- Complaints handling in Wales is governed by the National Health Service (Concerns, Complaints and Redress Arrangements) (Wales) Regulations 2011.
- The regulations use the term 'concern'. They interpret the term broadly to include dissatisfaction or complaints from patients and reports of adverse incidents from staff.
- Where there is a 'qualifying liability', Welsh NHS hospitals and local health boards have to consider whether it's appropriate to offer patients financial redress of up to £25,000.
- The redress requirement doesn't apply to primary care providers or independent providers of care to NHS patients.
The regulations apply to Welsh NHS bodies, including local health boards and primary care providers in Wales. Independent providers of treatment to NHS patients are covered by these regulations but are excluded from the redress requirements.
If NHS patients are referred by a Welsh NHS body to an independent provider for NHS treatment, it's important to ask the contractor to clarify what indemnity arrangements will apply if something goes wrong.
Who can notify a concern?
- Concerns can be notified by anyone who has used NHS services or facilities.
- A relative or friend can notify a concern on behalf of a patient, but don't assume that someone complaining on behalf of a patient has authority to do so.
- Investigating a concern doesn't affect a patient's right to confidentiality.
Adult patients with capacity should usually notify a concern themselves, although they can appoint a representative to act for them. Children may need help pursuing concerns they raise themselves.
Where the patient lacks capacity, a representative can bring a complaint on their behalf.
The regulations set out what to do if you're concerned about whether the representative is appropriate, or if you're worried the representative isn't acting in the patient's interests.
If this is the case, contact us for advice on how to proceed. It may still be appropriate to investigate the concerns even if it's not thought appropriate to respond to that complainant.
The regulations also allow staff members to bring complaints about the care of patients (excluding matters related to that person's employment or contract). When these concerns involved a patient who suffered moderate or severe harm or death, the patient or representative must be notified of the concerns.
Again, if you have concerns that telling the patient might not be in their interests, contact the MDU for advice.
There are two stages to the Welsh complaints procedure:
- Stage 1: local resolution (by the hospital or practice)
- Stage 2: Public Services Ombudsman for Wales.
The MDU has extensive experience in assisting with complaints, and members can contact us at any stage of the procedure.
The period for notifying a concern is:
- 12 months from the event which is the subject of the concern, or
- 12 months from the patient becoming aware of the event they are complaining about, provided this is not later than 12 months after the event.
The regulations require that these time limits be waived if the person making the complaint had a good reason for not making it earlier and it's still possible to investigate the concerns.
However, the complaint must be made within three years of either the relevant incident or from when the complainant first became aware of their concerns.
It's usually better to help patients resolve concerns, even some time after the event. The regulations don't stop you responding to concerns after this three year time limit, just that these complaints regulations will not apply to that process.
You are still able to resolve minor issues directly with your patients - the regulations don't apply to oral complaints resolved locally within one working day.
- Concerns must first be addressed locally by the primary care provider or hospital.
- If the concerns involve more than one responsible body, the organisations must co-operate and provide a coordinated response.
We strongly support the principle of local resolution. Speed, sympathy and a willingness to listen and explain are often all that are needed to resolve concerns.
Hospitals and practices should appoint a responsible officer (often the chief executive or a GP partner) to oversee arrangements for dealing with concerns, and to make lessons are learned. There must also be a senior investigations manager who is responsible for the investigation and consideration of concerns.
Acknowledge concerns within two working days. If the concern is made orally, give the complainant a written record that sets out the details. The organisation must also offer to discuss:
- how the investigation will be conducted
- what advocacy services are available
- the likely timescale to complete the investigation and to provide a full response.
If the complainant doesn't want to discuss this, give these details in writing.
Local resolution and investigation should be appropriate to the particular concern, and may include:
- inviting the complainant to meet staff, practitioners and clinicians to discuss their concerns further
- arranging an independent opinion on clinical issues
- offering alternative dispute resolution.
Once the investigation is complete, a full response signed by the responsible officer should be sent to the complainant within 30 working days of receiving the complaint. If the investigation can't be completed by then, complainants should be told why and when they can expect to receive a reply.
All GPs are required by their contract to have a practice-based system for handling complaints, and practices must co-operate with the local health board in the investigation of concerns.
Concerns about primary care providers can be raised with the local health board, but the board must then decide if it would be more appropriate for the primary care provider to consider the complaint.
This decision and its reasons should usually be notified to both the complainant and the primary care provider within five working days.
The regulations require Welsh NHS bodies investigating a concern to consider whether an offer of redress should be made, up to limit of £25,000. This applies to NHS trusts and local health boards, but not primary care providers or independent providers treating NHS patients.
If the Welsh NHS body believes there may a 'qualifying liability'- in essence, if a patient suffered harm as a result of a breach of a duty of care from an organisation or health care professional - it must inform the complainant, provide copies of the records and any expert evidence (from an expert agreed by the complainant) and offer access to free legal advice.
Other NHS bodies, such as NHS trusts in England, Scotland and Northern Ireland, must consider redress when they are involved in a concern made under the Welsh redress regulations. Again, this excludes primary care providers and independent providers of care to NHS patients.
However, because Welsh NHS bodies have to share expert evidence with the complainant and provide them with access to free legal advice, it's possible that primary care providers and private practitioners treating NHS patients within and outside Wales could be contacted by a complainant who is pursuing a case against them.
If you're contacted in this way, please get in touch with the MDU immediately.
Public Services Ombudsman for Wales
Complainants can write to the Ombudsman and ask for a further investigation if:
- they aren't satisfied with the initial response
- feel they have suffered hardship or injustice
- they haven't yet sought an independent review of their case.
They need to provide reasons why they are unhappy with the outcome of their complaint.
Practitioners and their staff can also complain to the Ombudsman about the local health board or NHS trust if they feel they've been treated unfairly by the complaints process.
- Complaints older than 12 months won't be accepted unless there is a good reason it wasn't made earlier.
- The Ombudsman has no power to enforce recommendations or impose sanctions.
- Where the Ombudsman investigates a complaint, this will be reported in regular reports to the National Assembly of Wales.
This guidance was correct at publication 10/08/2018. 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.