The Public Law Project
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In July 1997, the Public Law Project commenced research into the operation of the 1996 complaints procedures from the perspective of health service users. Its report, entitled ‘Cause for Complaint? An evaluation of the effectiveness of the NHS complaints procedure’, was published in September 1999. |
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Local resolution was reported to be generally satisfactory in practices that were committed to the process but less good with defensive practitioners who merely ‘playedthe game’. A number of concerns were expressed. First, it was apparent from an examination of the decisions of convenors that many practices did not operate fair procedures; many failed to investigate the complaint adequately or to give an adequate explanation at the end of the process. In 47% of the cases examined, the convenor had sent the case back for a further attempt at local resolution. There were also more fundamental concerns. The local procedures failed to take account of the imbalance of power inherent in the relationship between healthcare professional and patient. It was very difficult for patients to challenge the organisation that had treated them. The procedures whereby an organisation investigated its own conduct or performance were unlikely to be impartial. Local NHS complaints procedures were not accountable to any external body. These problems were particularly acute in the primary care sector, where the need to bring the complaint directly to the practice acted as a deterrent to complaining. The handling of a complaint by a small organisation could become uncomfortably personalised. Patients feared retribution such as being removed from the practice list. Some were sceptical about whether they would receive honest or impartial explanations. It was felt that there was a need for complainants to be able to take their grievances to an independent authority which would assume responsibility for overseeing any investigation. |
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Concern was expressed about the inability of the new procedures (particularly at a local level) to deal adequately with complaints that raised serious questions about performance, conduct or competence, such as might place patients at risk. One of the major problems was the inadequacy of the investigation of the complaint. Not only did the complaints manager not always have the necessary skills, there was often a defensive attitude which amounted to ‘collective back-covering’. It was in this area in particular that there was a need for independence and competence in the handling of complaints. |
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Convenors were seen to be less than independent and were perceived as ‘insiders’ of the NHS. Nearly 50% of all the convenors interviewed said that they felt compromised by their role as a non-executive director of the HA. Some had insufficient experience or training to fulfil their functions satisfactorily. |
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The conduct of IRP hearings was also unsatisfactory. It was reported that most panels opted to hear the participants separately. Many complainants felt dissatisfied that they had not been able to hear the doctor’s explanation. There was also a feeling that some panels and assessors were biased towards the NHS. Sometimes, IRP chairmen lacked the necessary skills to function well. |
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The report highlighted the problem, mentioned by Miss Horsfall in evidence to the Inquiry, that HAs and PCTs were unable to monitor the handling of primary care complaints because they had little information about them. This had led to a loss of accountability of practitioners. The authors also reported that the commitment of NHS organisations to using the complaints process as an instrument of change was variable. Not all made much effort to implement IRP recommendations. Concern was expressed about the effect of the dissociation of discipline and complaints procedures. It was noted that there had been a marked decline in the number of disciplinary proceedings taken in primary care. It appeared that there was a preference for dealing with shortcomings by retraining and skill improvement. It was suggested that the drawback to this was the lack of any sanction. There was an appearance that healthcare professionals were not accountable. |
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The report concluded with a number of recommendations. I shall highlight five. First, it was said that primary care patients should be able to complain directly to an officer who was independent of the practice and who would have responsibility for overseeing the investigation of the complaint. Second, it was suggested that the DoH should develop a framework for fast tracking complaints that raised serious questions about performance, conduct or competence which put patients at risk. Such complaints should be considered by a ‘screener’ who would decide whether they should be referred immediately to more formal investigatory or remedial processes. Third, the second stage of the process should be conducted under the auspices of a regional, rather than a local, NHS body, to increase independence and efficiency. Fourth, guidance should be disseminated for the conduct of IRPs to improve fairness and transparency. Finally, accountability should be improved by the provision of information about primary care complaints to HAs, by permitting IRPs to recommend disciplinary action and by keeping complainants informed of the outcome of disciplinary action. |
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In my view, this research was well conducted, reached careful conclusions and recommended sensible measures. Although it did not result in any immediate action, it may well have stimulated the commissioning of further research and may have influenced Government thinking. |
Report on the Research Undertaken by the York Health Economics Consortium
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7.53 |
In 1999, the Government commissioned the York Health Economics Consortium to undertake research into the operation of the NHS complaints procedures. The Consortium published its report (the York Report) in March 2001. As with the work of the Public Law Project, this research appears to have been well conducted. It was, however, more widely based and surveyed the experience of all types of people who operated the procedures as well as those who used them. The findings bear a remarkable similarity to those of ‘Cause for Complaint? An evaluation of the effectiveness of the NHS complaints procedure’, although, as I shall explain, the recommendations were far less radical. |
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Among complainants, there was a high level of dissatisfaction in respect of local resolution and the second stage. At local level, only about one third of complainants were satisfied with the process. Dissatisfaction related to the handling of the complaints, the time taken, unfairness and bias, stressfulness and outcome. Patient interest groups emphasised the difficulty that many patients experienced in complaining directly to a service provider. There were reports of patients being removed from a practice list following a complaint. Specific criticisms related to unhelpful, aggressive or arrogant attitudes of staff, poor communication and lack of information and support. At the second stage, only a quarter were satisfied. Dissatisfaction again related to delay, unfairness and bias, stressfulness and outcome. Only 13% were satisfied with outcome. The main complaint about the second stage was of lack of independence. |
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Among NHS staff who had been the subject of a complaint, there was a high level of satisfaction. Most thought the complaint against them had been handled well and that the process had been fair and unbiased. Some complained that they had not been kept sufficiently informed of progress. In my view, the stark difference between the satisfaction levels of those complaining and those complained against is very significant. It strongly suggests that the procedures were weighted against complainants. |
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In the eyes of most of those involved in the operation of the procedures the view was that they were superior to those in force before 1996. However, the need for improvement was recognised, in particular in respect of the independence of those involved in the second stage. Some of those involved thought that the second stage procedures were too time-consuming and expensive. Some thought that the performance targets were difficult to meet. IRP members wanted better training and feedback. |
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The York Report discussed the policy implications of the findings and made many specific recommendations. In relation to primary care services, the recommendations were developmental rather than radical. The main thrust of the proposals was to ensure that complaints handling at local level was given a higher priority. It was suggested that complainants must be offered the opportunity to complain otherwise than directly to the practice. This was to be achieved by encouraging practices to work together to share information and to offer support in providing acceptable procedures. There should be less discretion afforded to practice complaints managers about how complaints should be handled. Wider use should be made of conciliation. There should be a named individual in each PCT, to whom complainants would have access, with responsibility to ‘handle complaints about member practices’. Also it was proposed that PCTs should receive more information about complaints, including the causes of complaints and the action taken or proposed to prevent a recurrence. PCT boards should receive a quarterly report on complaints and should take responsibility for ensuring that agreed actions were implemented. The quarterly report should be disseminated to local patients’ organisations. Consideration should be given to the development of a National Service Framework for the management of complaints. |
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Proposals for improvement of the second stage related mainly to increased independence of convenors and panels. The second stage should be conducted at a regional or sub-regional level. Consideration should be given to increased powers for panels, for example to summon witnesses and take evidence. Improved training should be provided for all those operating the second stage. The Health Service Ombudsman should be asked to consider how to operate a fast track procedure whereby, in appropriate cases, the second stage would be conducted by the Ombudsman. The board of the relevant NHS body should take active responsibility for ensuring that, following the receipt of an IRP report, an action plan was produced and the action implemented. |
Report of the Commission for Health Improvement into the Case of Peter Green
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In August 2001, the Commission for Health Improvement (CHI) published a report of its investigation into the conduct of a GP, Peter Green, who had been convicted in July 2000 of sexual assaults on a number of patients. The report criticised ‘an NHS culture that did not listen to complaints or treat them inquisitively’and‘an NHS complaints system failing to detect issues of professional misconduct or criminal activity’ over a number of years. Concerns about Green’s conduct had been raised with a variety of different bodies on no fewer than 23 occasions between 1985 and 1997. These included the FHSA, doctors at Green’s practice, the GMC and the police. The complaints had not been logged or cross-referenced and the pattern had not been noticed. |
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The CHI report focussed on the systems failures and did not make specific recommendations for the reform of the complaints procedures. However, it described a telling example of the way in which local procedures can fail completely if the attitude of the practice is not open and fair. One of Green’s victims made a complaint to the practice in 1996. After ‘investigation’, the official response was that there was ‘no evidence that Dr Green was guilty of any professional misconduct or that he had motives other than to benefit you (the complainant) in his treatment of you’. Of course, there was evidence of professional misconduct - from the complainant - but the practice had not taken it sufficiently seriously and had apparently accepted Green’s explanation of what had occurred. |
The 1996 Disciplinary Procedures
