path from local resolution – if that should fail – to an independent Ombudsman.
Currently, the second stage of the NHS complaints procedure is provided by the review function of the Healthcare Commission, with a possible third stage when a case goes to the Ombudsman. (Review by the Local Government Ombudsman actually constitutes the fourth stage in the social care complaints process.) The changes which are planned for April 2009 will mean a simpler system that is less drawn out for both the complainant and the service provider. The regulator, the Care Quality Commission, will be able to focus on its core business of regulation and inspection, without the additional demand of complaint handling which sits uneasily with its primary role. And a strategic alliance between the Ombudsman and the regulator will ensure that any recommendations the Ombudsman may make for systemic change are complied with, and followed up in the inspection regime.
I am working closely with the Local Government Ombudsmen to make sure that there is a fully integrated approach to the complaints that cross boundaries between health and social care. We have already issued our first joint report into a complaint about health and social care and have more such cases in the pipeline.
In the short term, I recognise that the changes will result in an increase in the number of enquiries made to our Office and the number of investigations we undertake. We do not, however, expect to take on the same number of complaints for investigation as the Healthcare Commission has done. As evidence, I note that when the Scottish NHS complaints system moved to a similar model (at the time of the introduction of the Healthcare Commission in England), the number of investigations increased, but not unmanageably so. The Scottish Public Services Ombudsman accounts for this by the focus, during the transition stages, on effective local resolution, coupled with the disincentive of a referral to the Ombudsman, with the potential for adverse publicity which an Ombudsman’s finding can bring.
The focus on more effective local resolution is a key to making the new system work in practice. I would like to play my part in assisting NHS bodies to prepare for the changes. My ‘Principles of Good Administration’ set out the sorts of behaviour I expect when public bodies deliver public services; my ‘Principles for Remedy’ flow from the ‘Principles of Good Administration’ and, as noted above, set out my views on how public bodies should approach providing remedies. I have also recently issued for consultation my ‘Principles of Good Complaint Handling’.
This latest set of Principles will set out for complainants and bodies in jurisdiction what the Ombudsman expects by way of good complaint handling. The same six Principles will underpin this document, as they do its two predecessors, but apply them in the complaint handling context. So:
- Getting it right will be about getting the right leadership, governance and culture – ownership at the top of the organisation; about equipping and empowering decision makers on complaints; about focusing on outcomes not processes; and about signposting to the Ombudsman in the right way at the right time.
- Being customer focused will be about providing an accessible complaints service, with help to make complaints for those who need it: a service that is simple, speedy, joined-up with other providers, flexible, sensitive and tailored to people’s needs – not ‘one size fits all’.
- Being open and accountable will be about publicising complaints procedures clearly and well; about keeping proper records of complaints; and about giving reasons for decisions.
- Acting fairly and proportionately will be about decisions being reviewed by someone other than the original decision maker; about natural justice – to all the parties; and about not using sledgehammers to crack nuts.
- Putting things right will be about remedy. Not only apologies and explanations – important as they are – and not only changes to prevent a recurrence – important as they are, as well, but, as we have seen, financial remedies where they are justified and appropriate.
- Seeking continuous improvement will be about learning. But it will also be about attitude and culture. Is this an organisation which understands and practises learning from complaints?
As with all our Principles, those on complaint handling will not be a checklist to be applied mechanically. I am not in the business of providing a manual of how to stay on the right side of the Ombudsman. Rather, I am providing a framework of Principles. I expect public bodies to use their judgment in applying those Principles to produce reasonable, fair and proportionate results in the circumstances. I will adopt a similar approach.
I hope that my framework of Principles will prove useful to complaint handlers without tying them to precise and possibly unsuitable templates. Over time I will use my experience of them to feed back to the NHS lessons about both good and bad practice in complaint handling.
Finally, I did not think it was necessary to spell out the value of complaints in this foreword; the cases speak powerfully for themselves about the individual and public benefit of effectively resolved complaints. However, I do want to do more to tell the NHS about the Ombudsman’s role in the complaints system, and to encourage better and more consistent complaint handling practice across the NHS. This document is a key part of that ongoing process.
Ann Abraham
Parliamentary and Health Service Ombudsman
June 2008
