The NHS and social care complaints procedure was introduced in England on 1 April 2009. The local resolution stage is governed by the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009.
The complaints procedure applies to NHS bodies and all providers of NHS healthcare (including commissioning bodies and primary care providers).
It also applies to 'independent providers' - defined as voluntary and independent sector organisations providing healthcare in England under arrangements made with an NHS body - and to local authority adult social services.
These are all identified as 'responsible bodies' in the regulations.
Stages of a complaint
Stage one: local resolution
For example, in the GP practice or hospital. In our experience most complaints are resolved quickly and efficiently this way.
Stage two: Parliamentary and Health Service Ombudsman (PHSO)
If a complainant is still dissatisfied after stage one, they can complain to the Ombudsman.
Doctors who are being complained about can also take the case to the Ombudsman; for example, if they are not satisfied with a response given on their behalf by a commissioning body.
Who complaints are made to
Complaints can be made to the organisation providing care (eg, hospital or GP surgery) or directly to the commissioning body, which will consider if it can deal with the complaint or if it's more appropriate for the provider to respond.
Complaints must be made to either a primary care provider or the commissioning body - it can't be both. If the complaint is made to a GP or practice but the complainant is unhappy with the response, they can refer it to the Ombudsman if they want to have it independently reviewed.
The PHSO's 'My expectations for raising concerns and complaints' report, produced with Healthwatch and the Local Government Ombudsman, sets out their vision for good complaint handling.
If a responsible body receives a complaint it believes should have been made to a different body, it can send the complaint on. The other body can then handle the complaint as though it had received it first, but must acknowledge the complaint within three working days.
Complaints excluded from the procedure
- Complaints made by one NHS body against another.
- Complaints made by employees relating to their work for an NHS body.
- Oral complaints resolved to the complainant's satisfaction within one working day.
- Complaints about something that has previously been complained about and resolved.
- Complaints alleging that a public body failed to comply with a request for information under the Freedom of Information Act 2000.
- Complaints about non-NHS funded care provided solely by the independent sector, which has its own procedures.
If a responsible body believes it doesn't have to consider a complaint, it must tell the complainant in writing about the decision and its reasons.
Who can complain
- Complainants should normally be current or former patients, or their nominated or elected representatives.
- Patients over the age of 16 whose mental capacity is unimpaired should normally complain themselves or authorise someone to bring a complaint on their behalf.
- Children under the age of 16 can also make their own complaint, if they're able to do so.
Investigating a complaint doesn't remove the need to respect a patient's confidentiality. If someone other than the patient makes a complaint, you need to make sure they have authority to do so.
If patients lack capacity to make decisions, their representative must be able to demonstrate sufficient interest in the patient's welfare and be an appropriate person to act on their behalf. This could be a partner, relative or someone appointed under the Mental Capacity Act 2005 with lasting power of attorney.
In certain circumstances, the responsible body might need to check that a representative is an appropriate person to make a complaint.
- For example, if the complaint involves a child, the responsible body must satisfy itself that there are reasonable grounds for the representative to complain, rather than the child concerned.
- If the patient is a child or a patient who lacks capacity, the responsible body must also be satisfied that the representative is acting in the patient's best interests.
- If the responsible body is not satisfied that the representative is an appropriate person, it must not consider the complaint, giving the representative reasons for the decision in writing.
A complaint must be made within 12 months, either from the date of the incident or from when the complainant first knew about it.
The regulations state that a responsible body should consider a complaint after this time limit if:
- the complainant has good reason for doing so, and
- it's still possible to investigate the complaint fairly and effectively, despite the delay.
The MDU generally advises members to consider complaints made outside the time limit if it's possible to investigate them. Discuss any difficulties (for example, if relevant information is no longer available) with the complainant as soon as possible so they know what further steps, if any, they can reasonably take.
Your response to a complaint must be timely and appropriate. The regulations don't set timescales for the procedure itself, but they do state that if a response isn't given within six months, either from the date of the complaint or a later date agreed with the complainant, the complaints manager has to write to the complainant to explain the delay.
In the MDU's experience, patients who complain often want one or more of the following:
- a thorough investigation and explanation of what happened and why
- assurance it won't happen again
- an apology - a sincere expression of regret.
This is acknowledged in paragraph 31 of the GMC's 'Good medical practice':
- 'Patients who complain about the care or treatment they have received have a right to expect a prompt, open, constructive and honest response including an explanation and, if appropriate, an apology. You must not allow a patient's complaint to affect adversely the care or treatment you provide or arrange.'
If something goes wrong, patients should receive a prompt, open, sympathetic and above all truthful account of what happened. Any patient who has suffered because of an error, regardless of its nature, should receive a full explanation and a genuine apology.
We actively encourage members to apologise where appropriate. Remember, there are no legal concerns about apologising and it is not the same as admitting liability.
Disciplinary and criminal procedures
The complaints procedure is there to address patient complaints, not to discipline healthcare professionals.
Where disciplinary action is considered against a doctor who is the subject of a complaint, the two processes should be entirely separate. Disciplinary procedures are confidential, and complainants have no right to know the details or the outcome.
In very rare cases a complaint might relate to a police investigation, and investigating the complaint might prejudice the police investigation and possibly the rights of the doctor. If there is any question about the rights of the doctor under investigation, please contact us for advice.
The complaint process should be concluded before a complainant claims for negligence, even if they have already indicated that they intend to do so. It's possible that the response to the complaint will help determine whether there has been negligence.
Please contact the MDU if you're told of a claim while involved in a complaint investigation.
Principles of good complaint handling
The PHSO's 'Principles of good complaint handling' (2009) sets out six key principles that are central to good complaints handling. The Ombudsman expects to see these applied to complaints handling by all public bodies, including NHS bodies and organisations providing NHS services.
- Getting it right.
- Being customer focused.
- Being open and accountable.
- Acting fairly and proportionately.
- Putting things right.
- Seeking continuous improvement.
These principles set out the approach the Ombudsman's office will take when considering complaints, and much of its advice about complaints handling is similar to the our own.
How the MDU can help?
We have extensive experience of helping members with all stages and aspects of the complaints procedure, from drafting an initial response to supporting you if the complaint is referred to the Ombudsman.
As always, if you need our assistance, call our 24-hour medico-legal helpline and speak to one of our advisers.
This guidance was correct at publication 04/05/2017. It is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.