Ministers are unimpressed with the current NHS complaints procedure. The NHS Plan claims that the system is discredited and that it is not seen as independent or transparent.
The current NHS complaints procedure has been in place since 1 April 1996, and followed a lengthy review chaired by Professor Alan Wilson. The result was a two-stage process common to primary and secondary care.
Stage 1, the informal procedure, is intended to provide a response within a fortnight. Exactly how this is achieved is up to the NHS unit concerned; it may involve a meeting or exchange of correspondence, and in some cases may develop into a conciliation process.
Those dissatisfied with the outcome may apply for, but will not necessarily get, an 'independent review'.
All requests for the second stage rocedure are vetted by the 'convenor', a non-executive director of the trust or health authority.
Only those cases where no more can be achieved by local resolution, and holding an independent review will add to the process, are supposed to be considered further.
If the convenor decides that an independent review is appropriate, a panel is nominated to consider the complaint, and the terms of reference of the review are notified to all concerned.
Independent review panels (IRPs) have no disciplinary function – the aim of the review is to look at the complaint with a view to resolving it constructively.
The panel comprises three lay people including a lay chairperson and the convenor. Many complaints involve clinical issues. In such cases, two independent clinical assessors, GPs from another area, will be appointed.
Exactly how the IRP goes about its business is very much up to the chairperson, who has considerable discretion in deciding how best to investigate a case and decides who to call as witnesses.
The procedure is not bound by regulations and the panel is not obliged to conduct a formal hearing with both parties present simultaneously.
In order to avoid an adversarial process, many chairmen elect to see the parties and witnesses sequentially to avoidany chance of confrontation.
Doctors attending IRPs are entitled to be accompanied by a colleague or representative of their protection organisation. However, legal representation is not allowed and many chairmen will object to someone attempting to speak on the doctor's behalf.
Following the review, a report is produced, copies of which are sent to the complainant, the doctors concerned and the health authority. The report contains a review of the facts and sometimes recommendations for remedial action.
If the panel upholds a complaint, either in whole or in part, it will not make recommendations about disciplinary action in its report. It is for the health authority to decide whether further action is necessary, but the panel may comment on the need to make changes to practice procedures or services and these issues are likely to be followed up by the health authority.
Acting as longstop to the entire process is the Health Service Commissioner or Ombudsman. Complainants who are dissatisfied that their complaints have not been accepted for IRP or with the final outcome may appeal to the Ombudsman, who will undertake further investigation if merited.
Review of the NHS complaints procedure
In September 1999, the Public Law Project (PLP) published its evaluation of the effectiveness of the NHS complaints procedure, entitled Cause for Complaint?1 It concluded that the procedure is 'not operating optimally' and set out good practice guidelines.
The DoH is also conducting its own review of the complaints procedure and how it operates.
It is unlikely that that review will be published before the election, but on the assumption that a Labour government is returned, we can expect to see consultations on revision of the current procedure later this year. Judging by the comments already made about the NHS procedure, we can expect change.
The PLP's analysis of local resolution procedures concluded that the new procedures have encouraged a number of providers to be more open in their handling of complaints and less defensive about admitting failings in care.
It went on to say that the emphasis on flexibility had also encouraged health organisations to respond to complaints in ways that were most likely to satisfy the complainant.
However, the PLP also identified lack of training and experience among staff as a prime cause for failure to achieve a satisfactory outcome, and argued for better resourcing and adequate training of staff to improve success rates – a call that everyone concerned should endorse.
Findings on local resolution
Disappointingly for GPs, the PLP concluded from their research that local resolution was:
'…particularly discredited for complaints involving primary care practitioners and those which give rise to serious concerns about the performance, conduct or competence of individual health professionals…
'Their level of dissatisfaction with the process indicated a strong need for alternative procedures which allowed for early referral of such complaints to an independent investigating authority.'
The PLP further stated:
'Whilst the principle of local resolution may be sound, it is an "ideal" that in practice is hard to achieve because of the conflicting interests of those engaged in the process. Moreover, complainants will always question the fairness and impartiality of local resolution because health organisations are acting judge in their own cause.
'For faith in local resolution to be restored… much tighter safeguards need to be introduced, and both the design and practice of service-level complaints resolution, which also take into account the need for greater independence and formality as the seriousness of allegations increases, or the ability to conduct an impartial investigation declines.'
The DoH's own review may reach similar conclusions, but it is imperative that the baby is not thrown out with the bath water.
Last year, in excess of 30 000 complaints were received by GP practices. That sounds an enormous number, but each GP will conduct 8000 or more consultations in a year. Consequently, to receive just one complaint out of all these patient contacts is a ringing endorsement of British general practice.
The fact that only a few hundred of these went on to the second stage of the process may not in itself be proof positif that the local resolution procedures are, on the whole, successful, but it is important not to draw the opposite conclusion by false extrapolation from a minority of dissatisfied complainants.
Recommendations of the PLP
Perhaps the most fundamental recommendation of the PLP was that, as a matter of priority, the DoH should reform local resolution in primary care to enable users to complain directly to an officer who is independent of the practice concerned and who has responsibility for overseeing investigation of the complaint.
The PLP also recommended the development of a framework for fast tracking complaints that raise serious questions about performance, conduct or competence which threatens patient safety, and the establishment of criteria by which such complaints would be defined, in consultation with appropriate professional and consumer organisations. These recommendations are likely to be given further consideration and fit with the establishment of the National Clinical Assessment Authority.
The independent review process drew considerable comment in the PLP report. It was found not to be operating optimally. The report said:
'Some of the problems lie in the design of the procedure itself and its failure to provide sufficient procedural protection for the handling of complaints at this stage, while others are due to shortcomings in how the procedure is administered in practice.'
Suggestions for reform
The report set out a number of proposals for reform, including recommendations about selection and training of panel members and clinical assessors.
One of the main criticisms of the IRP, which is absent or at least not emphasised within the PLP report, is the perceived lack of independence of the IRP.
The panel is normally held on health authority premises, with the panel, to all intents and purposes, either appointed by or representing the health authority. Both doctors and patients express concern about the impartiality of such a panel and, from their different perspectives, both wish to see a change.
Reform of the current procedure is inevitable, but it is to be hoped that the good parts of the current procedure, particularly the emphasis on local resolution, will survive. What GPs do not need now is more bureaucracy in the complaints procedure or anything else.
- Wallace H, Mulcahy L. Cause for Complaint? An evaluation of the effectiveness of the NHS complaints procedure. Public Law Project, 1999.