Reforms to the complaints process are intended to produce a fundamental shift away from attributing blame. Tony Yeaman explains

Reforms to the complaints process are intended to produce a fundamental shift away from attributing blame. Tony Yeaman explains

Many complainants face severe problems in getting a satisfactory or timely response to their complaints from healthcare providers. Furthermore, it seems the NHS is not using valuable information gained from the complaints to improve its services or complaint handling processes.

The current statutory complaints system dates back to the last fundamental reform in April 1996, when a single complaints system was introduced to radically improve the previously fragmented and partial system. Amended significantly in 2004 and again this year, the system now requires NHS bodies to operate a complaints procedure with a view to securing a speedy resolution of complaints at local level and places particular obligations on their chief executive and boards. This system has since been subject to overhaul and reform aimed at providing greater accessibility, speed of response and reduction in harm.

The recent amendments in September sought to make the complaints process clearer and easier to access as well as to closer align it with social care complaints procedures. This was in accordance with one of the longer-term policy aspirations to produce a single comprehensive complaints system across both health and social care by 2009.

These current procedures apply to primary care trusts, strategic health authorities, NHS trusts and special health authorities.

September 2006 reforms

Two further types of complaints that cannot be investigated under the process have been added: first, a complaint the subject matter of which has already investigated once; second, decisions under the NHS pension or injury schemes.

There is a new duty to cooperate in relation to handling complaints made to NHS bodies relating either in full or in part to care provided by local authorities, including a duty to co-operate. Complaints managers need no longer be employees of the NHS body and can be appointed for more than one body. This should allow for a number of possible collaborations or cross sector health/social care handling with a view to establishing a more integrated system.

The time allowed to respond to a complaint has been extended from 20 to 25 working days with the possibility to agree an extension with the complainant. Similarly, extending time to seek review by the Healthcare Commission has been extended from two months to six.

The remit of the Healthcare Commission in relation to foundation trusts has broadened while removing its obligation to send to the trust's independent regulator copies of all complaints and restricts cases where it is required to consider the regulator's views.

Common pitfalls

It is often overlooked that complaints provide an organisation a valuable opportunity to formally address concerns and prevent further errors occurring. The management of complaints often seems to attract a low priority yet it has come in for critical review in a number of inquiry findings and by the National Audit Office and Healthcare Commission. Despite 10 years of reform:

  • Procedures are still fragmented within the NHS and between the NHS and private social care providers.
  • The current system is process rather than outcome driven and is not sufficiently centred on the patient's needs.
  • There are insufficient resources in place and a skills shortage/lack of key competences among staff expected to deliver the service, leading to delays and inadequate explanations to patients.
  • There is a lack leadership to ensure appropriate culture and governance arrangements are in place.
  • There is a lack of appropriate remedies to deliver outcomes for justified complaints.

Redress - a new opportunity

Following the chief medical officer's recommendation to amend what he saw as the complex, costly and slow clinical negligence process, a new alternative to litigation in less severe hospital care cases is proposed. It aims to provide patients with an explanation, apology and action to prevent reoccurrence as well as compensation.

The reforms are designed to create a fundamental cultural shift within the NHS, moving the emphasis away from attributing blame towards preventing harm, reducing risks and learning from mistakes.

The bill provides for a more consistent and open response to patients when things go wrong with their NHS hospital care, placing the emphasis on putting things right for them. It will promote learning and improvement in the NHS, and provide the impetus for wider service improvement.

Likely implications for NHS bodies

The bill makes clear that complaints should provide one of the trigger points for consideration of redress, and while more time has been given to investigate, this new obligation will place added pressures on those responsible for handling complaints.

There is likely to be a requirement to actively identify cases that may be eligible under the scheme as a result of considering complaints, adverse incident reports or cases identified through the organisation's corporate governance procedures.

The Healthcare Commission will be required to consider whether complaints it is considering are covered by the scheme and if so to refer the case to the relevant scheme member.

Staff will have to be appropriately trained to undertake the investigation of cases.

An appropriate member of staff (for example, a director) will need to be appointed with responsibility for overseeing the scheme, identifying patterns and advising the organisation about lessons that can be learnt from cases, and links that can be made within their organisations, between clinical governance arrangements, complaints management, and the NHS redress scheme.

The scheme is likely to require co-operation between the scheme authority and both the Healthcare Commission and the National Patient Safety Agency in order to ensure co-ordination and learning from mistakes.

This allied to the revised complaints procedure should allow the possibility of a more consistent and open response to patients when things go wrong (estimated at one in 10 episodes) with the emphasis of putting things right and learning from those mistakes to prevent reoccurrence.

The future

Those involved in complaints will now need not only to take on the recent amendments using additional time to improve rates of local resolution but also be prepared to implement NHS redress.

While the scheme will be managed by the NHS Litigation Authority based on its success in handling claims for the NHS, active engagement will be needed for the proposed scheme authority that will issue guidance and provide opportunities for training to those involved to benefit from the changes.

While complaints and claims managers have worked closely for some time it will be essential to ensure that appropriate senior level engagement training, skills and resources are in place if the NHS is to embrace this opportunity to provide genuine responsive local and non-defensive approach to address problems early based on better engagement of staff and patients, and to use the qualitative information to improve services and reduce harm, resolving more matters locally without the need for the patient to involve the Healthcare Commission or litigate.

Tony Yeaman is a partner and head of healthcare at Weightmans solicitors.