A new NHS complaints procedure was introduced in England on 1 April 2009.
A significant change that doctors need to be aware of is that the NHS complaints procedure now has just two stages: the first is local resolution; the second is referral to the Health Service Ombudsman.
Handling complaints well is vital to delivering responsive and effective services. Healthcare Commission statistics for 2007 showed that over a quarter of the complaints referred to the organisation had to be sent back to the trust because the original investigation and response was inadequate.
Poor complaints management can compound the damage to the relationship between the patient and the doctor, and also to relationships within the organisation.
Doctors who have made a mistake should provide a genuine apology, and a full explanation, to put things right where possible and to consider what they might do to prevent similar incidents occurring in the future.
Who can complain about their doctor or healthcare?
Complainants can be current or former patients or nominated representatives. Representatives can include a solicitor or an MP. If someone other than a patient makes a complaint it is important to ensure they have authority to do so.
If patients lack capacity to make decisions for themselves, the representative must be able to demonstrate sufficient interest in their welfare and be an appropriate person to act on their behalf.
How should a doctor respond to a complaint
Openness and accountability are important. The regulations require complaints (other than oral complaints that can be resolved in one working day) to be acknowledged within three working days.
The doctor should involve the complaints manager. Hospitals will have a complaints manager. They will coordinate the investigation of, and responses to, complaints as well as coordinating other requirements on the monitoring and reporting of complaints.
The complaints manager must make a written record of the date on which the complaint was received and needs to provide the complainant with a written record of the complaint, even if it was made verbally or electronically.
The complainant should be offered the opportunity to discuss an agreed approach to the complaint, either by telephone or in person. They should also be informed how the complaint is to be handled, for example details of how it will be investigated and of the expected timescales for a response.
If a response is not provided within six months, the complaints manager must write to the complainant and explain the delay.
If it’s possible to resolve a simple oral complaint within 24 hours and the patient is happy with the response, the regulations do not require a formal written response. A note of the oral complaint, and the response to it, should be made and kept in a complaint file.
The regulations require the doctor’s response to contain an explanation of how the complaint was investigated and details of the conclusions reached. It should identify any matters that need remedial action and explain whether such action is planned or has already taken place.
The report should also explain the complainant’s right to take the matter to the Health Service Ombudsman within 12 months if they’re dissatisfied with the response.
Signing off responses to complaints about doctors or treatment
Responsible bodies – such as hospital trusts, PCTs, primary care providers – are required to have a responsible person who will usually be the most senior person in the organisation, such as the chief executive. This person, or someone authorised to act on their behalf, must sign off all complaint responses and remains accountable under the regulations.
The role of the Health Service Ombudsman
In deciding whether to dismiss or investigate a complaint, the Ombudsman has access to all the paperwork generated by local resolution and has powers to compel disclosure of documents and the attendance of witnesses, if witnesses.
If an investigation goes a head, the practical aspects are usually undertaken by the Ombudsman’s representative, who will interview all those involved. While a professional ‘friend’ may accompany the doctor to the interview, a detailed discussion with an indemnifier’s medico-legal adviser in advance is recommended.
A confidential draft report is prepared for the complainant and doctor to check for accuracy. Doctors may need professional advice to correct errors of fact. A doctor may not challenge the conclusions that the Ombudsman draws from the agreed facts of the case, though representations can sometimes be made in relation to the conclusions and recommendations.
The final report is sent to all interested parties, including the chief executive of the responsible body for action on recommendations.
Key changes from the old NHS complaints system
The previous regulations required a full, detailed and positive response to be provided within 20 days of receipt in secondary care. These restrictive limits were removed to allow for more investigation at the local resolution stage. The new regulations do not set timescales, however they do require a timely and appropriate response.
In the old complaints procedure, the second stage used to be an independent review by the Healthcare Commission. This no longer exists.
The new regulations are being applied in England. There are some differences in the way procedures in Scotland, Wales and Northern Ireland, and further information on these should be sought.
The GMC’s role in complaint handling
It’s recommended that, whenever possible, patients take their concerns through local procedures before reporting a case to the GMC. Similarly, if a medical professional has concerns about one of their colleagues the GMC would normally expect them to deal with the problem at a local level first of all.
The regulator will, however, always consider any concerns about a doctor that are brought to our attention.
The GMC will get involved if it deems that a doctor’s fitness to practise is impaired. Typical reasons include misconduct, poor performance, a criminal conviction or caution, physical or mental ill health.
If a doctor’s fitness to practise is found to be impaired, the GMC can suspend or remove them from the medical register or place conditions on their registration. It can also issue a warning to a doctor if their fitness to practise is not impaired but there has been a significant departure from the principles set out in our guidance booklet for doctors Good Medical Practice.
Guidance for MDU members
MPS on good complaints handling