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Selected Investigations Completed October 1997 - March 1998 > Part II, Case no. E.371/97-98
Matters considered: The way a convener considered a request for an independent review (IR)
Complaint against: Eastbourne Hospitals NHS Trust
Complaint as put by Mr X
1. The account of the complaint provided by Mr X was that on 13 January 1997 he wrote to the Trust to complain about various aspects of the care received by his father while he was an inpatient in Eastbourne District Hospital (the hospital) in December 1996. The chief executive of the Trust replied to Mr X on 7 February but he was dissatisfied with that reply and on 3 and 12 March requested that an independent review panel (IRP) consider his complaints. On 16 April the Trust's convener wrote to Mr X and offered to meet him and his father. On 21 April Mr X wrote to the convener declining his offer of a meeting and again requested an IRP. On 6 May the convener refused the Mr X's request.
2. The complaint investigated was that the way the convener considered Mr X's requests for an independent panel was inappropriate.
Investigation
3. The statement of complaint for the investigation was issued on 26 September 1997. The comments of the Trust were obtained and relevant papers were examined. Evidence was taken from the Trust's convener and the lay chairman.
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Chronology
4. I set out below a summary of key correspondence:
3 March 1997 Mr X wrote to the chief executive requesting an independent review of his complaint.
16 April 1997 The convener wrote to Mr X. That letter included:
'I have had discussions with our medical director and our patient services director and I have also corresponded with the consultant ophthalmic surgeon (the ophthalmologist) who saw your father...'
The letter also reported the view of the ophthalmologist that a delay in referral to him by hospital staff, about which Mr X complained, had not led to any particular harm to his father. It concluded:
'Finally, I have discussed this case with the lay chairman and we feel that a further attempt at local resolution should be made before I make a decision about an [IRP].
'...As a first step, I would welcome the opportunity to see you and your father and [the medical director] and [the patient services director] will also see you both if you feel this will help.'
21 April 1997 Mr X wrote to the convener. That letter referred to several grievances and continued:
'We do not see how these issues can be clarified on a local basis, they have not been clarified to date. My father and I feel that only an [IRP] will make this possible.'
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29 April 1997 The convener wrote to the lay chairman and outlined Mr X's grievances along with responses from Trust staff. He asked for the lay chairman's views. That letter also included:
'The family have something of a history of complaints. [Mr X's father] was previously treated at Hastings and I understand that there was some feeling of relief when he moved to Eastbourne.
'...our administrative director had a long meeting with [Mr X's father] and described him as an "angry patient". He is ill and does not like it!
'It is difficult to know what the family want out of this. Taking the most charitable view, they are presumably looking to ensure that the same problem does not happen again to him or any other patient.'
6 May 1997 The convener wrote to Mr X refusing the request for an IRP, saying that the Trust had already taken all action that was reasonably possible.
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Guidance
5. Article 15(5) of the Secretary of State's directions to NHS trusts on hospital complaints procedures states:
'The convener shall not take action until he has received a statement that has been put in writing setting out the complaint and why the complainant is dissatisfied with the investigation of the initial complaint.'
6. 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 on how the convener should consider the complaint is contained in paragraph 6.8 of that guidance and includes:
'...It is important that [the convener] distances [himself] from those involved in the complaint. The convener's role is to ensure the complaint is dealt with impartially at the convening stage [and] 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 own.'
7. Article 16(1)(c) of the directions includes:
'...a convener shall where he is of the opinion that further action by the complaints manager or the chief executive may resolve the complaint, refer it back to the complaints manager or the chief executive for further investigation...'
8. In comments to the Commissioner the Trust's chief executive wrote:
'We do not believe that [the convener] made any attempt to resolve the complaint personally. He sought the advice of [the] ophthalmologist and he passed on [his] comments. This was only done to put [Mr X's] mind at rest and was not an attempt to resolve the complaint.
'[The convener] did invite [Mr X] and his father to meet him to clarify their remaining grievances and explain why they were dissatisfied with local attempts to resolve them. [Mr X] declined to do so. [The convener] did not discuss the case with any of the staff complained about.
'We consider that [the convener] acted in accordance with the national guidelines and as a consequence we do not believe that the complaint is justified.'
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9. In comments to the Commissioner the convener wrote:
'A difficulty with this case was one of communications. I offered to see [Mr X] and his father in the hope that he would talk to me to clarify precisely their remaining grievances and why they were dissatisfied with the outcome of local resolution. These offers were rejected.
'I fully discussed the case with our medical director and our then patient services director, neither had been involved previously with the complaint. I also obtained a report from the [ophthalmologist] involved in this case.
'I had several discussions with the Lay Chairman and we discussed at some length whether an [IRP] was appropriate in this case...'
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10. The convener said he contacted the ophthalmologist because he thought a letter from him would help to reassure Mr X and his father. He did not consider that in contacting the ophthalmologist he had investigated the complaint himself.
11. He suggested a meeting (16 April in paragraph 4) because it was a practice which had worked before with other complainants. He considered the Trust had done all they could to resolve the complaint but he felt a meeting with Mr X and his father might help to satisfy them.
12. He had tried to remain impartial but sometimes frustration could set in. The remarks about Mr X and his father, included in his letter dated 29 April to the lay chairman, were unfortunate. It had been inappropriate to write comments which might have influenced the chairman's opinion of Mr X and his father. Notwithstanding those remarks, he would have convened a panel had that been necessary. However he considered that the Trust had done all they could to resolve the complaint and that a panel was not appropriate.
13. He had seen a copy of a previous report (Case No: E.1028/96-97) by the Commissioner, which upheld to some extent complaints that a different convener at the Trust had attempted to resolve a complaint and had failed to distance himself from those involved. He considered that it had little in common with the complaint.
14. The lay chairman said that the convener's comments about Mr X had not affected his decision in any way. He did not think that a panel would add anything, though it might have reassured Mr X.
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Findings
15. The national guidance (paragraph 6) requires first that the convener approaches the complaint impartially and second that he ascertains whether local resolution has been exhausted and whether any issues could be referred to an IRP, without trying to resolve the complaint himself. As the convener now recognises, some of his remarks in his letter of 29 April to the lay chairman were inappropriate. In my view they left him open to suspicion of bias. I do not know whether the remarks were accurate. Even if they were, that someone has complained before or is angry is irrelevant to consideration of whether an IRP should be convened. The lay chairman and convener may have scrupulously avoided taking the remarks into account when considering the request for an IRP. However it would be unreasonable now to expect Mr X to have confidence that the decision had been taken impartially.
16. The convener also said that he did not consider that he had investigated the complaint himself. While there is a fine line between attempting to resolve the complaint and ascertaining the appropriateness of further local resolution or an IRP, it seems to me that the convener went too far. He sought further information from the ophthalmologist and passed it on to Mr X. He tried to arrange to meet Mr X. I do not doubt the convener's good intentions in those actions but I cannot see that they were appropriate to his role. If the convener considered that providing further information for Mr X might resolve the complaint then it should have been referred back for local resolution (paragraph 7). Similarly if further clarification of the complaints was required (as the chief executive's and convener's written comments suggest—paragraphs 8 and 9), then that should have been done much sooner and in writing (paragraph 5). The guidance is very clear that the convener should distance himself from those involved in the complaint. When a convener meets a complainant there is a real risk that, whatever the intended purpose, discussion will follow about the merits of the complaint and that the convener's independence will be jeopardised.
17. The Commissioner commented somewhat similarly when a different convener from the same Trust also became involved in investigating a complaint and failed to maintain a proper distance from those involved. The Trust agreed in March 1997 to remind conveners of the need to act wholly within the national guidelines. I was therefore concerned to find similar problems with this complaint in April and May 1997. I recommend that the Trust remind their conveners that is it not part of their role to investigate complaints and that they must avoid any actions which could jeopardise their impartiality in the eyes of those involved in the complaint. I uphold the complaint. I believe it would be unreasonable to expect the complainant to have confidence that the same convener and lay chairman could reconsider his complaint impartially. I invite the Trust, using an alternative convener, to consider afresh the decision.
Conclusion
18. I have set out my findings in paragraphs 15-17. The Trust have agreed to reconsider the convener's decision, after consideration by an alternative convener and have asked me to convey—as I do through my report—their apologies to Mr X for the shortcomings I have identified.
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