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Selected Investigations Completed April - September 1997 > Part II, Case no. E.1636/96-97
Matters considered: Convener's consideration of request for an independent review (IR)
Complaint against:
City Hospital NHS Trust
Complaint as put by the Community Health Council (CHC)
1. The account of the complaint provided by the CHC on the complainant's behalf was that on 14 March 1996, she complained about the care and treatment provided to her late mother, when she was an inpatient at the City Hospital, Birmingham, during January and February 1996. The hospital is managed by the Trust. The general manager of the Trust (the general manager) replied on 29 May 1996, and a meeting was held with the family on 7 August, but the complainant remained dissatisfied. She wrote to the general manager on 26 August setting out her outstanding grievances and requested an independent review of her concerns. On 28 November the convener told the complainant that he had considered her grievances and had concluded that there was no justification for two aspects of her complaint. On a third he concluded that there had been a delay in providing the complainant's mother with a special pressure relieving mattress. He made recommendations to the Trust about that and other aspects of the complaint. The convener apologised for the failure he had identified, but said that he had concluded that an independent review would not be appropriate.
2. The complaints investigated were that the convener:
- failed to take appropriate professional advice on the nursing aspects of the complainant's complaint;
- exceeded his responsibilities in conducting his own investigation and deciding that there was no justification for some of the complainant's complaints, and;
- failed to address all of the complainant's grievances.
Investigation
3. The comments of the Trust were obtained and relevant papers were examined. The convener was interviewed by one of the Commissioner's investigating officers. I have not put into this report every detail investigated but I am satisfied that no matter of significance has been overlooked.
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Complaint (a): failure to take appropriate professional advice. National guidance
4. On 1 April 1996 new national procedures for the handling of complaints in the NHS were introduced. The NHS Executive produced guidance on the implementation of the new procedures in a booklet entitled 'Complaints, Listening ... Acting ... Improving'. The guidance, published in March 1996, includes:
'Where a complaint appears to relate in whole or in part to action taken in consequence of the exercise of clinical judgement, the convener must take appropriate clinical advice in deciding whether to convene a panel.'
and
'Such advice is expected to come at least initially from within the trust, but not from anyone who is in any way associated with the complaint.'
The complainant's evidence
5. In her letter of 26 August 1996 requesting an independent review the complainant stated that she wanted explanations of why protein drinks prescribed for her mother were not administered; the outcome of a review of the care of patients with pressure sores which the Trust told her they were undertaking; why the complainant's mother was discharged on 28 February 1996 when, in her family's opinion, she was not able to care for herself; and why she was left sitting in a chair for over four hours while waiting for an ambulance to take her home.
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Trust evidence
6. In his formal response at the start of this investigation, the general manager (who has since retired) wrote:-
'[The convener] believes that having examined the nursing records thoroughly and having spoken to a Tissue Viability Nurse [a specialist nurse who provides advice on wound management and pressure sores] at length and in detail he had obtained all the nursing information that he considered was necessary ....'
7. The convener told the Commissioner's investigator that as well as speaking to the tissue viability nurse he had an informal discussion with the Trust's nursing director. He made no notes of that discussion: its purpose had been only to obtain confirmation of what he had been told by the tissue viability nurse. He also took advice from the nursing director on the need to dilute protein drinks. He did not take advice on the complaint about the discharge assessment as he had already reached the conclusion that the complaint had been exaggerated by the family. He also considered that a community care worker who had been dealing with the complainant's mother had encouraged the complainant to complain. He took the view that it would never be possible to establish the truth about the discharge, as no-one would remember the complainant's mother leaving hospital.
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Finding (a)
8. I am satisfied that the convener took appropriate clinical advice on complaints about the complainant's mother's pressure sores and the giving of protein drinks. The convener should also have taken clinical advice on the complainant's complaint about her mother's discharge from hospital which concerned in part the correctness of the judgment that she was able to care for herself. The convener did not take advice on that aspect, having apparently reached the view that the complaint had been exaggerated and that it would not be possible to establish the facts relating to the discharge. I criticise him for that. I uphold this aspect of the complaint.
Complaints (b) and (c): convener conducted his own investigation, decided that some complaints were unjustified and failed to address all grievances
9. The national guidance referred to in paragraph 4 states that:
'In deciding whether to convene a panel, the convener will consider .... whether:
the trust .... can take any further action short of establishing a panel to satisfy the complainant
the trust .... has already taken all practical action and therefore establishing a panel would add no further value to the process.
'If either of the circumstances referred to above apply, the convener should not convene a panel. A panel should only be convened if the convener considers it may be able to resolve the complaint and that nothing short of setting up a panel will do so.'
The guidance further defines the role of the convener as being:
'.... to ensure that the complaint is dealt with impartially at the convening stage. It is not the function of the convener .... to defend those complained against, but rather to ascertain whether all opportunities for satisfying the complainant during Local Resolution have been explored and fully exhausted and what issues, if any, could be referred to a panel. To this end the convener will need to obtain a full picture of the events relating to the complaint. It is not the convener's role to try and resolve the complaint on his/her own.'
and
'The convener must inform the complainant .... [of] the reasons for any decision to refuse a panel, ....'
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10. In a letter which the convener wrote to the complainant on 25 November, conveying his decision on her request for an independent review of her complaint, he wrote that his role was 'to examine complaints impartially from a layman's perspective'. He continued:
'In the case of your complaints, I have undertaken the following tasks. I have read all the correspondence, including the internal memos, I have obtained your mother's complete medical file .... I have visited the hospital [and] interviewed the present tissue viability nurse .... to fully understand the issues surrounding pressure sores. This included examining the manufacturer's specifications of specialised mattresses, and then to actually see those mattresses in use.
'My understanding and summary of the complaints surrounding your mother's treatment falls into three parts, as follows.
- Protein drinks not being diluted.
- The circumstances surrounding [the complainant's mother's] discharge from the hospital.
- The treatment which your mother received in respect of dealing with pressure sores ....
'Normally in writing .... to a complainant, I set out the evidence .... [about] the particular complaints, and show my conclusions at the end of the letter. In this particular instance, I shall vary from that procedure as I can find no justification from my investigations in respect of complaints numbered i, and ii, above.'
As regards the complaint about pressure sores, the convener wrote that there was a 'narrow area in which one may conclude that your complaint may have validity' and that in that respect he would be making three recommendations to the Trust. The convener concluded:
'I hope you will accept the contents of my letter as having been prepared following substantial time of reading, investigation and interviews and that a fair open-handed decision has been reached.'
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11. On 31 December the CHC wrote to the convener that the complainant and her sister were dissatisfied with his decision. The CHC noted that the convener had not stated the basis on which he had reached the decision that there was no justification for the complaints about the protein drinks and the discharge and commented that 'If .... you hold to the view that a panel is not needed, the procedure provides that reasons are given for .... each aspect of the complaint ....'. The convener replied to the CHC on 27 January 1997: 'A convener is appointed to arbitrate in a dispute between parties .... The Convener considers the evidence available and ultimately reaches a decision as to who he is persuaded to believe ....'
12. The convener told the Commissioner's investigator he felt very strongly that he should be able to conduct a detailed investigation; otherwise it would be impossible to reach a balanced view about whether there was any justification for the complaint. He did not consider there was any value in a convener merely considering the process surrounding attempts at local resolution of a complaint. His normal practice when writing to a complainant would be to set out the evidence he had found on each aspect of a complaint and give his decision in terms such as 'I therefore find your complaint is not upheld'. He did not do that in the complainant's case but he felt that she would have understood that he had considered all her grievances. His letter of 28 November had been approved by the general manager and the medical director. It was his normal practice to ask them to check the contents of letters before he sent them and to make sure that he did not say anything medically incorrect. The convener commented he would never knowingly write anything to the detriment of the Trust (but see paragraph 14 below).
13. In his formal response at the start of this investigation the then general manager wrote:
'Unless we have misunderstood the complaint, neither [the convener] nor the Trust can understand how a convener can be expected to reach a balanced decision on whether or not to set up an Independent Review without undertaking his/her own detailed investigation ....'
and
'[The convener] believes and the Trust concurs, that he has answered three outstanding grievances ....'
14. At the conclusion of this investigation the current chief executive of the Trust, who took up post in August 1996, said he accepted that it was not the role of a convener to arbitrate in a dispute between parties. When the chief executive joined the Trust he had been concerned about the way in which complaints were handled and at the lack of support given to conveners. It was clear to him that in this case the convener had not been properly advised by senior Trust staff. There were weaknesses in procedures which the Trust had taken steps to rectify through protocols, discussions and training. As regards the convener's comment (paragraph 12) that he would 'never knowingly write anything to the detriment of the Trust', the chief executive said that he had discussed the matter with the convener who had assured him that he had meant merely that it was his practice to check the accuracy of his letters before sending them.
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Findings (b) and (c)
15. A convener has to understand the details and circumstances of a complaint so that he or she can decide, using the criteria set out in the national guidance (paragraph 9), whether a panel should be established. For that purpose, it is entirely appropriate to examine papers and seek information from staff, as the convener explained he had done when he wrote to the complainant on 25 November (paragraph 10). However, the convener saw the purpose of that process as being to enable him to arbitrate in a dispute between parties and reach a decision as to who he was persuaded to believe. That was a serious misunderstanding of his role. I strongly criticise the convener for that misunderstanding and for the partiality displayed in his judgment of the complaint and the reasons why it was made (paragraph 7). His comment to the Commissioner's investigating officer (paragraph 12) that he would never knowingly write anything to the detriment of the Trust was also, on the face of it, an indication of partiality. However, I note the explanation of that comment which he subsequently gave to the chief executive (paragraph 14) and am content to leave that matter there. I can see no justification for the convener's failure to explain the basis of his decision that an independent review would not be appropriate in respect of the complainant's complaints about the protein drinks and her mother's discharge from hospital. I uphold these aspects of the complaint.
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16. I consider it highly unsatisfactory that the new complaints procedures were not properly implemented. The current chief executive recognises that the convener did not receive proper advice and I am pleased that he has expressed to me his determination, through action in hand, to rectify weaknesses in complaints handling procedures. I recommend that the Trust should make sure that all its staff and conveners put into practice the national guidance. I invite the Trust to consider afresh the decision of their convener to refuse the complainant an independent review, in accordance with the procedures in the national guidance.
Conclusion
17. I have set out my findings in paragraphs 8, 15 and 16. The Trust have agreed to implement my recommendation and act on my invitation in paragraph 16. They have asked that I convey through my report—as I do—their apologies for the shortcomings which I have identified.
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Short text of this investigation
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