Change needed to NHS Complaints process

2nd September 2020 Clinical Negligence

The NHS complaints process is a painful experience for many of the patients who have had cause to use it due to poor care they have received, and unfortunately, too often leads to further frustration and feelings of being let down.

The health service is aware of issues with its complaints service and the long overdue reform that is required and the Parliamentary and Health Service Ombudsman (PHSO) is seeking to reform the process.

The PHSO is asking for feedback on both complaints handling and the new Complaints Standards Framework it has been creating working with the other public service organisations, public and advocacy groups.

The framework is a single set of standards with which all NHS complaints should comply.

The PHSO says it is based on 4 principles:

·         To promote a learning and improvement culture

·         To positively seek feedback

·         To be thorough and fair

·         To give fair and accurate decisions.

The PHSO’s consultation on the framework is open until 18 September 2020.

Is change in how NHS complaints are handled needed?

In my experience, having worked for over 20 years with injured patients and bereaved families, the answer is a resounding ‘yes’. Luckily, many of us have not had cause to complain about medical care, but those that have are, in my experience, often left bruised, upset and angry.

I rarely meet a patient or a family who say that their complaint has been effectively handled. That may be to some extent because I meet a self-selecting group of people – it might be thought those who feel that their complaint has been dealt with well are less likely to consult lawyers - but the numbers are too high to think that the families I meet are just unlucky.

I have helped hundreds of people with NHS complaints or met them in the aftermath and I am sorry to say that their experiences are often the same – the process has been difficult, they have not been included or kept informed and they have not got the answers or reassurances that things have changed that they were seeking. They have been left feeling ‘fobbed off’ and, sadly, in most cases the process has added insult to injury leaving them more distressed and angry than when they started.

In 2010, I gave evidence at the Health Select Committee investigation into litigation and complaints. I, and many others, raised the same issues then as I mention above and that are being raised as concerns now,

In 2013 Robert Francis published his report on the public inquiry into the problems at Mid Staffordshire hospital, which included recommendations including the need to reform the complaints process. He said ‘A health service that does not listen to complaints is unlikely to reflect its’ patients needs’.

We are now many years on but I have seen little improvement over that time. The clients I see are still, most often, telling me the same stories. Imagine how many thousands of people that means have been through a process which is at best ineffective and frustrating, at worst, damaging

Damaging not only for those individuals and families, but also for the patients who have suffered harm because of the missed opportunities to improve healthcare services and learn from mistakes.

What needs to change from the patient’s perspective?

The PHSO explains that its’ new framework is based on what the public said they would like to see happen when something goes wrong, which includes an apology, explanation, understanding, fairness, clarity and timely response.

It goes on to say they have considered the public’s expectations and refer to the report ‘My expectations for raising concerns and complaints’. It is notable that that was published in 2014, over six years ago already. It is a helpful guide to the issues that patients and their families identified as important for them and so what any framework needs to take into account – including knowing what to do when you are considering a complaint, the practicalities of making a complaint, staying informed and receiving the outcomes.

It touches on the issue that patients have raised with me about the NHS complaints process which I hear over and over again. There are many issues that families raise so I mention just a few of the main ones below.

An important issue for families who still have a loved one in hospital is how to raise concerns whilst their loved one remains on the ward. Concerns raised and dealt with at this time have the potential for making a real difference to the patient’s treatment, feelings and outcome. However, it is hard to raise concerns whilst a patient is still in hospital. Often, there is no one around to discuss worries with or when they do find someone to raise their concerns with many families report feeling as though they are an irritant or ‘trouble-makers’ to be actively avoided I represented a family on whom security were called to remove them from their loved one’s bedside when they raised concerns about their mother’s post-operative condition. They were right to – she had suffered a bleed and, sadly, died some hours later, but when they tried to get help instead of staff listening and acting on their concerns they were treated as a security problem.

Moreover, families are often scared to express their concerns because of what will happen to their loved one when visiting time is over. They worry that their relative will be treated badly or care will be compromised should they raise concerns. Those not in this position may dismiss it, but I have heard the same worries expressed by many families and so this is clearly a problem that needs to be dealt with.

Similarly, when families complain about care after a hospital stay, they feel that their concerns are not taken seriously and their complaints are matters to be ‘brushed under the carpet’. They feel it is very much ‘them and us’ and the hospital staff are more interested in protecting themselves and hiding the truth than working together to achieve a joint purpose – to understand what happened, to learn from those mistakes and to improve patient safety.

Patients and families often feel they are ‘outsiders’ looking in on complaints, rather than integral to them. Sometimes, they are not even told of investigations or asked for their views. I acted for the mother of a 9 year old boy who died. She made a complaint but received no response and only found out when we were instructed that an internal investigation had been carried out. She had had no involvement and did not know the outcome.

At best it seems families are treated as witnesses who can give some facts and who the decision can be passed on to, rather than fully active participants. This means key information is missed in the learning experience but also that families are left without the answers they want. It seems to me that families need support and help and the will to facilitate their full involvement

Every family I meet wants to see lessons learned and be reassured that there will be improvements. They would like the investigation and response to their complaint to directly address their concerns but also look at all relevant issues, as often they do not know everything that has happened. That information is with the hospital Trust.  It is often what is not in the responses/reports I see that is most important and that should not be so. If the process was really about learning and improvement all relevant matters would be covered.

Will this framework change things?

I really hope this framework will improve the complaints process for the patients and families who find themselves needing to complain.

It is a good start. A framework to which all of the NHS is expected to adhere should bring some level of consistency and if NHS teams read the evidence behind the framework, I hope it will bring some level of understanding from the patient’s perspective.

However, sadly, I fear that a framework alone is unlikely to be sufficient to change things.

From what families have told me I consider that the following changes would be helpful;

1.  A change in approach and culture so that when concerns are raised there is genuine desire to get to the bottom of what went wrong and learn from mistakes. Even now, when we seek reassurances that changes have been made on behalf of our clients NHS Trusts refuse to give them and fail to reassure families that someone else will not go through what they have just suffered. That is often after the trust has made an admission of negligence or agreed to pay compensation. Why would that be in a health service really engaged in learning from mistakes?

2.  A change from the ‘them and us ‘attitude instead to one of families and staff involved in complaints working together to achieve what, surely, all of them want. I believe it would be helpful for families to be seen as equal partners in the process, who can give vital evidence and a different but equally relevant perspective which can be learned from.

3. Both staff and families would benefit from understanding what the experience was like for each other, which would encourage an understanding of how difficult, painful and emotional making a complaint is for patients and families.  

4. Complaints need to be dealt with honestly and transparently. Those families who have felt complaints were helpful were those where the staff involved or senior management honestly explained their position, the reasons they did what they did and, if appropriate, gave an explanation of changes made and how they would do things differently next time,

5. Finally, I think that the way complaints are dealt with needs to be reviewed and properly regulated by an independent body, which has wide-ranging powers that can impose and implement change.

With these changes, I hope that the NHS complaints process should start to work more effectively for all patients, those who have cause to complain, but also those whose care will be improved after a complaint is effectively dealt with.

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Nicola Wainwright is a Partner and Head of London Clinical Negligence located in Londonin our Clinical Negligence department

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