The rise of complaints to the NHS shows that the system of dealing with grievances often falls at the first, easiest, hurdles, as Jeremy Hall explains.
The first NHS complaints system was introduced in 1996. The subsequent 16 years have shown that the common themes patients complain about in their experience of clinicians, nursing staff and hospitals are poor explanations, a reluctance to admit mistakes when things go wrong, surgical errors, misdiagnosis and delay in diagnosis, medication errors and access to service and funding issues.
There were more than 100,000 complaints received by the NHS in 2009/10, a 13.4 per cent increase on the previous year. A total of 148,171 written complaints were received by the NHS in 2010/11.
Poor explanations or an incomplete response are the most common reasons recorded for patient dissatisfaction with NHS complaint handling. The potential outcome of this dissatisfaction is increased resentment towards NHS staff and potential unnecessary and otherwise avoidable costly litigation, in addition to adverse publicity for the healthcare provider.
The Complaints Process
In view of the extensive range of potential areas of complaint from an aggrieved patient, ranging from dissatisfaction with staff to poor clinical outcomes, it is important to focus at the outset on the nature and level of input required to deal with the complaint.
In many cases the patient seeks only a full explanation and wishes reassurance that a poor clinical outcome will not recur. One recent complainant said to her ICAS advocate, “I did not feel reassured that the trust had valued my complaint as a learning opportunity. Instead it was defensive and unwilling to take responsibility for the issues I raised”.
In view of the wide range of potential areas of complaint, the healthcare provider must ensure that management and resources are used effectively in the investigation and response process.
In respect of complaints involving poor treatment or clinical outcome, effective use should be made, where possible, of input from consultant clinicians directly involved in responding to clinical issues raised by a complainant. More complex issues may need divisional consultant input or even involvement by the medical director or trust board to provide an effective and cogent response.
The complaints team and the clinicians need to understand that their respective contributions are vital in dealing effectively with genuine clinical issues raised by concerned patients.
Impact on resources
It is accepted that dealing with complaints of wide-ranging scope has a significant impact on available resources. In the absence of stipulations as to the format and substance of a written complaint, the number and nature of issues to be investigated is extensive.
Some complaints may involve complex or detailed clinical issues which can only be properly addressed with involvement from a time-pressed consultant.
Others may be much more general or non-clinical in nature. In each case time needs to be expended and manpower resources called upon.
One way of managing wide-ranging complaints more effectively is to consider guidance issued by the NHS Information Centre for Health & Social Care. Initially an assessment should be made of the seriousness of the complaint. Complaints should be categorised as low, medium or high.
Secondly, the importance of the matter and the likelihood of recurrence should be assessed across a range from “rare” to “almost certain”. The complaint is then graded according to these categories. A complaint of low seriousness categorised as “rare” in relation to the likelihood of recurrence would be constituted as a “low” category risk, and management of clinical and administrative time allocated accordingly.
One benefit of carefully addressing the implications of individual complaints is that wider issues of clinical management may underlie the difficulty arising in any individual instance.
The complaints team should consider not only the primary cause of the problem raised by the complainant in order to respond to the complaint as soon as possible, but also any secondary causes needing to be addressed to prevent reoccurrence of similar complaints.
One example may be cited involving the misreporting of radiology. The primary cause in the individual instance of the complaint was misdiagnosis by a single radiologist. Further and wider enquiry subsequently revealed a fundamental secondary cause, which was that the hospital did not have regular, effective MDT meetings or any clear audit of the individual radiologist’s work. In effect the radiologist was working in isolation.
The identification of trends in complaints may have a positive impact on resources by identifying areas of risk within the organisation liable to be reflected in future complaints. Early recognition not only prevents such patterns occurring but potentially prevents complaints correspondence escalating over time.
Has the system become a monster?
The response letter to a complainant is potentially a double-edged sword. A targeted investigation, with assistance from those best able to provide it, and the adoption of an open approach and full explanation may provide complainants with the redress which they seek and offer the reassurance which they need. This potentially deflects the complainant from pursuing litigation.
However, the complaints process offers the potential litigant’s solicitors the opportunity of using their client to pursue targeted enquiries and potentially obtaining full or partial admissions, provided in good faith, but without appropriate legal advice and support. The complainant’s legitimate enquiry as to a clinical or surgical outcome pursued by way of the complaints process may not necessarily be treated in quite the same context as receipt of a solicitor’s formal letter.
On the other hand, if an unsatisfactory response is given, this may encourage a complainant to seek further redress either in the form of a complaint to the ombudsman (of which a total of 15,186 were received in 2010/11) or legal action. This places additional burdens on already stretched NHS resources.
‘A process which may on the one hand be seen as an effective means of resolving patients’ perceived grievances at an early stage and preventing litigation may in fact, on occasion, have the opposite effect’
The NHS constitution reassures that, “the NHS commits, when mistakes happen, to acknowledge them, apologise, explain what went wrong and put things right quickly and effectively”.
This constitution aims at limiting the exposure of the NHS to costly litigation, where possible. However, the outcome of the complaints process may merely encourage the claimant and his solicitors to pursue matters further, particularly if responses are given out of legal context. While addressing complaints effectively may assist markedly in reducing costly litigation, in some cases this may, conversely, increase the number of claims.
A process which may on the one hand be seen as an effective means of resolving patients’ perceived grievances at an early stage and preventing litigation may in fact, on occasion, have the opposite effect.
However, one further important point emerges. A healthcare provider ignores the opportunity to learn lessons from complaints at its peril. Funding provided to hospitals now reflects in part the quality of care which patients receive and their feedback on the service which they have received. For senior doctors, the Clinical Excellence Award Scheme is now more conditional on clinical activity and quality indicators.
Most importantly of all, the NHS cannot keep pace with the spiralling cost of litigation. The levels of compensation and the costs involved mean effort to reduce litigation must be prioritised. It could reasonably be said that addressing complaints effectively is key to this.
Jeremy Hall is an associate at Berrymans Lace Mawer LLP