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Complaints & redress - a new way?
31 March 2009
The new complaints system operating from 1 April 2009
has significant consequences for every NHS body.
On 1 April 2009, the Local Authority Social Services and NHS
Complaints (England) Regulations come into force. This brings a new
complaints system into effect, merging health care and adult social
care complaints. It mirrors the creation of a single Regulator for
health and social care in the Care Quality Commission. The strict
process-driven time limits of the previous system are to be
replaced by a more flexible approach to local resolution; involving
the complainant in negotiating the way in which a complaint is
handled, against a long stop review date of 6 months. Any complaint
not resolved at local level will go to the Ombudsman. The
Regulations encourage greater senior accountability for the
complaints process (usually at Chief Executive level). They also
aim to ensure that lessons are learnt to promote patient safety.
There is an obligation to prepare, implement and follow up an
appropriate action plan. An annual report must be published
detailing the number of complaints made, upheld and referred to the
Ombudsman.
The ethos of the Department of Health guidance on the new
regulations is "Listening, Responding, Improving". There is a
renewed emphasis on the need to learn from complaints and to “close
the loop” to feed back into patient safety. For the first time, the
new system applies to both health and adult social care complaints,
but the different systems are not really at the same stage of
development, especially as regards the use of remedies. It appears
that it is the response or remedy expected that could have the most
radical effect on these reforms.
Local Authorities have the power to make financial payments to
complainants under the Local Government Act 2000 s92. There is no
clear equivalent statutory provision for healthcare. Nevertheless,
the Treasury guidance, the Ombudsman’s principles of remedy and the
Department of Health policy appear to be that NHS bodies should be
making cash payments to remedy complaints. This could have
significant implications for the NHS:
- It could lead to pressure to merge low and moderate value
claims with complaints handling; with consequences for resourcing
and training of the staff involved, akin to the scheme envisaged
under the Redress Act 2006
- The Ombudsman will recommend payments for failures in clinical
care, but she will be applying her own principles of good
administration, NOT the standard Bolam test of clinical
negligence
- The legal implications of such cash payments are not clear,
i.e. the statutory power to make them, whether CRU becomes payable,
whether subsequent litigation can or will be prevented, and whether
these payments can be offset from subsequent damages to prevent
double recovery
- There is an end to the bar on the complaints process continuing
when litigation has been intimated, although it may be that the
complaint is simply put in abeyance for the duration of the
litigation
This could lead to a parallel system of compensation being
established, blurring the functions of complaints and claims, and
the standards which they each apply. The knock on effect on legal
privilege and the duplication of time and resources of running two
processes in parallel remains to be seen.
The most significant change seems to be the way in which the
Department of Health and the Ombudsman expect the new complaints
process to be used, particularly in relation to the provision of
remedies. Tangible progress towards these ends is expected
within six months and full implementation within 12-18
months.
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