UK: Complaints And Redress : A New Way?

Last Updated: 22 April 2009
Article by Sarah Manning and Ben Troke

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, ie 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 6 months and full implementation within 12-18 months.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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