In the wake of shocking cases of neglect and cover up coming from Mid Staffs hospital, I would like to look at the way that the NHS handles complaints from patients.

For a number of years now, certainly since I have been practicing law, the Health Service Ombudsman has encouraged NHS Trusts to adopt a “level of openness” in the way that they investigate and deal with complaints from patients or their relatives. This contradicts the (then) pressure put onto the working staff not to be a whistle blower or to criticise a member of their team. Accordingly, in practice, I believe that the NHS Trust has remained guarded and defensive, keeping litigation and blame in mind.

In 2009, the NHS complaints procedure was revised to facilitate complaints being handled in an open way. Shortly before she left office in 2011, the then Health Service Ombudsman, Ann Abraham released the findings of her review of the way that NHS handles complaints from patients.

The report raised a number of issues of great concern, and in summary, found that:

• minor matters were not being concluded quickly and instead complaints become escalated into more entrenched disputes because of an unwillingness to accept fault
• complaints were taking too long to resolve, contrary to the guidance that was in place
• patients still felt that they were given poor explanations for what had gone wrong

This report illustrated the defensive nature of the way that the complaints were still being handled by the NHS Trusts. Further – and perhaps of more concern – the report suggested that some patients were actually penalised for making the complaint in the first place.

In response to this report, the NHS made the usual promises of change and review of the system that encouraged us to naively believe that matters would improve.

Unfortunately, reading this year’s review of over 94 Trusts in the UK, the new Health Ombudsman Dame Julie Mellor has concluded that nothing has really changed

Dame Julie has accused the boards of hospitals of adding to patients’ pain and letting poor care continue unchallenged by doing too little to spot and stop serious failings. She has since gone on to warn that hospitals are risking a repeat of the Mid Staffs care scandal by ignoring patients’ complaints, fobbing some off with inadequate explanations of errors and even lying about mistakes.

Dame Julie voiced alarm that problems at Mid Staffs – where the hospital Trust’s leadership were found to have been “blind” to emerging concerns that should have triggered alarm, but that they did not take seriously – may still be happening at other hospitals. Too many boards did not give complaints enough weight and were “defensive” about alleged failings of care when they should instead be demanding answers and changes to medical practice where necessary.

She goes on to demand that the Hospital Governing boards play a significant role in tackling “systemic problems in hospitals” by ensuring they provide proper scrutiny of the culture and performance and making sure they know much more about what is causing concern to patients.
“Not all hospital boards are taking complaints seriously enough and some adopt a defensive response when confronted with service failures. We see example after example of cases where hospitals aren’t using complaints as the vital source of feedback they are,” she says.

Complaints to the ombudsman about the NHS in England have risen sharply from 4,257 in 2007-08 to 14,615 in 2011- 12.

Dame Julie said that the boards must be ultimately responsible for how complaints are handled and must do more to ensure they are dealt with quickly, fairly and truthfully because they “set the tone” for how the hospital operates. “We know from individual cases that organisations lie to us sometimes and that’s not good governance. We have had cases of [medical] records being altered.”

David Behan, chief executive of the Care Quality Commission, the NHS regulator, backed Dame Julie and said that a tougher inspection regime this year will place greater emphasis on boards responding effectively to complaints.

Jeremy Hunt, the health secretary, backed Julie Mellor’s call for boards to be more pro-active. “Complaints can be the earliest symptom of a problem within an organisation and the NHS should use them to learn from and improve their service. Hospital boards must listen to complaints and act on them – there’s no excuse not to.”

Where do we go from here, and what can we expect?

Over the past 14 years, and despite numerous rousing calls for the NHS complaints procedure to be more open and honest, I can say that I have seen the responses from the various Trusts (to formal complaints) generally becoming more detailed and informative in answering the complainants questions. Underlying this however, is certainly a feeling that the Trust are keeping potential litigation in mind, and as such, I have rarely seen the response admit any fault in relation to the care given/ not given to a patient.

Obviously, the Trust are hoping to contain any complaints to this level and not to encourage or facilitate litigation. This is, however , sometimes in total contradiction to the aim of openness and honesty that they say that they are trying to achieve.

I certainly do not expect to see any great changes in the way that the complaints are handled. Rather cynically, I believe that the Trust will endeavour to be seen to be more open and follow the process of investigating a complaint, rather than to provide the information requested by the complainant in a more open and honest way.

I would advise any client coming to me to consider whether or not they would gain anything by first making a formal complaint to the NHS Trust. This could be useful in obtaining some answers to questions about care, and help to determine whether or not litigation is appropriate. I will always assist my client in approaching his/her complaint, and will discuss with them the resultant answer.

Of course, some clients will not wish to have to deal with the NHS Trust directly, and will want to commence investigation of a complaint through their solicitor. This is of course an option available to my client’s and, given the defensive nature of the complaints handling system, and the complicated medical issues usually involved, one which I can understand is the route that many opt to take.