NHS complaints’ procedure slammed - again

As lawyers, we deal with complaints against the NHS on a daily basis when handling clients’ medical negligence claims, and so we’ve tended to become inured to the byzantine nature of its complaints’ procedure. Healthwatch England, the consumer champion for health and care, has recently brought attention to the "hopelessly complicated” complaints system and has called for wholesale reform. This is not a new campaign: at least six other reviews into the NHS complaints’ procedure have been carried out since 1994, all of which have made recommendations for improvement – and most of which seem to have disappeared into a black hole.

Healthwatch England has criticised the confusing and complex nature of the current system noting that an average individual would struggle to navigate their way round it. Recent reports by both the Health Select Committee and Robert Francis QC noted that the complaints system was not fit for purpose. There is clearly no shortage of good advice: the Patients’ Association has recommended standards for good complaint handling and the recent ‘Review of the NHS Hospitals Complaint System’ by Ann Clywd MP and Professor Patricia Hart has set out straightforward, common sense suggestions for improving matters.

Formal complaint or negligence claim?

In 2012/13 the NHS received over 162,000 written complaints (source: Health and Social Care Information Centre), 31.9% of which related to inpatient hospital acute services. Communication with patients accounted for the second highest proportion of complaints received – which comes as no particular surprise given the inept way in which many of them are dealt with.

We come across this regularly: what upsets our clients most is the cavalier fashion in which their initial complaint is often handled. An explanation of what went wrong accompanied by an apology is, in many cases, all that is required to resolve the situation. It is the poor communication around these complaints which often leads to accusations of, and claims for, medical negligence and the discovery by Healthwatch England that over 70 bodies are involved in dealing with complaints goes some way to explaining why.

NHS complaints procedure

One could be forgiven for thinking that the complaints system is deliberately set up to confuse and obstruct. NHS England while stating that it is ‘designed to be as patient focused as possible’ refers to the ‘numerous different organisations’ that comprise the behemoth that is the NHS and acknowledges that it is possible to send a complaint to the wrong section, giving the impression of being passed from pillar to post. It is certainly true that many of the recent criticisms into the failings of the NHS have included the complaints system within their scope.

Is there change on the horizon?

Julie Mellor, Parliamentary and Health Service Ombudsman said: "We agree with Healthwatch that the current complaints system is too complex and we are working with the Department of Health, NHS England and regulators to help people better understand where they need to go when they want to raise a concern." There is also an understanding that the defensive response to complaints is fundamentally detrimental to resolving any issues early on and that this is a cultural issue which needs to change. Clearly, it remains a matter of wait and see.

There is no doubt that it is in the interest of the NHS to make the complaints procedure as straightforward as possible and have appropriate mechanisms in place to respond sensibly to people’s concerns. If complaints could be investigated and dealt with sensitively and promptly, the organisation will almost certainly see a decline in the number of medical negligence claims being lodged. Indeed, Michael Powers QC once said that if complaints were dealt with promptly and appropriately it would reduce the number of medical negligence claims by 70%. Even if the majority of these claims do not proceed, investigating them absorbs time and resources which could be more valuably deployed elsewhere.

Written by Jeanette Whyman, medical negligence solicitor with Wright Hassall.