MPS response to the Parliamentary and Health Services Ombudsman's consultation on Good Complaints Handling

Introduction

We welcome the principles of good complaints handling set out in this document. We fully recognise the importance of a strong complaints process, focused on thorough local investigation, open explanation and effective resolution. We are certain that these principles can be used positively to encourage the development of such a process.

Whilst we recognise that there may be scope for financial sanctions and reimbursement to be awarded in specific circumstances, we remain firmly opposed to bringing compensation more generally into the complaints procedure. This response sets out our position in detail, taking into account our extensive experience of assisting our members who are subject to the complaints process and those who are responsible for managing the complaints process. We will firstly address the award of financial redress for complaints and then focus on specific issues within the Principles of Good Complaints Handling document.

Background

MPS has long advocated the importance for all healthcare organisations to have an effective complaints system in place. Our experience has shown that complaints dealt with comprehensively at a local level are more likely to be resolved quickly and effectively, and with lasting benefit to the relationship between the patient and the doctor. We promote a culture of openness and encourage doctors who have made a mistake to provide a genuine apology, and full explanation, to put things right where possible, and to consider what might be done to prevent similar incidents occurring in the future.

Our commitment to openness is demonstrated by our recent acquisition of the Cognitive Institute to provide training to our members in a wide range of areas, including the management of adverse events. The Cognitive Institute was set up in 1998 and is the largest provider of communication skills and risk management training to healthcare professionals in the Commonwealth.

Statistics for 2006-7 from the Healthcare Commission show that over a quarter of the complaints referred to them still have to be referred back to the trust because the original investigation and response was inadequate. We are only too aware of the wide variation in the standard of complaints management. Poor complaints management can compound the damage to the relationship between the patient and the doctor, and also to relationships within the organisation.

Compensation for complaints

The complaints system and the compensation system serve different and distinct purposes. The complaints system provides individuals who have concerns about their medical treatment with a means of receiving a full, clear and honest explanation of why events occurred in the way that they did, an apology where appropriate and, where something has gone wrong, the assurance that the organisation has learnt from the incident and details of the steps being taken to prevent this happening again.

Clinical negligence schemes have a different function. Their purpose is to provide financial compensation for individuals who have suffered avoidable harm as a result of substandard care.

We strongly support the necessity for the two systems to remain distinct.  If financial redress is ever to be justified, it should only be in the most exceptional circumstances.

Exceptional circumstances

There are some specific circumstances in which we would be supportive of the payment of financial redress to complainants. These are circumstances that should not compromise or blur the necessary distinction between complaints and clinical negligence. We would support a system which awards financial redress for very poor complaints handling and reimbursement to ensure that patients do not end up out-of-pocket for care that should have been provided.

There must be clear guidelines for the situations in which financial redress should be considered and the process must be transparent and well reasoned. This will ensure that patients have a realistic expectation of the circumstances in which financial redress may be awarded. The guidelines are necessary to reduce the risk of confusion, false hopes and of unmeritorious cases being pursued to the detriment of all involved.

In considering the proposed system we looked closely at some of the cases recently investigated by the Ombudsman (Remedy in the NHS – summaries of recent cases (2008)), and have used these to illustrate our positions set out below.

Reimbursement

We would support the reimbursement of expenses in very specific circumstances. These may include: patients who have self-funded treatment to which they were entitled and which they should have received on the NHS; or direct financial loss due to an acknowledged failing on the part of the treating doctor, trust or healthcare organisation.

An equivalent situation is set out in one of the cases investigated by the Ombudsman. The case refers to a situation in which a loan had been taken out to cover the cost of private treatment because the trust failed to transfer the patient for necessary treatment. The Ombudsman recommended that the trust should reimburse the costs of the private treatment and the interest on the loan taken out to pay for the treatment.

We do, however, recognise the difficulties in transparency and consistency that this could expose and would strongly assert our belief that such a system cannot be introduced successfully without guidance on how the award of reimbursement would be assessed.

As a sanction for poor complaints handling

In a number of the cases investigated by the Ombudsman, the incidents were compounded by extremely poor complaints handling. We consider that, in these cases, a financial sanction for poor complaints handling may be a useful mechanism for encouraging the trust or healthcare organisation to improve their processes.

We recognise that there is a huge disparity in the standards of complaints management between organisations. Therefore, a fine paid to the complainant as a sanction in these circumstances would also act as an incentive to improve the complaints system.

A case identified by the Ombudsman in her report refers to a situation in which the maladministration in the handling of the complaint exacerbated the stress and worry of the complainant. The complaint was upheld and the trust paid £250 to the complainant in recognition of the worry and distress caused by poor complaints handling. In this situation the use of financial redress as a sanction for an inadequate complaints procedure is an appropriate response.

Compensation

We are opposed to the payment of financial redress in other circumstances and strongly believe that allowing financial compensation for complaints will lead to blurring of the separate and distinct functions of the complaints and clinical negligence systems. This will cause confusion and dissatisfaction where unrealistic expectations are not met. We would suggest that, in the majority of cases, compensation should be directed to redress through the clinical negligence scheme or the NHS Redress Scheme, once it has been established.

A link between financial compensation and complaints may shift the focus away from providing a full and clear explanation and action to resolve the issues highlighted by the complaint, towards a more limited and cautious response. This would be detrimental to the complainant and would undermine the valuable role that complaints have in improving patient care through learning and openness.

We believe that there is a real risk that the offer of compensation, rather than fines or reimbursement, will increase the number of complainants seeking to have their issue considered by the Ombudsman which, in turn, may lead to funds being redirected away from patient care.

We have concerns that offering compensation to complainants may lead to patients with a valid claim for clinical negligence being under compensated, as they seek compensation through the complaints system rather than through the clinical negligence scheme.

Adequate payments

Not only is it important to define the situations in which financial redress may be available, who determines that financial redress is an adequate response, and how this is determined, should also be defined. Guidelines should be developed to state who decides on the value of the payment and how they reach that decision. It must also be specified that any payment awarded is proportionate to the situation.

Specific comments on the Principles of Good Complaints Handling

The subject of the complaint

We fully recognise the importance of ensuring that the complainant is treated in an appropriate and respectful manner throughout the complaints process and kept informed about the progress of the complaint. However, it is also important to ensure that the person who is the subject of the complaint is also treated appropriately and fairly.  The guidance should reflect this.

Advice should be provided to the subject of the complaint on where to obtain advice or assistance. It is important for healthcare professionals to be aware and reassured that the complaints process does not automatically result in an adversarial process involving the scrutiny of their regulatory body or a clinical negligence case.

Flexibility in response

Medical practices range from single-handed practices to multi-site businesses. There is wide variation in the size and structure of trusts providing healthcare in differing circumstances. The key to an effective complaints handling is a flexible approach but within a consistent framework.

Ensuring that complaints are reviewed by someone other than the original decision maker

The principles specify that the complaint should be reviewed by someone other than the original decision maker. We would suggest that this point needs further clarification. Firstly, if the subject of the complaint is a single-handed GP, there needs to be information available to the patient about who to complain to. This would also rule out a response by the patient’s GP which may simply have needed a clarification of clinical information. We recognise that this will be addressed in the revised complaints procedure and keenly await its publication.

Providing appropriate and adequate remedies

The principles state that adequate and appropriate remedies should be provided. There is little detail in the principles as to what an appropriate and adequate remedy should consist of. It would be valuable for supplementary guidance, for both the investigator and the complainant, to provide further details on how this should be assessed.

Being open and accountable

The importance of openness and accountability is highlighted by the principles set out by the Ombudsman. We have always encouraged our members who have made a mistake to provide a genuine apology, and a full explanation, to put things right where possible and to consider what they might do to prevent similar incidents occurring in the future. However, we recognise that there are situations in which it would not be appropriate to give the full details of the investigation and the response to the complainant. For example, a situation in which the complaint is brought by a relative of a deceased patient who gave express refusal for disclosure of information before death. We would suggest that the guidance should make provision for circumstances in which it is not appropriate to give full details of the complaint to the complainant.

Complaints records

This section refers to the inclusion, within the complaints record, of the evidence that has been considered as part of the investigation and how the final decision was reached. However, we would suggest that this raises issues of data protection and patient confidentiality.

Acting fairly and proportionately

The principles state that public bodies should ensure that they manage unacceptable behaviour. We would question how public bodies will ensure that they manage this and whether or not there is the capacity to do this.