A more flexible, service user-centred complaint handling system introduced nearly two years ago is still have potentially damaging implications for trusts failing to handle the processes correctly. Andrew Craggs, partner at Hill Dickinson, examines the importance of handling complaints correctly under the new rules.

On 1 April 2009, a new NHS complaints system was introduced. The intention was to create a simpler, more flexible complaints process and to unify and reform the system for both the NHS and social care in England. 

Additionally, the new system was to be more locally led and complainant centred by creating a less prescriptive and more flexible process. It sought to ultimately create an environment of openness and communication between the service user and service provider.

The new complaints system has now been up and running for just over 22 months. The issue this article intends to examine is the importance for trusts in getting their processes right when dealing with complaints and the potential implications if they do not. An extreme example of this is trusts being criticised on websites and the very negative publicity that can come from this, which ultimately can damage a trust’s reputation. 

In October 2010, Ann Abraham, the Health Service Ombudsman for England, prepared a paper called Listening and Learning: The Ombudsman’s Review of Complaints Handling by the NHS in England 2009-10. The report covered the Ombudsman’s perspective of the first full year of the new complaints handling system for the NHS and its scope. 

Ms Abraham’s review concluded that: “… the NHS needs to listen harder and to learn more from complaints. When it fails to do so it is missing a rich source of insight and information that is freely and readily available, and comes directly from service users.”

One of the changes implemented by the new complaints procedure was to increase the flexibility available to the NHS body in investigating complaints. The new complaints procedure seeks to ensure that the process is much more complainant led so that the NHS body is clear on what it is that the complainant desires as an outcome, a face to face meeting, an apology etc, and that they are aware of the steps being taken to investigate the complaint. 

Further, it seeks to ensure that lessons are learnt from complaints made with a view to seeking continuous improvement within the current NHS system and to avoid similar problems in the future.

This was assisted by the removal of the old prescriptive timescales where a complainant had to register a complaint within six months and a response had to be provided within 25 days. 

Under the new system complainants have 12 months from the occurrence giving rise to the complaint or from the time that they become aware of the matter, to register their complaint.  The complaint manager retains discretion to investigate complaints later than this if there are good reasons for the delay and it is still possible to carry out the investigation.

In terms of the investigation itself and the response, the responsible body to which a complaint is made must specifically investigate the complaint in a manner appropriate to resolve it speedily and efficiently, and during the investigation keep the complainant informed, with as much detail as possible. There is no specific timescale in which a complaint needs to be investigated and this is meant to be proportionate to the complaint that is made.

There should therefore be no reason why complainants should not at every stage be aware of the progress of the complaint investigation. This should be done by arranging face-to-face meetings so that the complainant is well aware of the steps that the NHS body is taking to resolve their complaint. Quite often complaints are escalated to either the Ombudsman and/or the press, where there are delays in responding to or a failure to listen to the needs of the individual. 

A very important part of investigating a complaint is to ensure that lessons are learnt and that responsibility and accountability is taken where appropriate. Many complainants simply want an apology or an explanation. If the process can be dealt with to their satisfaction at a local level then it may never escalate, allowing those affected to move forward. This can help to alleviate distress and to reassure complainants that mistakes will not recur.

It is undisputed that where a complainant feels that their complaint has not been resolved to their satisfaction, this can lead to a complainant bringing a clinical negligence claim. This can also lead to them contacting the local or national press and in some extreme cases, creating websites that include defamatory comments. 

Good communication

Good communication is vital. It is very easy for a simple complaint to degenerate into an acrimonious standoff and a short step from there, to damaging website postings, internet campaigns or even demonstrations on site. By that point, the chances of reaching a satisfactory conclusion to the complaints process (from either perspective) are slim.

If things do reach that stage, the first question is whether or not the posting / website / posters are defamatory. Would they make a reasonable person think less of the person, of you or of the Trust? If so, are the comments inaccurate? If so, there may well be a sound basis upon which to have them removed.

Whilst action can (and should) be taken then – defamatory website postings can be taken down and campaigns silenced. It is, of course, far easier to avoid them in the first place by maintaining good lines of communication.