The NHS complaints procedure in Scotland

  • The Scottish complaints procedure is covered by the Patient Rights (Scotland) Act 2011.
  • The Act aims to improve patients' experience of the NHS and help them become more involved in healthcare.
  • Central to the Act is the right to give feedback and raise concerns or complaints.
  • Healthcare providers should monitor and learn from the feedback and complaints that they receive.

GPs need to consider the complaints procedure in conjunction with the National Health Service (General Medical Services Contracts) (Scotland) Regulations 2018/66 (Scottish SI).

Guidance on the Regulations is available in Can I Help You? Guidance for handling and learning from feedback, comments, concerns or complaints about NHS health care services. (2012)

Principles

One of the principles of the complaints procedure is to make sure there are clear lines of accountability for complaints management, and that the procedure is integrated into the organisation's clinical governance and quality improvement arrangements.

The Act directs that each healthcare provider must have an appointed feedback and complaints officer, who ensures compliance with the complaints process. Providers must have a clear and well-publicised complaints policy and front-line staff should be trained to deal with feedback.

You should also tell complainants of any action taken as a result of a complaint to prevent any error or adverse event happening again; sometimes this can help to resolve the complaint.

The NHS complaints procedure has two stages.

  • Stage 1: Local resolution
  • Stage 2: patients who are dissatisfied after local resolution and do not wish to take matters further with the provider have the right to complain direct to the Scottish Public Services Ombudsman.

Who can complain?

A complaint can be made by:

  • a patient or former patient
  • anyone acting on behalf of a competent adult patient, with the patient's consent
  • anyone who is affected, or is likely to be affected, by an act or omission of the NHS.

A complaint can be made on behalf of a child by either parent or, in their absence, by a guardian or person caring for the child. If a child is in care, the local authority may complain.

If the patient is an adult who is incapable of making a complaint, a relative or 'other adult person who has an interest in their welfare' can complain on their behalf. In this situation the provider should also consider the provisions of the Adults with Incapacity (Scotland) Act 2000 and the views of a welfare attorney (if appointed).

For deceased patients, a complaint may be made by a relative or other adult who had an interest in the patient's welfare.

Complaints can be made orally or in writing and complaints can be made to any member of staff. Oral complaints should be recorded by writing by the member of staff to whom they are made.

Confidentiality

Bear in mind the importance of patient confidentiality, especially if the patient is not making the complaint, is a child or lacks capacity. Remember the duty of confidentiality continues after death. If you're in any doubt, please contact the MDU for individual advice.

If the patient does not wish to complain directly to the health service provider, the complaint can be made directly to the appropriate NHS body, such as the health board. The board and the provider should agree how the matter will be dealt with and then tell the complainant.

Time limits

The period for making a complaint against an NHS body or GP practice is:

  • six months from the event which is the subject of the complaint, or
  • six months from the patient becoming aware of the reason for the complaint, provided this is not later than 12 months after the event.

The directions and GMS contract regulations make it clear that these guidelines must be operated flexibly. Complaints should still be accepted where it would be unreasonable for the patient to have complained earlier and it's still possible to investigate the facts.

There may be many reasons why patients can't bring their complaint within these timescales, and responding to the complaint, even some time after the event, may help to resolve a patient's concerns. A complainant who believes a doctor's refusal to respond to a complaint is unreasonable may complain to the ombudsman or the GMC.

Responding to a complaint

If a complaint is reasonably straightforward and can be resolved to the satisfaction of the complainant within five working days, you don't need to send a written response or carry out an investigation.

This period can be extended to 10 working days if the complaints officer thinks this will help resolve the complaint. Complaints in this category must be recorded as usual to support organisational learning.

Complaints that can't be resolved this way must be acknowledged in writing within three working days. The acknowledgement must contain:

  • contact details for the feedback and complaints officer
  • details of advice and support available, including the Patient Advice and Support Service
  • contact details and information on the role of the Scottish Public Services Ombudsman
  • a statement confirming that the complaint will be investigated within 20 working days, or an explanation of why there will be a delay.

A full, timely response is more likely to resolve a complaint at an early stage. If you can't respond within the 20 day limit, tell the complainant, give reasons for the delay and tell them when they can expect a response.

Complaints not covered by the Patient Rights (Scotland) Act 2011

In Scotland, some types of complaints aren't investigated under the arrangements outlined above. With these, the responsible body must write to the complainant to tell them this, as well as how they can raise their complaint.

These types of complaints include:

  • a complaint that is being or has been investigated by the Scottish Public Services Ombudsman
  • a complaint arising from an alleged failure to comply with a request for information under the Freedom of Information (Scotland) Act 2002
  • a complaint about which the complainant has begun legal proceedings (for instance a claim in negligence) (whether or not those proceedings have concluded)
  • a complaint which, in the opinion of the feedback and complaints officer, should not be investigated under the arrangements because legal proceedings are likely to begin in respect of the complaint
  • a complaint about which a responsible body is taking or proposing to take disciplinary proceedings against the person who is the subject of the complaint.

A full list of these categories of complaints can be found in the Patient Rights (Complaints Procedure and Consequential Provisions) (Scotland) Regulations 2012.

Multiple bodies

Where the complaint relates to more than one NHS body, the organisations are expected to cooperate fully and coordinate who takes the lead in the investigation. The complainant must be told of the arrangements, and where possible be given a joint response afterwards.

Similarly, if a complaint involves two public sector bodies (eg, the NHS and social care), the local authority and the NHS provider should agree who will take the lead, work together on investigating the complaint and provide a joint response to the complainant.

This is the case even though the NHS and social care have separate complaints handling processes. It's important the complainant is made aware of this, particularly if it might delay the response.

Investigating a complaint

The feedback and complaints officer, or the person authorised to act on their behalf, must check that a fair and impartial investigation is carried out. This might involve face-to-face meetings, obtaining written statements from those involved and using other dispute resolution services.

Complainants and clinicians who are the subject of a complaint should be kept informed of the progress of the investigation throughout, with the clinicians being given the opportunity to talk with the person investigating the complaint.

For advice on responding to a complaint, see our quick guide.

Alternative dispute resolution

Not all complaints can be easily resolved through written communication. Mediation or conciliation can be helpful in resolving complaints and preventing them going any further.

Conciliation must be agreed by both parties, and the conciliator can adopt whatever procedures they consider appropriate. If a primary care service provider asks for the help of an alternative resolution service, the health board has to provide this.

Recording complaints

Healthcare providers have a duty to give the health board information about complaints every quarter. The report should detail the number of complaints received, whether the response was provided within the 20-day timescale, the key themes and any action taken to improve services.

The ombudsman

The Scottish Public Services Ombudsman Act 2002 set up a single office to deal with complaints about a number of bodies including the Scottish Executive and the health service.

The ombudsman's office usually only considers complaints that have already been addressed fully by the complaints procedures of the body concerned, although it does have the power to waive this requirement.

Complaints made more than 12 months after the complainant first knew of the matter about which they are complaining must not be considered unless the ombudsman is satisfied that there are special circumstances (s10 of the 2002 Act).

Possible outcomes from an ombudsman investigation

  • An apology or explanation.
  • Practical action to mitigate any injustice.
  • Reimbursement of any actual losses/costs necessarily incurred.
  • A modest payment in recognition of time and trouble.
  • Exceptionally, asking the authority complained about to propose appropriate action.
  • Recommending changes to procedure or policy.
  • Recommending staff guidance or training.

Our view is that compensation should only be paid if negligence has been proven, and that it has no part in the complaints procedure. Please seek MDU advice if the question of any payment to the complainant arises.

How can we help?

The MDU has extensive experience in assisting members with complaints and we are happy to advise, assist and support at any stage of the complaints procedure. For individual advice, call the MDU's 24-hour medico-legal helpline.

This guidance was correct at publication 10/09/2019. 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.

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