The NHS and social care complaints procedure is set out in law, with the local resolution stage governed by the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009.
The complaints procedure applies to NHS bodies and all NHS healthcare providers, 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, complaints dealt with by the GP practice, the hospital itself or via NHS England. 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. The usual time limit for a complaint to the PHSO is 12 months. For clinical cases, the PHSO will usually get a clinical adviser's opinion as part of the investigation.
Who are complaints 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 dissatisfied with the response, they can refer it to the PHSO if they want to have it independently reviewed.
The PHSO website provides guidance for organisations handling complaints.
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 still acknowledge the complaint within three working days.
If a complaint made to one responsible body includes concerns about another responsible body, there is a duty to cooperate. For example, if a patient complains to a hospital trust about care in a hospital as well as GP care, the hospital complaints team will usually ask the GP practice for a response.
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 (but you should still keep a record of these complaints).
- 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 aged 16 or over 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 and that you have the patient's consent to respond to the complainant.
If patients lack capacity to make decisions about who they want involved with a complaint, 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.
- Complaints should still be investigated and lessons identified while awaiting confirmation that the complainant is an appropriate person.
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 their complaint being delayed, and
- it's still possible to investigate the complaint fairly and effectively, despite the delay.
We generally advise members to consider complaints made outside the time limit if it's possible to investigate them because doctors have an ethical responsibility to respond to complaints. 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.
It's important to tell a complainant when they can expect a full response when the complaint is acknowledged. If you cannot meet your proposed timescale (for example, if there is a delay because colleagues become unavailable), keep the complainant updated.
In our 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 61 of the GMC's Good medical practice: 'You must respond promptly, fully and honestly to complaints and apologise when appropriate.'
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.
Since April 2015, healthcare organisations registered with the CQC in England are subject to a statutory duty of candour. This places statutory obligations on care organisations to act in an open and transparent way.
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 this and possibly the doctor's rights. If there's any question about a doctor's rights under investigation, please contact us for advice.
It's possible for patients to make a complaint and a clinical negligence claim at the same time. In this situation, the complaint should be dealt with in the usual way. The response to the complaint could help determine whether there has been negligence.
Clinical negligence claims against NHS GPs in England that arise from care provided on or after 1 April 2019 are dealt with by Clinical Negligence Scheme for General Practice (CNS-GP). This places obligations on GPs in England to report matters that may lead to claims as soon as possible.
Please contact us if you're told of a claim while involved in a complaint investigation or if you're unsure whether to report a complaint to CNSGP.
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 medico-legal helpline and speak to one of our advisers or email us at firstname.lastname@example.org. Please do not send us patient identifiers.
This page was correct at publication on 25/05/2022. Any guidance 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.